FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (Kwinana Bulk Jetty Case) [2025] FCA 994

ORDERS

THE COURT ORDERS THAT:

1.    The parties confer as to orders reflecting the Court’s reasons and the timetabling of a hearing on further relief.

2.    The matter be listed for a case management hearing on 5 September 2025 at 9:30 am.

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

REASONS FOR JUDGMENT

DOWLING J

1    The Kwinana Bulk Jetty is part of the greater Fremantle Harbour. Qube Ports Pty Ltd provides “specialist integrated port services” at the Harbour. From at least July 2021, the Maritime Union of Australia Division (MUA) of the Construction, Forestry and Maritime Employees Union was in dispute with Qube as to the terms of a proposed enterprise agreement to cover Qube employees at the Harbour. That dispute led to protected industrial action at the Harbour. It also led to confrontation and events at a picket at the Jetty on 24 August 2021. The applicant, the Fair Work Ombudsman, alleges those events contravened the Fair Work Act 2009 (Cth).

2    The Ombudsman alleges that Mr Jason Gill, the second respondent and an employee of Qube and member of the Union, said threatening and intimidating things to Mr Christopher Copperthwaite, an employee of Qube who continued to work through the protected industrial action, at the Jetty on 24 August 2021. The Ombudsman says those statements constituted breaches of various provisions of the Act by both Mr Gill and the Union. She says further that unknown persons made other statements and engaged in other conduct at the Jetty on that same day, directed at Mr Copperthwaite and Mr Luis Coelho, a labour hire employee engaged by Qube. She says those statements and that conduct also constituted breaches of various provisions of the Act by the Union.

3    For the reasons that follow I find that Mr Gill did make a threatening statement to Mr Copperthwaite on 24 August 2021. I find his conduct constituted breaches of the Act. However, I do not find the Union liable for his statement or for the statements and conduct of unknown persons at the Jetty.

BACKGROUND

4    In or about October 2019, Qube and the Union commenced bargaining for a proposed enterprise agreement that would cover various Qube employees at the Harbour. Qube and the Union were bargaining representatives for that proposed enterprise agreement. During the bargaining, the Union organised protected industrial action in accordance with the Act and in order to advance its claims for the proposed agreement. Qube employees, who were to be covered by the proposed agreement, took that protected industrial action.

5    From around 30 July to 15 October 2021, various people were present at and around the Qube Fremantle operations at the Harbour, including at the gate known as Gate 6.2 at the Jetty, in what the parties described as a picket. The Union admits that a number of Qube employees were present at and around the gates to the Qube Fremantle operations at the Harbour during this period. The Union admits that it engaged in a media campaign in relation to the bargaining on behalf of its members for the proposed enterprise agreement. It also admits that a number of its officials attended at the Harbour from time to time between 30 July to 15 October 2021.

6    The Union accepts that its conduct in the period 30 July to 15 October 2021 included, first, asserting from time to time that protected industrial action would continue unless and until a new enterprise agreement was reached. Second, encouraging people to support Qube employees taking protected industrial action in support of the proposed enterprise agreement, including by attending a protest described as a picket at and around the gates of the Jetty. Third, criticising Qube from time to time, including in relation to bargaining for the proposed enterprise agreement. Fourth, financially assisting Qube employees who engaged in the protected industrial action and encouraging others to do so.

7    The Union further accepts that “from time to time … certain picketers” travelled to the Harbour in cars featuring Union stickers, wore Union branded clothing and waved Union flags, and chanted. I did not understand those admissions to be admissions as to the particular travel arrangements, clothing or conduct of those present at the Gate of the Jetty on 24 August 2021.

8    As explained, the Ombudsman alleges that the most significant events the subject of this application took place on 24 August 2021 at a picket at the Gate of the Jetty. In summary, she alleges that:

(1)    Mr Gill said to Mr Copperthwaite: “You’ll end up dead dog if you keep going like this” (the dead dog statement);

(2)    Mr Gill made barking sounds and yelled the words “scab”, “dog” and “I know where you live” in Mr Copperthwaite’s and Mr Coelho’s direction;

(3)    Unnamed and unknown picketers made barking sounds and yelled the words “scab”, “dog” and “I know where you live” in Mr Copperthwaite’s and Mr Coelho’s direction;

(4)    An unknown picketer whispered to Mr Copperthwaite: “I’ll kill ya”, and other unknown picketers said: “you’ll end up being killed”;

(5)    Unknown picketers repeatedly chanted: “MUA, HERE TO STAY!”;

(6)    An unknown picketer said to Mr Copperthwaite: “while you’re doing this you should think about Charmaine and the kids”;

(7)    An unknown picketer said to Mr Copperthwaite: “I’m going to make it hard for you if you keep doing this”;

(8)    Unknown picketers said to Mr Coelho: “you dog”, “you scab”, and “I am coming to get you”, and “you will suffer for life like the rest of the scabs”;

(9)    An unknown picketer said to Mr Coelho: “You should have become an MUA member and joined the picket line”;

(10)    An unknown picketer said to Mr Coelho: “Go in my doghouse” and/or “Oh you can sleep with my dog”; and

(11)    An unknown picketer made a hand gesture to the effect of a shooting gun which he aimed at Mr Coelho and then at Mr Copperthwaite, and also silently mouthed the words “Bang! You’re dead”.

Each of these allegations are addressed below.

9    On 25 August 2021, Qube stood down Mr Gill “pending an investigation into a misconduct incident that occurred at the Kwinana Bulk Jetty on 24 August 2021”. There was no evidence that Qube stood down any of its other employees as a result of events at the Jetty on 24 August 2021.

10    On or about 15 October 2021, Qube and the Union reached an in-principle agreement as to the key term in dispute in the proposed enterprise agreement: a term concerning shift notification procedures. Immediately after the in-principle agreement was reached the protected industrial action ceased and the picket was disbanded. The Union admits that it organised, promoted and participated in the disbanding of the picket.

11    On 7 December 2021, after exchanges between Qube and Mr Gill and his representatives, Qube terminated the employment of Mr Gill as the result of “serious misconduct” arising from the events on 24 August 2021.

12    The Ombudsman commenced this proceeding by originating application and statement of claim on 24 March 2022. She amended her statement of claim, pursuant to leave given by me, on 24 May 2024. The Ombudsman seeks declarations and penalties against both Mr Gill and the Union for contraventions of s 343 (prohibiting coercion with respect to workplace rights), s 346 (prohibiting adverse action with respect to union membership or industrial activity) and s 348 (prohibiting coercion with respect to industrial activity) of the Act. She also seeks compensation for Mr Copperthwaite and Mr Coelho for the loss she says they have suffered as the result of the contraventions.

WITNESS EVIDENCE – RELEVANCE AND GENERAL OBSERVATIONS

13    The Ombudsman led witness evidence from five witnesses. The respondents did not lead any witness evidence. The evidence of the Ombudsman’s witnesses is discussed in detail when addressing each of the allegations or other events. However, the following is a summary of the positions and relevance of those five witnesses with some general observations about the manner in which they gave their evidence.

Mr Christopher Copperthwaite

14    For the period of the picket, July to October 2021, Mr Copperthwaite was employed by Qube as a Shift Manager. However, during that period he performed stevedoring duties rather than shift management duties.

15    Mr Copperthwaite gave general evidence about conduct at the Jetty in the period leading up to 24 August 2021. He gave evidence of the events on 24 August 2021, particularly the circumstances of the picket on that morning and the things said which were directed at him. He also gave evidence of the events that immediately followed on that day and after. Mr Copperthwaite wrote a note on the day of the events on 24 August 2021 that briefly described the events. He also attended the Kwinana Police Station on that day and completed an incident report. Mr Copperthwaite gave an oral account of the events to Australian Building and Construction Commissioner Inspector Robert Tonev on 24 February 2022. That account is recorded in a file note which Mr Copperthwaite signed agreeing that it was an accurate record. Mr Copperthwaite prepared an amended outline of evidence dated 24 May 2024 and further amended outline of evidence dated 29 June 2024. Both were admitted into evidence.

16    There were parts of Mr Copperthwaite’s evidence that were not entirely consistent with his earlier accounts as recorded in writing or in the interview with Inspector Tonev. There were parts of his evidence where he accepted that his recollection may have been faulty. These are discussed below. However, I do not consider that any error or concession on those matters was enough to undermine the material and most serious aspects of his evidence.

17    In CCL Secure Pty Ltd v Berry [2019] FCAFC 81, the Full Court (of McKerracher, Robertson and Lee JJ) observed (at [94]) that it has been a long time since the maxim “false in one thing, false in everything” was part of the common law, its broad applicability having been rejected long ago. The Full Court observed that it is trite that the tribunal of fact (be it a judge or jury), having seen and heard the witness, is to decide whether the evidence of the witness is worthy of acceptance and this may involve accepting or rejecting the whole of the evidence, or accepting some of the evidence and rejecting the rest, citing Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [118]-[123] (O’Loughlin J).

18    On the important aspects of Mr Copperthwaite’s evidence about the statements made to him on 24 August 2021, I found Mr Copperthwaite to be credible and largely consistent with his written record and conduct on and after that day. Mr Copperthwaite made concessions but his versions of the exchange with Mr Gill were largely consistent. They were not undermined by a contrary account, or any account, from Mr Gill.

Mr Luis Coelho

19    Mr Coelho was employed by Pivotal Personnel Pty Ltd in the role of stevedore from May 2021. Pivotal supplied labour to Qube. Between May and December 2021, Mr Coelho was engaged by Pivotal as a casual stevedore on call out to Qube. Mr Coelho performed the work of stevedores who were otherwise taking protected industrial action. Mr Coelho described his work as “general labouring”.

20    Mr Coelho gave evidence of conduct at the Jetty in the period May to December 2021. He gave evidence of the events on 24 August 2021, particularly the circumstances of the picket on that morning and the things said, and actions taken, which were directed at him. He also gave evidence of the events that immediately followed that day and after. Mr Coelho wrote a note on the day of the events on 24 August 2021 that briefly described the events. He gave an account of the events to Inspector Tonev on 28 February 2022. That account was recorded in a file note which Mr Coelho signed agreeing that it was an accurate record.

21    Mr Coelho was a combative witness who often had to be reminded to answer the question. He gave evidence that he attended at the Harbour “two to three shifts per week” during the period of the picket. There is a risk that some of his evidence might have been conflated from days other than 24 August 2021. However, I accept his evidence where it accorded with written accounts of the events or video footage of the events or where it accorded with other witness evidence. There were occasions where it appeared Mr Coelho had exaggerated some aspect of his evidence. However, where it accorded with other evidence I accept it. As with Mr Copperthwaite, I do not approach Mr Coelho on the basis of “false in one thing, false in everything”.

22    I am also careful not to place too much emphasis on my assessment of Mr Coelho’s demeanour. In Fox v Percy [2003] HCA 22; 214 CLR 118 at [30], Gleeson CJ, Gummow and Kirby JJ cited with approval Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 LI L Rep 140 at 152, where Atkin LJ observed that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour. As I say, I weigh Mr Coelho’s evidence against the evidence of others and matters recorded in writing by him and others.

Mr Michael Kranendonk

23    Mr Michael Kranendonk was the Manager of Western Australia for Qube from 2019. He was responsible for the Qube business at ports including the Harbour. He gave evidence about conduct at the Harbour in the period July to October 2021. He was not present at the Gate when the relevant events occurred on 24 August 2021, however, he gave evidence of events that immediately followed on that date and the following days. He gave evidence about his role in the events of 24 August 2021 and his conduct and events immediately after. I found him to be a witness who gave frank and forthright evidence.

Mr Michael Rigoli

24    Mr Michael Rigoli worked at the Harbour during the period July to October 2021. He was engaged by Pivotal, on a casual basis, to perform work for Qube. Mr Rigoli only worked “a couple” of shifts at the Jetty. He gave evidence about entering the Jetty when he performed that work on an unknown date shortly before 24 August 2021. He believed the date was “around 22 August 2021” but accepted that he could not be sure. I generally accept the evidence of Mr Rigoli; however, its limited scope and lack of detail meant it did not greatly assist the Ombudsman’s case.

Dr Anthony Mander

25    Dr Anthony Mander is a consultant psychiatrist. He was asked to prepare a medico-legal report as to the effects of the conduct at the Jetty on 24 August 2021 on Mr Coelho. Dr Mander was cooperative in his efforts to assist the Court. The attack on his report, and oral evidence, largely turned on whether the information given to him by Mr Coelho was consistent with previous statements made by Mr Coelho about the impacts of the events. Those matters are addressed under that section of these reasons dealing with compensation for Mr Coelho.

ALLEGATIONS AND FINDINGS PRIOR TO 24 AUGUST 2021

26    Whilst the alleged contraventions of the Act concerned events on 24 August 2021, the Ombudsman relies on conduct before and after that time. She does so principally to establish the liability of the Union. She relies on at least the establishment of the picket, the media campaign that supported the picket, the conduct at the picket on days other than 24 August 2021, and the disbanding of the picket. In those circumstances it is necessary for me to describe and assess the events leading up to 24 August 2021.

Events prior to 24 August 2021 – evidence and factual findings

People and background to events prior to 24 August 2021

27    The Union admitted that from around 30 July to 15 October 2021, various people picketed the gates of Qube’s Fremantle operations, including the Gate at the Jetty. It admitted that “a number” of Qube employees were present at the Gate during this period. While the Ombudsman submits that a “substantial number” of the picketers were Qube employees, the evidence does not establish how many Qube employees attended the picket and when they did.

28    The most active officers of the Union described by the pleadings and evidence were: Mr William Tracey, the Divisional Branch Secretary of the Western Australian branch of the MUA Division of the Union and the State Assistant Secretary of the Western Australian branch of the Union; Mr Doug Heath, the State Joint Vice President of the Western Australian branch of the MUA Division of the Union and the Divisional Branch Presiding Officer (and Divisional Deputy Branch Secretary) of the Western Australian branch of the MUA Division of the Union; and Mr Paul Brett, an organiser of the Western Australian branch of the MUA Division of the Union. The Union admitted that each of Mr Tracey, Mr Heath and Mr Brett was an officer and employee of the Union acting within the scope of his actual or apparent authority for the purposes of s 793 of the Act and acting within his capacity as an officer for the Union for the purposes of s 363 of the Act. Whilst other officials of the Union were identified in the Ombudsman’s Amended Statement of Claim, they did not feature significantly in the evidence or submissions of the Ombudsman.

29    Mr Gill was employed by Qube from on or about 7 September 2007 until 7 December 2021. He was employed in the position of Operator Grade 4. There was no dispute that he was at the picket at the Gate on 24 August 2021. It was admitted that he was a member of the Union. It was denied that he was an agent of the Union. It was denied that he was acting in a representative role or capacity for the Union.

Media campaign

30    The Ombudsman alleges, and the Union admits, that the Union engaged in a media campaign in relation to the bargaining on behalf of its members for a new enterprise agreement. There were no admissions as to the form of that campaign.

31    The Ombudsman alleges that the media campaign was constituted by social media, traditional media and posts to Union websites. That allegation is particularised by a schedule attached to the Amended Statement of Claim which sets out: (a) social media posts by accounts said to be operated by the Union and its officials; (b) media releases issued by the Union; (c) traditional media appearances by Union officials; and (d) posts to Union websites. Not all of the material referred to in the schedule was tendered in evidence. The Ombudsman tendered and relied upon the Facebook posts of the Union and one Newsletter from October 2021.

32    The Ombudsman relied on the media campaign as one of the circumstances establishing that the Union organised or engaged in the conduct on 24 August 2021. She relied on Mr Gill’s knowledge of some or all of the media campaign as a particular to the allegation that Mr Gill was acting as an agent for the Union on 24 August 2021.

33    The posts in the schedule date from 29 July 2021 to 31 August 2021. The Ombudsman in opening took the Court to posts made before the dispute (from 14 July 2021 to 22 July 2021), posts made during the period of the dispute, and a post made on 10 November 2021 after the dispute.

34    The posts pleaded either:

(1)    Complained about the lack of professional, safe and timely work practices as the result of the non-union labour working at the Harbour during the industrial action;

(2)    Provided updates about the status of the protected industrial action or attempted to rally donations for the striking workers or encouraged attendance at mass rallies on 13 August 2021 and 7 September 2021 or thanked those who attended those mass rallies; or

(3)    Were titled the “Pube Logistics Bedtime Stories”. This was a three-part narrative involving supposedly “fictionalised” characters on the picket.

35    All of these posts were made using the “Maritime Union of Australia – WA Branch” Facebook account. The Ombudsman submits that the “MUA should be able to moderate the chat”, meaning moderate the comments on the social media posts. However, there was no evidence about their ability to do so.

36    The Ombudsman relies on the social media campaign to say the Union “encourage[ed] the behaviour that ultimately occurred on 24 August 2021” as the social media campaign demonstrated “persistent denigration” and “dehumanisation of workers that were crossing the picket line, so they became fair game”. The Ombudsman also says that the social media posts discuss the attendance on the picket, which demonstrates that “the Union kn[ew] what’s going on, on the picket”.

37    The Ombudsman also relies upon what it submits were comments on some of the social media posts by Mr Chris Cain. The Union admitted that Mr Cain was the Divisional National Presiding Officer of the MUA Division at all relevant times. Mr Cain, or someone posting under his name, appears to have posted comments in response to social media posts made on 4 August 2021, 8 August 2021, 10 August 2021, 20 August 2021, 23 August 2021, 29 August 2021 and 2 September 2021.

38    The Ombudsman complains that the Union failed to moderate or control behaviour at the picket, including by its social media presence. She says that there is no evidence the Union sought to control the behaviour on the picket. She refers particularly to the use of the words “our picket” in one post and one document headed “offshore update” to demonstrate the Union’s control of the picket. She also relies upon the presence of the officials of the Union throughout the period of the picket. The Ombudsman also draws attention to a social media post in which the MUA stated: “we have 100% union membership with Qube in Fremantle”.

39    The final post of the “Bedtime Stories of Pube Logistics” series occurred on 24 August 2021. The Union continued the social media posts about the dispute until a new agreement was agreed. The “Qube members” endorsement of the proposed agreement was announced on the Union’s social media on 9 November 2021.

40    The social media posts did not include encouragement to engage in any particular type of unlawful conduct. However, the Ombudsman says that the: “nature of a picket during an industrial dispute is volatile. A picket can be fluid. At one moment it can be peaceful, at the next moment the mood can shift towards aggression, abuse, threatening behaviour and intimidation”. The evidence did not establish that a picket would inevitably, or often, lead to unlawful conduct. The Ombudsman seems to submit that I should infer such a thing; namely, that the Union did or should have understood that the picket would “shift towards aggression, abuse, threatening behaviour and intimidation”. It says the picket was consistently abusive, intimidatory and threatening in the lead up to 24 August 2021.

41    A picket is not necessarily unlawful. In Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108, 91 FCR 463, the Full Court considered whether the employer had acted unlawfully in terminating employees for participating in protected industrial action and picketing. In doing so, Wilcox and Cooper JJ said at [69] (citing French J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17 at 32), “picketing is unlawful only if it involves obstruction and besetting”.

42    The evidence of the conduct of the picket prior to 24 August 2021 was given by Mr Kranendonk, Mr Rigoli, Mr Copperthwaite and Mr Coelho. I address that evidence below and assess whether it is accurate to say that the picket “was consistently abusive, intimidatory and threatening in the lead up to 24 August 2021”. I return to the question of the Union’s control over the picket, including by social media, when addressing the Union’s liability for the picket.

Mr Kranendonk’s evidence of events prior to 24 August 2021

43    During the period of protected industrial action, Mr Michael Kranendonk was Western Australian Manager of Qube. Mr Kranendonk’s role was to oversee Qube’s operations. Mr Kranendonk said that during the industrial action, he attended port locations 90% of the time. Mr Kranendonk gave evidence that when he would attend a Fremantle Port location where Qube was operating during the period of industrial action he would observe picketers at the entrance points.

44    Mr Kranendonk gave evidence about the conduct of the picketers. Mr Kranendonk said: “the number of picketers would range from around 15 to 30, on occasions with flags and banners”, and they would stand around “staring at people coming through the gates, holding their phones, videoing”. He said: “on occasions, there may have been 70 [picketers]”. He gave evidence that some of the picketers were “a little bit disgruntled”, although he added, “[I] can’t really say people were disgruntled towards me”. He said when other people were crossing the picket line, the picketers “would yell out, ‘Do you feel proud?’ I hope your mum and dad are proud of you’, that kind of banter”. Mr Kranendonk observed picketers, including Mr Doug Heath, videoing “people coming in and out of the gate”. He observed picketers walking up to truck drivers trying to enter the work site, “having a chat to the driver. And then the driver will turn around and go away”.

45    I accept the evidence of Mr Kranendonk. His evidence was frank and forthright. He made no effort to overstate or understate the events and circumstances that he witnessed. Mr Kranendonk’s evidence of “disgruntled” picketers “standing around” and engaging in “banter” was not consistent with the Ombudsman’s submissions that the picket was “consistently abusive, intimidatory and threatening”. Although, I accept that “videoing” has the potential to intimidate, but it was not explored in any detail as to how often or how this was done.

46    Mr Kranendonk also gave uncontested evidence about how often Union officials and Mr Gill were present at the picket. Mr Kranendonk’s evidence was that he would see:

(1)    Mr Tracey roughly 70% of the time on the picket line;

(2)    Mr Heath a little bit less than 70% of the time;

(3)    Mr Brett roughly 70% of the time on the picket line; and

(4)    Mr Gill 70% of the time on the picket line.

47    From that evidence it is unclear whether those people were there only at the start of each day, or whether they were there for part or the whole day. I expect, but it was unexplained, that Mr Kranendonk saw those officials on his entry rather than observed them throughout the day. Taking the evidence at its highest, Mr Tracey, Mr Brett and Mr Gill attended the picket at least 63% of the time (to account for the 10% of the time Mr Kranendonk did not attend port locations for work), and Mr Heath, “a little bit less”. However, that does not tell me how long those officials were present or what they witnessed. Taken together with Mr Kranendonk’s other evidence, that evidence does not enable me to conclude, as the Ombudsman urges, that these officials “must have been aware of” and “authorised, encouraged, participated in, and condoned” behaviour that was “consistently abusive, intimidatory and threatening”.

Mr Rigoli’s evidence of events prior to 24 August 2021

48    Mr Rigoli worked on a casual basis for Pivotal to perform work for Qube during the period of the industrial action. It was not in dispute that Mr Rigoli worked “a couple of shifts” at the Jetty during the industrial action. Mr Rigoli gave evidence about entering the Jetty on one morning. There was a dispute about the date. Mr Rigoli believed it was 22 August 2021 but conceded it could have been another day.

49    Mr Rigoli gave evidence that he attended his shift at the Jetty on that day and as he arrived there were roughly 20 to 25 picketers at the Gate. Mr Rigoli said that he was called “a number of names”, including a “slag”, a “scab”, and a “thief”. He said that there was a “statement, that I was, obviously, stealing their work”. He said that there were “flags, and there was a banner”.

50    That was the extent of Mr Rigoli’s evidence. He gave no evidence about the manner in which the statements were made. He gave no evidence about the gestures or other behaviour of those that made the comments. He did not describe the events as abusive, threatening or intimidatory. He did not describe or name any persons present or any person that made the comments.

51    I am not satisfied that those events can be described as threatening. In any event they are evidence of one day. I accept that those words have the potential to be abusive or intimidatory, but without more evidence of the surrounding circumstances on those days and others, I do not accept those events described by Mr Rigoli demonstrate consistently abusive, intimidatory or threatening conduct.

Mr Copperthwaite’s evidence of events prior to 24 August 2021

52    Mr Copperthwaite gave evidence that between 30 July 2021 and 23 August 2021, when he arrived at work, picketers would say to him that he was a “scab”, “bottom feeder”, a “dog”, people would say “check your moral compass” and there was a lot of “name-calling”, “video recording with phones” and “pictures taken” as well as calling out Mr Copperthwaite’s brother’s name and calling his brother “the same sort of names: scab, bottom feeder, dog”. He gave evidence that there would be no less than 10 picketers present at any given time, and that there could be up to 40 or 50 picketers.

53    Mr Copperthwaite gave only limited evidence about the manner in which the statements were made (prior to 24 August 2021). He gave evidence that picketers called him names through the window of his car. He stated to Inspector Tonev that he was initially intimidated by the picketers’ behaviour but “overtime almost became immune to the constant behaviour”. He otherwise did not describe the events as abusive, threatening or intimidatory. He also did not describe or name any persons present or any person who made the comments. The only evidence of any incident reported by Mr Copperthwaite was with respect to 24 August 2021. I accept that the circumstances prior to 24 August 2021 would be unpleasant for Mr Copperthwaite, and while I place some weight on his evidence that he was “initially” intimidated by the picketers’ behaviour, without more evidence of the surrounding circumstances on those days, I am not able to accept those events were “consistently abusive, threatening or intimidatory”.

Mr Coelho’s evidence of events prior to 24 August 2021

54    Mr Coelho’s evidence about events prior to 24 August 2021 was different to the other witnesses. The respondents submit that Mr Coelho’s evidence was generally unreliable and Mr Coelho lacked any credibility. They say that his evidence should be rejected. Other than this general complaint, there was no specific challenge to Mr Coelho’s account of his experience at the picket line between 30 July 2021 and 23 August 2021.

55    Mr Coelho said that when he arrived at the Gate, picketers would call him a “dog”, a “scab” and a “wanker”. Mr Coelho also said the picketers said that “they knew where [he] lived” and that they “were coming to get” him, and “go back to where you come from” and that he was a “Portuguese cunt”. Mr Coelho said that the picketers held MUA flags and the cars sometimes, it is unclear how often, would have aerial flags and union stickers on them. Mr Coelho also gave evidence that once or twice a week “some bloke” would put his thumb across his throat as if he was going to cut Mr Coelho’s throat. There was no evidence about who made these remarks and gestures and the dates on which they occurred.

56    I put the “I know where you live”, “coming to get [him]”, and “throat cutting gesture” allegations in a different category to the other evidence of Mr Coelho and the evidence of Messrs Kranendonk, Rigoli and Copperthwaite. They are more serious and of themselves are intimidatory and threatening.

57    As I say above, I found Mr Coelho to be a combative witness who appeared to exaggerate some aspects of his evidence. However, I accept his evidence where it accords with written accounts of the events or video footage of the events or where it accords with Mr Copperthwaite’s or other witnesses’ accounts. Whilst I accept that the comments and gestures described by Mr Coelho were of a more serious nature, I have endeavoured to weigh that evidence together with the evidence of the other witnesses at the picket prior to 24 August 2021.

Findings and conclusions about events prior to 24 August 2021

58    I weigh the evidence of Messrs Kranendonk, Rigoli, Copperthwaite and Coelho together. On balance, I do not find that the picket prior to 24 August 2021 was consistently abusive, intimidatory and threatening. I am also not satisfied that the evidence establishes the awareness by the Union officials present of any consistently abusive, intimidatory or threatening conduct. I come to that conclusion because I am not satisfied that the conduct at the picket was consistently of that nature, and because the Ombudsman has not established with any certainty the days and periods on which the officials were present and what occurred at the times on which they were.

ALLEGATIONS AND FINDINGS – GILL 24 AUGUST 2021 ACTION

59    The relevant conduct on 24 August 2021 at the Gate of the Jetty is set out in Part D1 of the Amended Statement of Claim and defined by the Ombudsman as the 24 August 2021 Actions. It is also alleged that Mr Gill participated in all of those actions, and Mr Gill’s conduct is defined in the Amended Statement of Claim as “the Gill 24 August 2021 Action”. However, the Ombudsman conceded on the first day of the hearing that Mr Gill’s impugned conduct was limited to that conduct described at [70(a)-(c)] of the Amended Statement of Claim. I shall treat that more limited approach to the conduct of Mr Gill as the Gill 24 August 2021 Action. I deal first with that conduct and the alleged contraventions said to arise from that conduct.

Factual allegations regarding the Gill 24 August 2021 Action

60    First, the Ombudsman says upon Mr Copperthwaite’s arrival at the Gate, the picketers, including Mr Gill, made barking sounds at Mr Copperthwaite and Mr Coelho. The Ombudsman also says that the picketers, including Mr Gill, yelled at both Mr Copperthwaite and Mr Coelho calling them “scabs” and “dogs” and saying “I know where you live”.

61    Second, the Ombudsman says that while Mr Copperthwaite was escorting Mr Coelho through the Gate, Mr Gill came within 30 centimetres of Mr Copperthwaite and said to him: “you’ll end up dead dog if you keep going like this”. By “keep going like this”, the Ombudsman says Mr Gill meant not taking part in and supporting the picket and/or not taking part in the protected industrial action.

Factual findings – Gill 24 August 2021 Action

62    I have assessed the Gill 24 August 2021 Action by reference to:

(1)    The evidence of Mr Copperthwaite;

(2)    The evidence of Mr Coelho;

(3)    The evidence of Mr Kranendonk;

(4)    The available documentary evidence;

(5)    The video footage from inside the Gate (“Cam[era] 740 (KBJ Main Gate)”) and the video footage from outside the Gate (“Cam[era] 711 (KBJ Entry Mid Low)”); and

(6)    The concession from Mr Gill’s counsel that Mr Gill was present and did speak with Mr Copperthwaite at the Gate on the morning of 24 August 2021.

63    I make the following factual findings.

Events immediately before Mr Gill’s threat

64    The closed circuit television (CCTV) footage from inside the Gate records that Mr Coelho arrived by car near the entrance of the Gate at 5:41 am on 24 August 2021. He pulled over on the left of the entrance road some way before the Gate and before where people were standing on the right hand side of the Gate. That is consistent with Mr Coelho’s evidence and is shown on the video taken from inside the Gate.

65    Mr Coelho and Mr Copperthwaite had previously arranged that Mr Copperthwaite would escort Mr Coelho through the Gate. That arrangement was necessary because Mr Coelho did not yet have his Maritime Security Identification Card. Whilst there was no evidence about the details of that arrangement or when and how it was reached, the existence of the arrangement is consistent with the evidence of both Mr Coelho and Mr Copperthwaite.

66    At around 5:53 am, Mr Copperthwaite walked towards the Gate from the inside. When Mr Coelho saw Mr Copperthwaite, Mr Coelho drove his car from his parking position (on the left of the road and back from the Gate) towards the front of the Gate.

67    As Mr Copperthwaite approached the Gate (from the inside) the picketers moved their position. Mr Gill moved across the Gate and to the left of the Gate (as viewed from the outside). Mr Gill then moved back towards the centre of the Gate and near the communications box on the outside of the Gate. The communications box is an unmanned electronic box that allows security staff to see and speak with people at the box. There is a communications box outside the Gate for those entering, and inside the Gate for those exiting.

68    Mr Copperthwaite went through the pedestrian turnstile at the Gate, from inside the Gate to outside the Gate. The pedestrian turnstile is in the centre of the gate and near the communications box for those entering the Gate. Mr Coelho’s vehicle was now at the Gate approximately two to three metres from Mr Copperthwaite and near the communications box.

69    Mr Copperthwaite then spoke to security through the communications box outside the Gate.

70    Some of the people present, including Mr Gill, were standing near Mr Copperthwaite. Mr Coelho remained inside his car, still approximately two to three metres from Mr Copperthwaite.

71    I will return to the CCTV footage when I discuss the direction and distance of Mr Gill and Mr Copperthwaite below.

Mr Gill’s threat

72    Mr Copperthwaite gave the following account in his evidence in chief of what the Ombudsman said was the threat made by Mr Gill to Mr Copperthwaite:

Did anything occur whilst you were at the communication box?---Yes. Yes.

What happened?---I had one of the members approach me and it was – he didn’t like me being out there and told me that, “You will end up dead dog, if you keep going like this”.

Had you seen that person before?---Yes.

In what circumstances had you seen that person before?---I had worked with that person previously. A couple of times.

Roughly over what period would you have done that?---Over three or four months.

In what year?---It was the same year.

And did you know that person’s name?---I didn’t know his full name, as a lot of people there go by nicknames. But I knew the nickname that he was going by.

And what was his nickname?---Gilly.

When that statement was made to you, how close was that person to you?---He was within a foot from my face.

Did you – what type of view did you have of him?---There was a clear view because there was a light right behind my head coming from the communications box at the time.

The person you know as Gilly – how long did he stay near you?---He was probably in my presence for the majority of the time I was outside the gate. He was only directly in my face to say a few – so a few minutes.

…

Around the same time, people were yelling – yelling you should think about your – Charmaine and the kids – Charmaine being my partner, so I was very fearful of, you know, what could happen to them.

Did anyone else – was that comment about Charmaine – was that done by Gilly or someone else?---No. That was – I don’t know who that was done by. It was just from the crowd.

Did you receive any other threats whilst at the communication?---Yes. I – I remember a voice from behind me saying that I will kill you.

73    Mr Copperthwaite then informed Mr Kranendonk about the incident on the same day. Mr Copperthwaite gave evidence that he “got a hold of Michael Kranendonk and told him what happened … I told him that I had to go out front of the gate to escort Luis in because he was having issues getting in and that I was threatened”. Mr Kranendonk described this conversation in terms of him receiving a telephone call from Mr Copperthwaite that morning in which Mr Copperthwaite said that he: “got threatened to be killed with a hand gesture of a gun. And his family is in strife, jeopardy. ‘We know where you live’”.

74    Mr Kranendonk said that he told Mr Copperthwaite that he needed to report the incident to the police and write a statement about what occurred. Mr Copperthwaite’s statement dated 24 August 2021 provided:

TUES

24/8/2021

THEY TOLD ME THAT I IF CONTINUED DOING WHAT

I WAS DOING THAT “I WOULD END UP BEING KILLED.”

THEN ONE WHISPERED “I’LL KILL YA”

THEY THEN CONTINUED TO TELL ME TO THINK ABOUT WHAT

THIS MIGHT DO TO MY FAMILY.

ONE MAN ALSO THREATENED LOUIS BY MAKING A GUN

HAND GESTURE.

AS I WENT TO WALK BACK THROUGH THE

GATE SOMEONE MENTIONED CHARMAINE AND MY KIDS.

75    Mr Copperthwaite and Mr Kranendonk attended the Kwinana Police station on 24 August 2021. An incident report recorded that Mr Copperthwaite reported to police: “threatening remarks that have been made to him by another employee of Qube … the words indicated that he would be killed and another shouted ‘I’ll kill ya’”. Mr Kranendonk informed the police that Qube would “deal with this internally as bullying at work when they iddentify (sic) who it is that has made the threatening remarks”. The incident report also recorded that “the comments which relate to the threats were vague and not direct and from description are off the cuff remarks made against someone who is not standing with them on the picket line”.

76    On 24 August 2021, Mr Kranendonk requested and received a copy of the CCTV footage of the incident. Mr Kranendonk identified Mr Gill on the footage and created a still image where Mr Gill was visible. It appears that Mr Kranendonk identified Mr Gill due to Mr Copperthwaite’s description of Mr Gill’s “bush jacket” or “chequered jacket”. The next day, on 25 August 2021, Mr Kranendonk presented that image to Mr Copperthwaite and asked: “is this the guy that was in your face threatening you?”. Mr Copperthwaite said words to the effect of “yes, that’s him” or “that’s the guy that was standing in front of me that I said would end up like a dead dog if I kept going the way I was going”.

77    On 5 November 2021, Qube sent Mr Gill a letter inviting him to respond to particular allegations in writing. These allegations included “verbally threatening Mr Christopher Mr Copperthwaite and Mr Luis Coelho” and saying words to the effect of “threatening to kill Mr Copperthwaite and Mr Coelho”.

78    Mr Copperthwaite was interviewed by Inspector Tonev on 24 February 2022. Relevantly, Inspector Tonev recorded Mr Copperthwaite as saying to him:

They started yelling scab, dog and the man I now know to be Jason Gill said “You’ll end up dead dog if you keep going like this”

…

They started yelling “MUA, here to stay” over and over.

Someone I couldn’t identify said “While your (sic) doing this you should be think about Charmaine and the kids”

…

One guy with a ski mask on, (dark clothes) pointed his hand in a gun gesture Louis (sic) and then me.

79    On 24 May 2024, the Ombudsman filed an amended outline of the evidence to be given by Mr Copperthwaite. On 29 June 2024, the Ombudsman filed a further amended outline of Mr Copperthwaite. The further amended outline was admitted into evidence. It relevantly provided:

13. The picketers started barking like a dog at Mr Copperthwaite as he approached and entered the gate. The picketers started yelling and calling him names such as "scab" and "dog".

14. A Qube employee, who Mr Copperthwaite later discovered was Jason Gill, was standing approximately 30 cm away from Mr Copperthwaite. Mr Gill said to Mr Copperthwaite words to the effect of "you'll end up dead dog if you keep going like this". By "this" Mr Copperthwaite believed Mr Gill meant if he continued working through the industrial action.

15. Mr Copperthwaite also heard other picketers say to him words to the effect of "you'll end up being killed". One picketer whispered to him "I'll kill ya".

16. The picketers then started yelling and chanting the words "MUA, here to stay”.

17. One of the picketers said words to the effect of "while you're doing this you should be thinking about Charmaine and the kids". This made Mr Copperthwaite feel very mad and upset as they were referring to his family.

18. After this comment was made, Mr Coelho started to call out to the picketers, as if to draw attention away from Mr Copperthwaite. At this time, Mr Coelho was sitting in his Ute which was approximately two metres away from Mr Copperthwaite. The picketers said to Mr Coelho "shut up".

19. One man who was wearing dark clothes and what appeared to be tinted sunglasses, used his hand to form a gun gesture and pointed it at Mr Coelho. The man was tall and skinny. He was wearing a black hoodie and black pants and shoes. The man then pointed the "gun" at Mr Copperthwaite. Mr Copperthwaite felt intimidated and his heart was racing.

20. A truck then pulled up behind Mr Coelho. Mr Copperthwaite asked Mr Coelho to park his Ute off to the side so that the truck could get through. As this occurred, the security guard spoke through the communication box to advise that they had found Mr Coelho on the list. Mr Coelho then drove through the gate.

21. Shortly after the incident occurred, Mr Copperthwaite was asked by Qube to write a statement of the events that occurred.

21A. On a couple of occasions, Mr Copperthwaite had previously worked with the person who had made the threat that "you'll end up a dead dog if you keep going like this". Mr Copperthwaite did not know his name, but only his nickname, which was "Gilly". He believes that on the next day, being 25 August 2021, he was shown by Michael Kranendonk in Mr Kranendonk's office a screenshot from the CCTV footage of 24 August 2021. Mr Copperthwaite confirmed to Mr Kranendonk that the person identified in the screenshot was the person that made that threat. Mr Kranendonk advised Mr Copperthwaite that that person’s name was Jason Gill.

22. Mr Copperthwaite was later shown CCTV footage of the events by Qube and pointed to the individual on the CCTV footage who had said to him: "you'll end up dead dog if you keep going like this". Mr Copperthwaite again identified Jason Gill as the individual on the CCTV footage.

(Original emphasis.)

80    A number of matters arise about the accounts of the threat given by Mr Copperthwaite:

(1)    What was the direction and distance of Mr Gill and Mr Copperthwaite when Mr Gill made the alleged statements;

(2)    Whether there were inconsistent accounts of the threat made by Mr Gill between the accounts in Mr Copperthwaite’s statement, the police incident report, and Qube’s allegation letter of 5 November 2021;

(3)    Whether Mr Copperthwaite knew Mr Gill on and prior to 24 August 2021, and if so, why he did not say so until shortly before the hearing;

(4)    Whether the cross-examination of Mr Copperthwaite, by Mr Gill’s counsel, constituted an admission that Mr Gill and Mr Copperthwaite spoke at the Gate on the morning of 24 August 2021; and

(5)    The reliability of Mr Copperthwaite’s identification of Mr Gill as the person that made the threat.

81    A further matter that arises is the Ombudsman’s submission as to the lack of any contradicting evidence and any available inferences.

What was the direction and distance of Mr Gill and Mr Copperthwaite?

82    The evidence in chief of Mr Copperthwaite was that the direction and distance during the exchange between him and the person whom he said he knew by the nickname Gilly, was as follows:

(1)    When the dead dog statement was made “he [Gilly] was within a foot from my face”, or approximately 30 centimetres;

(2)    He had a clear view [of Gilly] because “there was a light right behind my head coming from the communications box at the time”;

(3)    Gilly was “in my presence for the majority of the time I was outside the gate. He was only directly in my face [for]… a few minutes”;

(4)    Outside the period in which Gilly was said to be in his face, Gilly “was within a couple of metres” of Mr Copperthwaite;

(5)    Overall, the period Gilly was “in [his] presence”, “that period of in your face and a couple of metres” was “the whole time I was out of the gate”.

83    In Mr Copperthwaite’s amended and further amended outline of evidence, he said Mr Gill “was standing approximately 30 cm away from Mr Copperthwaite”. In the note of the conversation made with Inspector Tonev, he is recorded as having said: “Gill was standing less than 30 cm away from me”.

84    In cross-examination, Mr Copperthwaite confirmed that Mr Gill was “standing 30 centimetres away from me”. He also agreed with the proposition that he and Mr Gill were “face to face”, although the words “face to face” were not initially used by Mr Copperthwaite in that exchange, nor were they used in his evidence in chief.

85    As set out above, Mr Gill did not give evidence. Mr Gill submits that Mr Copperthwaite’s account of standing face to face with Mr Gill for a few minutes is denied by the CCTV footage. Mr Gill submits that he is likely to have been directly behind or perhaps slightly to the side of Mr Copperthwaite during the relevant period. Mr Gill submits that the CCTV shows that he was certainly not face to face with Mr Copperthwaite for a few minutes.

86    Mr Coelho did not give evidence about where Mr Gill was standing relative to Mr Copperthwaite.

The CCTV footage of Mr Gill and Mr Copperthwaite

87    As set out above, there was in evidence CCTV footage of the period in which it is alleged that Mr Gill threatened Mr Copperthwaite. That was CCTV video footage from inside the Gate and from a camera attached to a building (camera 740) and CCTV video footage from outside the Gate and from a camera attached to the communications box (camera 711). Both parties relied upon the CCTV footage from both cameras. There was no dispute that the person in the CCTV footage wearing shorts, thongs, a cap and a hooded checked jacket with the hood on was Mr Gill.

88    I am satisfied that the CCTV video footage is consistent with the evidence of Mr Copperthwaite about the direction and distance between him and Mr Gill as discussed above. That is, I am satisfied that Mr Copperthwaite and Mr Gill were approximately 30 centimetres apart and that Mr Gill was “in” Mr Copperthwaite’s face for a few minutes. The CCTV footage relevantly shows:

(1)    At approximately 5:53:20 am, Mr Gill separates from the crowd and begins to approach the Gate (see camera 740). At approximately 5:53:33 am, Mr Copperthwaite becomes visible on camera 740. At approximately 5:53:34 am, Mr Gill becomes visible on camera 711. At approximately 5:53:47 am, Mr Gill walks towards the Gate and towards Mr Copperthwaite (see camera 740). At approximately 5:53:52 am, Mr Gill walks past camera 711.

(2)    At approximately 5:53:56 am, Mr Copperthwaite exits the Gate by the pedestrian turnstile (camera 740).

(3)    Between approximately 5:54:10 am and 5:55:20 am, Mr Gill and Mr Copperthwaite can be seen standing close to each other whilst Mr Copperthwaite is standing in front of the communications box. Mr Gill is recognisable (on camera 740) from his feet (in thongs) and his head (with cap and hood). The video quality does not definitively show that Mr Copperthwaite and Mr Gill’s heads are facing each other. However, there are periods within that time where Mr Gill’s head and Mr Copperthwaite’s head are close. By close, I mean what appears to be 30-60 centimetres. This estimated distance is also indicated by the proximity of Mr Gill’s feet to where Mr Copperthwaite is standing (visible on camera 740). Mr Gill’s feet appear to be pointed towards Mr Copperthwaite. The footage on camera 711 at 5:54:11 am also shows Mr Copperthwaite turning his vision in the direction to where Mr Gill was standing.

(4)    From approximately 5:55:24 am, Mr Gill appears to walk away from Mr Copperthwaite and goes out of view (on camera 740). Mr Gill returns to view (on camera 740) at 5:58:11 am.

(5)    Between approximately 5:58:29 am and 6:00:52 am, Mr Gill and Mr Copperthwaite can again be seen standing close to each other. Again, Mr Gill is recognisable (on camera 740) from his feet (in thongs) and his head (with cap and hood). There are periods within that time where Mr Gill’s head and Mr Copperthwaite’s head are close. Again, by close I mean approximately 30-60 centimetres. The positioning of their bodies is consistent with them facing each other.

89    Consequently, I consider that Mr Gill and Mr Copperthwaite are close together for a period of approximately three minutes. I am satisfied on the balance of probabilities that there were periods during that time that Mr Gill and Mr Copperthwaite would have been facing each other.

Were there inconsistencies in the contemporaneous (and near contemporaneous) accounts?

90    Mr Gill submits that the allegation that the words “dead dog” were used is undermined by contemporaneous (and near contemporaneous) accounts of the events. Mr Gill’s submissions point to, first, the handwritten note by Mr Copperthwaite on 24 August 2021; second, the statement made by Mr Copperthwaite on the day to the police; and third, Qube’s letter of allegations sent to Mr Gill dated 5 November 2021. None of those documents identify that the words “dead dog” were used by Mr Gill, or anyone else. Mr Gill’s submissions draw attention to Mr Copperthwaite accepting in cross-examination that if he had been called a dead dog he would have been absolutely sure to note this fact. Mr Gill submits that the only logical explanation for these documents not referencing the dead dog statement is that the words were not said.

91    The phrase “dead dog” first appears in written evidence six months after the incident in Inspector Tonev’s note dated 24 February 2022. The statement provides that: “the man I now know to be Jason Gill said, ‘You’ll end up dead dog if you keep going like this’”. Similar words were used in Mr Copperthwaite’s tendered outline of evidence and the subsequent amendments to that document. Mr Copperthwaite also gave evidence in cross-examination that on 25 August 2021 he said to Mr Kranendonk, when he identified Mr Gill in the photograph shown to him, “that’s the guy that was standing in front of me that I said (sic) would end up like a dead dog if I kept going the way I was going”.

92    I am satisfied that there are no fundamental inconsistencies in the contemporaneous (and near contemporaneous) accounts identified in Mr Gill’s submissions which preclude me from accepting that Mr Gill said the dead dog statement to Mr Copperthwaite.

93    The handwritten note of 24 August 2021 contains a threat that: “they told me that if I continued doing what I was doing that ‘I would end up being killed’”. In cross-examination, when asked why he did not mention the dead dog statement in the note, Mr Copperthwaite said: “There was a lot happening at the time”. Mr Copperthwaite gave evidence in examination in chief that the circumstances of him making the statement were to “just [to] put it on record that that happened”. Given these circumstances, I approach Mr Copperthwaite’s handwritten note of 24 August 2021 as not a comprehensive account of all of the events of that morning, but rather that it recorded the significant events without the detail. The note is very short. The relevant significant event is that a threat was made that he would be killed. The nature of the threat that “if I continued doing what I was doing that I would end up being killed” is substantially the same as “You’ll end up a dead dog if you keep going like this”. In my view, the fact that the dead dog statement was not referenced in the note does not mean that the words were not said on 24 August 2021. I accept the Ombudsman’s submission that the fact that specific details are missing from the note does not necessarily indicate that the events did not happen.

94    The account recorded by the Kwinana Police station is also consistent with the threat as alleged having been made. It notes: “the words [said to Mr Copperthwaite] indicated that he would be killed”. As with the handwritten note, this is consistent with the dead dog statement having been made, but again appears to record the significant events without some of the detail. It is not inconsistent with the detail later provided to Inspector Tonev, nor is it inconsistent with Mr Copperthwaite identifying Mr Gill by photograph on 25 August 2021 and saying to Mr Kranendonk: “that’s the guy that was standing in front of me that I said would end up like a dead dog if I kept going the way I was going”.

95    The 5 November 2021 allegations letter includes allegations that Mr Gill “verbally threatened” Mr Copperthwaite, including that he threatened to kill Mr Copperthwaite, and that Mr Gill called Mr Copperthwaite “abusive and insulting names”. Mr Gill submits that an “overwhelming inference” is that Qube made these allegations because of Mr Copperthwaite’s note and his conversations with Mr Kranendonk after the incident. In cross-examination, Mr Kranendonk agreed that Qube’s practice is to put allegations of serious misconduct precisely, and that fairness requires that the allegations are put as precisely as one can based on the best information and evidence the company has at the time. I understand this line of questioning to have been directed at why the words “dead dog” were not included in the allegations letter. However, I am not satisfied that the absence of the words “dead dog” from the letter means that Mr Gill did not say the words on 24 August 2021.

96    First, Mr Kranendonk’s evidence is somewhat weakened by the fact that he stated a number of times during cross-examination that he was not involved in the investigation against Mr Gill, and that he did not know what the outcome was or how the decision was made. When asked: “Can we take it that whatever allegations were put to him [Mr Gill] are likely to have been precise?”, Mr Kranendonk said: “You would have to ask the person that was investigating that question”, being Dan Coulton. Taken at its highest, Mr Kranendonk’s evidence on this issue only goes to his understanding of what Qube’s regular processes are for serious misconduct allegations and investigations.

97    Second, I am not satisfied that the relevant allegations in the letter are imprecisely put. While the letter does not specify the exact “abusive and insulting” names Mr Gill allegedly called Mr Copperthwaite and Mr Coelho, it clearly alleges that Mr Gill threatened to kill Mr Copperthwaite and Mr Coelho, that he threatened Mr Copperthwaite’s family, and that he threatened Mr Coelho by making a hand gesture in the shape of a gun towards him. I do not consider that the level of detail in the allegations casts sufficient doubt on whether Mr Gill made the dead dog statement on 24 August 2021.

98    Third, and most critically, the allegation in the letter that Mr Gill threatened to kill Mr Copperthwaite is consistent with, and is a threat of the same nature as, Mr Gill making the dead dog statement.

99    I therefore find that there are no fundamental inconsistencies in the words used in Mr Copperthwaite’s 24 August 2021 handwritten note, the statement to the police, and the 5 November 2021 allegations letter which would preclude me from accepting that Mr Gill said the dead dog statement to Mr Copperthwaite as pleaded.

Did Mr Copperthwaite know Mr Gill?

100    On 29 June 2024, the Ombudsman filed a further amended outline of evidence which included for the first time that:

On a couple of occasions, Mr Copperthwaite had previously worked with the person who had made the threat that "you'll end up a dead dog if you keep going like this". Mr Copperthwaite did not know his name, but only his nickname, which was "Gilly".

101    Mr Copperthwaite conceded in cross-examination that he had spoken to lawyers about the case five times but the first time that he said to an inspector or a lawyer that he knew Mr Gill was on the same day the further amended outline of evidence was filed, being 29 June 2024. Mr Copperthwaite stated in examination in chief that he “didn’t know his [Mr Gill’s] full name, as a lot of people there go by nicknames. But I knew the nickname that he was going by [Gilly]”.

102    The Union submits that Mr Copperthwaite did not know Mr Gill. The Union rely on the following earlier statements of Mr Copperthwaite:

(1)    the police incident report which states that: “[f]rom Michael Kronendonk (sic) his manager they are to deal with this internally as bullying at work when they identify who it is that has made the threatening remarks” (emphasis added). Mr Gill submits that at the police station, Mr Copperthwaite and Mr Kranendonk failed to identify Mr Gill and positively asserted the perpetrator was unknown;

(2)    Mr Copperthwaite’s statement to Inspector Tonev which referred to “the man I now know to be Jason Gill”;

(3)    Mr Copperthwaite’s first and second outlines of evidence, which referred to “a Qube employee who Mr Copperthwaite later discovered was Jason Gill” and indicated that he pointed to a person on CCTV who “was identified by Michael Kranendonk to be Jason Gill”; and

(4)    Mr Copperthwaite’s evidence that Mr Kranendonk asked, while showing him the photograph of Mr Gill: “Is this the guy that was in your face threatening you?”, which suggests that he did not mention Mr Gill’s name or nickname during his report to Mr Kranendonk.

103    Mr Copperthwaite conceded in cross-examination that there was no reason he would not have told Inspector Tonev that he knew the person as “Gilly”. Mr Copperthwaite also agreed that it “beggars belief” that he did not tell Inspector Tonev.

104    There was evidence before me regarding whether Mr Copperthwaite and Mr Gill worked together. This fact is relevant to the likelihood that Mr Copperthwaite knew Mr Gill. Mr Copperthwaite said in examination in chief that he had worked with Mr Gill “a couple of times” over “three or four months” in 2021. Mr Kranendonk said in examination in chief that it was “highly probable” that Mr Copperthwaite and Mr Gill would have worked shifts together in 2021 prior to the industrial action starting. However, the parties subsequently agreed as a fact (for the purposes of s 191 of the Evidence Act 1995 (Cth)) that no Qube allocation sheets for the period 1 January 2021 to 31 July 2021 inclusive identify that Mr Gill and Mr Copperthwaite worked on the same gang, but that there is one allocation sheet for 1 July 2021 which records that Mr Gill and Mr Copperthwaite worked at the same time on different gangs at the same berth. I accept this fact.

105    I have also had regard to the allocation sheet for 1 July 2021 which records that there were 11 employees in Mr Copperthwaite’s gang on that day, and 17 employees in Mr Gill’s gang. I accept Mr Kranendonk’s evidence given in re-examination that the two gangs working on that day were on the same port, and shared the same smoke room and shared “the same place where everybody meets in the morning”.

106    As to the likelihood that Mr Copperthwaite knew Mr Gill from other interactions at Qube, I have had regard to Mr Kranendonk’s examination in chief where Mr Kranendonk said he would see Mr Gill at the picket 70% of the time. I have had regard to Mr Copperthwaite’s evidence given in examination in chief that the picket numbers would be no less than 10 people at any given time, and could be up to 40 or 50 people. I accept that Mr Copperthwaite would have passed through the picket line for work each morning.

107    I have also had regard to the amount of time Mr Gill and Mr Copperthwaite’s employment at Qube would have overlapped. The Union has stated that Mr Gill was employed by Qube from on or about 7 September 2007 to 7 December 2021. A record of Mr Gill’s work hours between 1 January 2021 and 31 July 2021 has also been tendered. In cross-examination, Mr Copperthwaite agreed that he started working for Qube in March 2021 as a stevedore and was promoted to the position of shift manager in June 2021. This means that there was a period of approximately five months, depending on the exact date Mr Copperthwaite started working at Qube, in which Mr Copperthwaite’s and Mr Gill’s employment overlapped prior to the events on 24 August 2021.

108    The parties accept that at all relevant times Qube employed around 139 employees who were eligible to become members of the Union (and many of whom were in fact members of the Union). There was no evidence given about whether there were additional people working at Qube during the industrial action beyond these 139 employees.

109    Having regard to all the evidence, I consider on the balance of probabilities that Mr Copperthwaite did know Mr Gill generally, and well enough to know of his appearance and nickname, even if he did not know his full name or otherwise much about him. I accept that he would have at least seen Mr Gill a number of times during their overlapping employment at Qube and during that time learned his nickname. In my view, given that he only knew Mr Gill by nickname, it is plausible that he would not have identified “Gilly” in his handwritten note or to the police, and that the reference in the police report to “when they identify who it is that has made the threatening remarks” could mean to identify the person who made the statement with more precision.

110    I therefore consider that the passage of the further amended outline of evidence excerpted at [100] is correct, save that Mr Copperthwaite had only worked on the same berth as Mr Gill once and they had not worked together “[o]n a couple of occasions”.

Was there an admission by Mr Gill that he spoke to Mr Copperthwaite?

111    The Ombudsman submits that Mr Gill’s counsel putting to Mr Copperthwaite in cross-examination that a different and more benign conversation had occurred between Mr Gill and Mr Copperthwaite on 24 August 2021 amounted to an admission that Mr Gill spoke with Mr Copperthwaite on that day.

112    The Ombudsman relied on Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274 at [27], where Nicholas J determined that admissions made by counsel for the plaintiff, which, doubtlessly took into account forensic considerations, bound the plaintiff and the defendants were entitled to proceed on the basis that those matters were not in issue. The relevant circumstances in Palavi did not involve questions put in cross-examination. However, and in any event, counsel for Mr Gill conceded that it was his client’s case that: first, Mr Gill was at the picket on 24 August 2021; second, things were said between Mr Gill and Mr Copperthwaite, but that, third, his client did not make the threat alleged. Counsel for Mr Gill accepted that the questions he put to Mr Copperthwaite were on instructions from Mr Gill.

113    In weighing all of the evidence, I take into account the admission by Mr Gill (through his counsel) that he was present at the Gate on the morning of 24 August 2021 and that he spoke with Mr Copperthwaite.

Was Mr Copperthwaite’s identification of Mr Gill reliable?

114    Mr Copperthwaite gave evidence that he identified Mr Gill in the photograph shown to him by Mr Kranendonk on 25 August 2021, and that he was “100 per cent” sure it was the same person who had made the threat to him on 24 August 2021. The respondents submit that Mr Copperthwaite’s identification of Mr Gill was unreliable, such that if the Court concluded that someone uttered the dead dog statement, it would be unsafe for the Court to conclude that the person who made the statement was Mr Gill.

115    The Union submits that identification evidence, particularly identification from a photograph, has special problems, and that it is notoriously uncertain, unreliable and untrustworthy: citing Strauss v Police [2013] SASC 3; 115 SASR 90 at [17] (Peek J); Alexander v The Queen (1981) 145 CLR 395 at 426 (Mason J); Festa v The Queen [2001] HCA 72; 208 CLR 593 at 610 (McHugh J); and R v Smith (No 3) [2014] NSWSC 771 at [27]-[28] (Garling J). Mr Gill submits that “[t]he identification evidence lead in this case is the archetype of unreliable identification evidence”. The Union relies on the following passage of Deane, Toohey and McHugh JJ in Pitkin v The Queen (1995) 69 ALJR 612 at 615B:

Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders. In that context … there may be subconscious pressure upon the witness to pick out any photograph of a “suspect” who “looks like” the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender.

116    The Union says that Mr Copperthwaite was affected by this bias when he identified Mr Gill from Mr Kranendonk’s photograph. I have summarised the relevant circumstances of the identification at [767] above. The Union says that when Mr Kranendonk presented Mr Copperthwaite with the picture of Mr Gill, there was a substantial risk of “displacement”. In other words, there was a significant risk of the image of Mr Gill shown to him by Mr Kranendonk displacing Mr Copperthwaite’s recall of the person who made the threat: citing Strauss at [30]; Alexander at 409 (Stephen J). The Union submits that there was a substantial risk of displacement given that Mr Copperthwaite was aware that Qube were investigating the matter and seeking to identify the culprit who had threatened him, and he was “doubtless keen to assist them”. Mr Gill submits further that “the process [of identification] described in the evidence will have prima facie compromised the identification.”

117    In Smith v The Queen [2001] HCA 50; 206 CLR 650 at [13]-[14], the majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ) stated:

This is not to say that it will never be relevant for a witness to give evidence that the witness recognises who is depicted in a photograph. The obvious case in which that will be relevant is where the witness deposes to having identified someone from a photograph, or collection of photographs, shown to the witness and the identity of the person depicted is proved in some other way.

Difficulties may arise, however, when the photograph which is used for identification and is tendered in evidence is, as was the case here, a photograph taken of an incident which is the subject matter of the proceeding. Even in such a case, a witness's evidence of recognition of the person depicted may be relevant.

Sometimes the facts in issue will extend beyond the narrow question whether the accused is the person depicted in the photograph. In R v Goodall, the questions included whether the accused owned a jacket of the kind that the offender depicted in security photographs of a robbery was shown to be wearing. A jacket, which was tendered in evidence, had been found with other incriminating items. Two police officers gave evidence that they had seen the accused wearing this kind of jacket before the robbery. They gave further evidence that the man who was depicted in the security photograph was the accused, and that he was wearing a jacket of the kind they had seen him wearing before the robbery. The evidence was, therefore, relevant to link the accused to the jacket. It went beyond the bare assertion of recognition of the person on trial as the person shown in the photograph.

118    I accept that identification evidence can be undermined by the issues set out in the above authorities. I accept that this is particularly the case where the person is shown just a single photograph: see Wood v The Queen [2012] NSWCCA 21; 84 NSWLR 581 at [409] (McClellan CJ at CL); R v Blick [2000] NSWCCA 61; 111 A Crim R 326 at [25]-[29] (Sheller JA). I also accept that it was dark when Mr Copperthwaite saw Mr Gill and that Mr Copperthwaite agreed in cross-examination that it was hard to see who was who because of the spotlights, although I consider this alongside Mr Copperthwaite’s other evidence that he had a clear view of Mr Gill because there was “a light right behind my head coming from the communications box at the time”. I accept that Mr Copperthwaite may have been in distress at the time the threats were made.

119    However, I am not satisfied that issues that might accompany identification procedures here undermined the identification of Mr Gill by Mr Copperthwaite. This is because, first, I have found that Mr Copperthwaite knew Mr Gill generally. The distinction between recognition evidence, where the witness recognises someone previously known to him or her, and identification evidence, where the witness subsequently identifies a person whom the witness first saw at the crime scene, has long been recognised: see Williams v The Queen [2019] NSWCCA 53 at [98]-[99] (Gleeson JA). In Davies v The King (1937) 57 CLR 170, the High Court (at 181) recognised that the amount of care to be taken with evidence “must vary according to the familiarity of the witness with that person”.

120    Second, while I have considered the displacement risk in Mr Kranendonk introducing the photograph to Mr Copperthwaite and asking if he was the person who said the threat, I have balanced this risk against the particular circumstances that (a) Mr Gill admitted that he was there and that he said words to Mr Copperthwaite; (b) there is CCTV footage of the incident showing Mr Gill was there and that he was standing close to Mr Copperthwaite for several minutes; (c) the photograph Mr Kranendonk showed Mr Gill was taken from that CCTV footage; and (d) the evidence given by Mr Kranendonk in cross-examination suggested that he identified Mr Gill in the footage because of Mr Copperthwaite’s initial description of Mr Gill’s jacket. These circumstances reduce the risk that Mr Copperthwaite’s recall of the person who made the threat was “displaced” by being shown the photograph of Mr Gill.

121    Third, I have had regard to the fact that a period of only one day elapsed between the incident and Mr Copperthwaite’s identification of Mr Gill: see, e.g. Marshall v The King [2023] ACTCA 11 at [54] (Mossop, Loukas-Karlsson and Abraham JJ).

122    I therefore accept that Mr Copperthwaite’s identification of Mr Gill in the photograph as the person who made the threat to him on 24 August 2021 was reliable.

The lack of any contradicting evidence and any available inferences

123    The Ombudsman submits that where no alternative version of events was pleaded by either respondent, and no party filed any outline of evidence that foreshadowed evidence of an alternative version of events, it was incumbent on the respondents’ counsel to put to the Ombudsman’s witnesses any contrary propositions: Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 686 at [620]-[626] (Charlesworth J). The Ombudsman says that, in the face of no alternative case being advanced, her evidence should be readily accepted unless it is simply found to be not inherently credible, relying upon Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370-371 (Gibbs J, with whom Stephen and Murphy JJ agreed).

124    The Ombudsman says further that:

(1)    the Court should be conscious that no contradictory evidence has been led. She says that the Union could easily have led evidence from its officials, members and other picketers. She submits that the Court should infer that nothing any of them could have said would have assisted the Union’s case: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [63] (Heydon, Crennan and Bell JJ), citing the rule in Jones v Dunkel (1959) 101 CLR 298; and

(2)    not only was no contradictory evidence led, no alternative case as to the events of 24 August 2021 was even advanced (save for the very limited aspect as to what Mr Gill said to Mr Copperthwaite). The Ombudsman submits that my confidence in accepting her case becomes stronger in these circumstances where no contrary evidence has been led and no contrary case theory has been put.

125    The respondents’ submissions draw attention to how I should deal with the evidence. The Union submits that insofar as the Ombudsman’s case is circumstantial, it will not be sufficient for the circumstances to give rise to conflicting inferences of equal probability, and that the law does not authorise “a court to choose between guesses … on the ground that one guess seems more likely than another” and “the facts proved must form a reasonable basis for a definitive conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”: Jones v Dunkel at 305 (Dixon CJ). In oral submissions, Mr Gill submitted that there is a large difference between the Court more readily accepting that events occurred due to Mr Gill not giving evidence and the Court making an inference or finding flowing from Mr Gill’s failure to give evidence which is independent of the Ombudsman’s evidence. Mr Gill said that his case theory did not need to go as far as that no one yelled at or abused or said any particular words to Mr Coelho and Mr Copperthwaite, or that Mr Gill had to demonstrate that nothing happened and Mr Coelho and Mr Copperthwaite made everything up: he just had to establish that Mr Gill did not make the dead dog statement as pleaded.

126    The rule in Jones v Dunkel may be applied in pecuniary penalty proceedings such as these: see Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; 258 FCR 257 at [147] (North, Dowsett and Rares JJ); Master Wealth Control Pty Ltd v Australian Competition and Consumer Commission [2024] FCAFC 171; 306 FCR 462 at [38] (SC Derrington, Halley and Shariff JJ). The rule permits an inference that the evidence which could have been given would not have assisted a party, but does not permit an inference that the evidence would have been adverse to the party: Kuhl at [64]. As Mr Gill did not give evidence, it follows that an available inference is that the evidence that he could have given would not have assisted his case concerning whether or not he made the dead dog statement to Mr Copperthwaite.

127    Having regard to my conclusions above, I do not consider the evidence as to Mr Gill making the dead dog statement to Mr Copperthwaite to be inherently incredible: Precision Plastics at 371. I am mindful that Jones v Dunkel does not permit me to fill any holes in the Ombudsman’s case. However, I do make the inference that the evidence that Mr Gill could have given would not have assisted his case. I consider that inference together with all of the other evidence before me in determining whether I can be satisfied that Mr Gill made the dead dog statement.

Other relevant events after the events at the Gate on 24 August 2021

Mr Copperthwaite security and rental car

128    The unchallenged evidence of Mr Copperthwaite was that after the events at the Jetty on 24 August 2021, Qube stationed a security guard outside his home. The security operated for 24 hours a day, seven days week. It was in place for the remainder of the industrial action.

129    Mr Copperthwaite gave evidence that a further safety measure was the provision by Qube of a hire car for his wife. The car was provided for a period of two weeks after the events on 24 August 2021. The car was arranged by an email from Mr Copperthwaite to a Qube Administration Officer, sent at 1:09 pm on 24 August 2021.

130    Those measures suggest that both Qube and Mr Copperthwaite took the events of 24 August 2021 seriously, and are consistent with a threat having been made to Mr Copperthwaite.

The Mr Gill investigation

131    On 25 August 2021, Qube stood down Mr Gill “pending an investigation into a misconduct incident that occurred at the Kwinana Bulk Jetty on 24 August 2021”.

132    As noted at [95] above, Qube wrote to Mr Gill on 5 November 2021 setting out allegations against him and inviting him to respond in writing. These allegations were:

1. On or about 24 August 2021 at approximately 6.00am, you were outside the Kwinana Bulk Jetty site, as part of a picket line against Qube.

2. During this time, you verbally threatened Mr Christopher Copperwaite (sic) and Mr Luis Coelho, who were waiting by the gates at site, and said words to the effect of:

a. threatening to kill Mr Copperwaite (sic) and Mr Coelho;

b. calling Mr Copperwaite (sic) and Mr Coelho abusive and insulting names; and

c. threatening Mr Copperthwaite's family.

3. You also threatened Mr Coelho by making a hand gesture in the shape of a gun towards him.

133    The letter also invited Mr Gill and his representative to watch the CCTV footage of the incident in the Qube offices on 12 November 2021 and then participate in a meeting to respond to the allegations on 12 December 2021. The letter stated that if one or more of the allegations were substantiated then Qube may take disciplinary action against Mr Gill, up to and including summary dismissal.

134    Mr Gill forwarded the email attaching this letter to Mr Brett at the Union. Mr Brett emailed Mr Gill that he would send the letter to Mr Tracey and a lawyer. Mr Gill replied to Mr Brett saying “[s]hould be interesting footage. I’m gathering there is no sound with it as then the allegations would be unfounded”.

135    On 16 November 2021, the allegations stated in [132] were again put in writing to Mr Gill after he had reviewed the CCTV footage on 12 November 2021. Qube invited Mr Gill to respond by 22 November 2021. Mr Gill provided a written response on that day denying the allegations. Qube sent a further letter on 30 November 2021. That letter sought to arrange for Mr Gill to read the witness statements of Mr Coelho and Mr Copperthwaite at Qube’s offices on 2 December 2021. The letter provided an opportunity for a further written response by 6 December 2021. On 6 December 2021, Mr Gill sent an email to Qube denying the allegations.

136    On 7 December 2021, Qube sent a letter to Mr Gill saying that on the balance of probabilities, Qube was satisfied that he had engaged in the alleged misconduct and that he was terminated for serious misconduct.

137    On 13 December 2021, Mr Gill filed an unfair dismissal application against Qube in the Fair Work Commission. That application was settled. A settlement and release was executed on 4 March 2022. The application was settled for $88,000.

138    Again, those steps suggest at least that Qube took the events of 24 August 2021 seriously.

The two Mr Coelho incidents

139    There were two further incidents involving Mr Coelho that were said to be relevant. They both occurred after the period of the industrial dispute (that is, after 15 October 2021). It was said they were relevant because they broadly affected the reliability of the evidence of Mr Coelho. The first was an incident where Mr Coelho said that he was required to enter a pile of granulated sulphur in a vessel berthed at the Jetty. Mr Coelho said he sank in the granulated sulphur up to his chest. He said that a cage was required to retrieve him from the sulphur. The second was a confrontation on a minivan that Mr Coelho said occurred on 20 December 2021.

The sulphur incident

140    Mr Coelho gave evidence that after the protected industrial action ended, and he resumed working with the workers who did not cross the picket line, he was given “the worst jobs ever … the physical jobs, the real physical jobs, dangerous jobs”. This included manually moving sulphur in vessels. Sulphur is held in a vessel in a granulated form like sand. The evidence was that a device named a siwertell extracts most of the sulphur from the vessel but is not able to access edges and ridges in the vessel. After the sulphur is removed, workers go into the vessel and use picks and shovels and excavators to move the sulphur into areas accessible to the siwertell. Mr Coelho gave oral evidence that he was “made to go in there on my own each time, non-stop, day after day”.

141    On the relevant day, Mr Coelho’s evidence was that there was a “quarter” of the sulphur left in the vessel which was “about 20 foot deep” and he was instructed, by an unknown supervisor, to jump into the sulphur in the vessel to shovel and pick on his own. Mr Coelho said that he jumped into the sulphur and “went straight down to hell”. I understood him to mean that he sank into the sulphur. However, despite being submerged, Mr Coelho said he could “touch the floor with [his] tippy toes” and only “sunk a little bit”. He said that the man who instructed him to jump was then scared of Mr Coelho “going down”. He said he was instructed not to move and a cage was connected to the siwertell and was used to get him out. In cross-examination, he said that he “sank till [he] hit the bottom” and that the sulphur went up to his chest and that his arms were free, and that he grabbed the cage with both hands.

142    I accept that Mr Coelho’s evidence about the “sulphur” is inconsistent. Mr Coelho initially said that the sulphur was “20 foot deep” but he also said that he could touch the floor with his “tippy toes” after he sunk in the sulphur. He explained this by saying that there was “20 foot on the side” and that he had jumped in “half of that – I jumped in – it would have been a third of that same, a third of that”.

143    The Union also tendered two videos of a man jumping into sulphur in a similar way to that described by Mr Coelho. The man in the video did not sink into the sulphur. Mr Coelho’s initial response to being shown the video was that that was “exactly what happened to me”. Mr Coelho later resiled from that and said the video was “staged” for the hearing, and that he jumped into the sulphur “forwards” rather than “backwards” as was shown in the video. Mr Kranendonk, who did not work on sulphur ships himself, but was responsible for them as Western Australia Manager, agreed with the proposition that it was “impossible” to sink to the bottom of sulphur.

144    The Ombudsman submits that the sulphur is an “ancillary issue” and is “far from being a central issue in the case”. The Ombudsman submits that it is unknown whether it was actually sulphur shown in the video, and if it was, what the “conditions” and “properties” of the sulphur in the video were. The Ombudsman submits the videos are of no or very limited probative value. Further, she submits that Mr Kranendonk had never worked on a sulphur ship so his evidence about it should not be accepted. The Ombudsman submits that Mr Coelho’s evidence was not that he had suggested that a person would sink like quicksand in sulphur every single time, but just that he said it can happen.

145    The respondents submit that Mr Coelho’s description of the sulphur incident was a “bald-faced lie”. The respondents submit that Mr Coelho’s inconsistent accounts of the incident undermined his reliability generally, and that the sulphur event itself is “completely destructive” of Mr Coelho’s credit and of itself justifies not accepting any of Mr Coelho’s evidence.

146    Overall, I am not satisfied that the “sulphur” incident was an invention from Mr Coelho. I accept the Ombudsman’s submission that I do not know the circumstances in which Mr Coelho said he sunk into the sulphur and I do not know the circumstances in the videos tendered by the Union. Given the inconsistencies in Mr Coelho’s account, I do not accept the incident happened as described by Mr Coelho but I do not accept that it was a “bald-faced lie”. It is not necessary for me to determine with precision how the incident occurred. The incident was relied upon to undermine the other evidence of Mr Coelho. As I say above, there were occasions where it appeared Mr Coelho had exaggerated some aspect of his evidence. However, that does not cause me to doubt the substance of his evidence where it accorded with other evidence. I do not approach Mr Coelho on the basis of “false in one thing, false in everything”. The evidence of the sulphur incident does not change that assessment.

The minivan incident

147    Mr Coelho gave evidence in chief that on 20 December 2021, a man confronted him on the minivan transporting workers at the Harbour. Mr Coelho said the man approached the driver and asked: “Who have you got for us today?”. He said the driver answered: “We got this fucking rat again”. Mr Coelho said the man then boarded the bus and “threw himself on his hands and knees … right up to me”. He said the man was “insulting me, asking me to, you know – like, he basically wanted me to throw a punch” and was saying: “Give me a reason to smack you out”. Mr Coelho said the man then hit Mr Coelho’s bag and that Mr Coelho’s helmet bounced off the seat and hit Mr Coelho. Mr Coelho described this as an accident. He said the confrontation continued when they both got off the minivan and the man was “just pushing with his head”, and that he was trying to get Mr Coelho to strike him and that he said: “I’m coming for you mate”. He said a crowd gathered and the two were separated. He said the man then said Mr Coelho’s home address. Mr Coelho said this was the same man that made the handgun gesture to him on 24 August 2021. Mr Coelho reported the incident to Mr Kranendonk.

148    The Union submits that this account is “fundamentally different” to what Mr Kranendonk recorded in a contemporaneous file note of a conversation with Mr Coelho on the day of the incident. In an email on 20 December 2021, Mr Kranendonk stated that he had received a phone call from Mr Coelho, where Mr Coelho advised that he had been harassed by another worker. Mr Coelho is said to have told Mr Kranendonk that he “wasn’t fazed about … [the worker’s] demeaner (sic) but was worried when he stated [Mr Coelho’s] home address, [Mr Coelho] had gone straight to the police to place a restraining order on the worker as he was in fear of his wife and daughter’s safety”. Further Mr Coelho said that the worker “had threatened him and grabbed [Mr Coelho’s] helmet [off] him and then threw it at him”.

149    Consistent with my general observations about Mr Coelho, it appears there was some exaggeration in Mr Coelho’s account to Mr Kranendonk. That does not cause me to doubt the existence of the incident. Again, I accept Mr Coelho’s evidence where it is supported by other evidence. I accept that there was an incident on the minivan on 20 December 2021. Again, it is not necessary for me to determine with precision how the incident occurred. I do not accept that Mr Coelho’s inconsistencies about that incident undermine all of his evidence on this event and more broadly.

Standard of proof and conclusions on Mr Gill’s conduct

150    In considering whether Mr Gill has contravened the Act, I am required to find that the case is proved on the balance of probabilities. Mr Gill submits that I should not find the allegations at [70(a)-(c)] of the Amended Statement of Claim to be proven against him. His submissions draw attention to s 140(2) of the Evidence Act and the principle in Briginshaw v Briginshaw (1938) 60 CLR 336.

151    It has been said that the standard of proof referred to in s 140(2) is a re-statement of Dixon J’s observations in Briginshaw: see Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358 at [28] (Wheelahan J). In Briginshaw Dixon J observed (at 362):

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.

152    Mr Gill’s written submissions and the Ombudsman’s oral submissions both draw attention to Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170. The majority in that case opined that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what is sought to prove. When seeking to prove matters involving fraud or criminal conduct, statements have been made to the effect that clear or cogent evidence is required. However, those statements should not be understood as being directed to the standard of proof, but instead should be understood as reflecting a conventional perception that members of our society do not engage in fraudulent or criminal conduct and the judiciary should not lightly make a finding that a party to civil litigation has been guilty of such conduct: at 170-171.

153    The Ombudsman in oral submissions also drew attention to the passages at 171-172, which relevantly provide:

When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.

(Citations omitted.)

154    Mr Gill submits that Briginshaw means, and Neat Holdings does not contradict, that the starting point is that people do not engage in contraventions of the Act, and that for a court to be reasonably satisfied that the allegations have occurred, something more is needed than “inexact proofs or indefinite testimony”. I accept, as Mr Gill says, that the allegations against him, being allegations of the Act, “are not findings to be lightly made”: see Australian Building and Construction Commissioner v Hall [2017] FCA 274; 269 IR 28 at [20] (Flick J). I also accept that contraventions of the Act must be “clearly established”: see Newton v Australian Postal Corporation (No 2) [2019] FCA 2192; 292 IR 396 at [54] (Bromberg J), citing Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64; 242 FCR 46 at [45] (Buchanan, Reeves and Bromberg JJ).

155    I also accept, as the respondents submit at [125] above, that I need to be satisfied that the facts form a reasonable basis for a definitive conclusion and that I am not merely to “choose between guesses”.

156    It is important to appreciate that neither the principles in these cases, nor s 140(2)(c) of the Evidence Act, alter the standard of proof. Rather, s 140(2)(c) “speaks to the process of reasoning by which a finder of fact may be satisfied that the evidence reaches or does not reach the standard”, having regard to the fact that “some events are inherently more or less likely than others”: Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363 at [20] (Jagot J). The standard of proof remains as the balance of probabilities.

Conclusions on whether Mr Gill made the statement at ASOC 70(b)

157    Taking account of those approaches, and recognising the seriousness of the allegations against Mr Gill, I am satisfied on the balance of probabilities that Mr Gill said to Mr Copperthwaite: “You’ll end up dead dog if you keep going like this” as pleaded at [70(b) and (c)] of the Amended Statement of Claim. Consistent with the matters set out above, that conclusion is based on:

(1)    My findings that Mr Copperthwaite was credible and largely consistent with his written record and conduct on and after that day regarding the important aspects of the statements made to him on 24 August 2021. I also found that he was certain in respect of his exchange with Mr Gill (at [18]);

(2)    My acceptance of the substance of Mr Coelho’s evidence of the events on 24 August 2021 where it accords with other evidence (at [21]);

(3)    The unanswered evidence of Mr Kranendonk as to the events immediately following the conversation between Mr Gill and Mr Copperthwaite, and my finding that Mr Kranendonk was a witness who gave frank and forthright evidence (at [23]);

(4)    My review of the CCTV footage and my finding that the footage is consistent with the evidence of Mr Copperthwaite about the physical location of him and Mr Gill, including that Mr Gill was within 30-60 centimetres of Mr Copperthwaite for a few minutes (at [89]);

(5)    The written accounts of the events, namely Mr Copperthwaite’s file note on 24 August 2021, the police incident report, Inspector Tonev’s file note of his conversation with Mr Copperthwaite on 24 February 2022, the amended outline of evidence to be given by Mr Copperthwaite dated 24 May 2024 and the further amended outline of evidence to be given by Mr Copperthwaite dated 29 June 2024;

(6)    My finding that there were no fundamental inconsistencies in the contemporaneous and near contemporaneous accounts of the incident which would preclude me from accepting that the words were said (at [92]);

(7)    My finding that Mr Copperthwaite knew Mr Gill generally, and well enough to know of his appearance and nickname even if he did not know his full name (at [109]), and my finding that Mr Copperthwaite’s identification of Mr Gill in the CCTV image was reliable (at [122]). These findings point towards the likelihood that if the dead dog statement was made, it was made by Mr Gill;

(8)    The concession that Mr Gill was present at the Gate and spoke with Mr Copperthwaite (at [113]);

(9)    The inference I have drawn per Jones v Dunkel that the evidence which Mr Gill could have given, but failed to give, would not have assisted his case (at 127]); and

(10)    The evidence of events that immediately followed Mr Gill’s conduct on 24 August 2021, particularly the reporting by Mr Copperthwaite to Mr Kranendonk, reporting by Mr Copperthwaite to the police, and the provision of security and a hire car to Mr Copperthwaite.

Conclusions on whether Mr Gill made the statement at [70(a)]

158    The words pleaded in [70(a)] of the Amended Statement of Claim are “scab”, “dog” and “I know where you live”. The pleading alleges those words were said by “the picketers (including Gill)”.

159    There was no oral evidence lead by the Ombudsman that specifically attributed these words to Mr Gill. Mr Copperthwaite’s evidence was that on 24 August 2021 there were “roughly 30 people” at the Gate, and as he was “approaching the gate to walk back in” the picketers “all started barking, yelling out, “you’re a dog”. His evidence does not attribute these statements to Mr Gill. Mr Coelho’s evidence was that: “I was in my car with my window down, and as usual, they were just hurling abuse. ‘I’ll kill you, scab, dog. I know where you live. I know how many kids you got.’ Just stuff like that, your Honour”. Mr Coelho’s evidence also does not attribute these words to Mr Gill. Mr Coelho gave evidence that, when Mr Copperthwaite asked him if he had heard what “Gilly” said, Mr Coelho said “I didn’t hear what he said. I don’t know the bloke. I didn’t even see who he was”.

160    There was also no documentary evidence lead by the Ombudsman that specifically attributed the words to Mr Gill. This includes Mr Copperthwaite’s account to Inspector Tonev in which Mr Gill is otherwise identified as making the dead dog statement. The evidence relied upon by the Ombudsman identified the words being said by “they”, “the picketers” and “the crowd”.

161    As set out above, findings of a contravention of civil penalty provisions should not be lightly made, and should not be made based on “inexact proofs, indefinite testimony or indirect inferences”.

162    In circumstances where I have found that at least 22 picketers arrived at the Gate on the morning of 24 August 2021 (which I explain in more detail at [335]-[336] below), and there is no evidence led which attributes the words in [70(a)] of the Amended Statement of Claim to Mr Gill, I cannot be satisfied on the balance of probabilities in accordance with s 140 of the Evidence Act that Mr Gill said the words alleged.

Allegations of contraventions – Gill conduct summary

163    Having found that Mr Gill did not make the statement pleaded at [70(a)] of the Amended Statement of Claim, but that he did make the dead dog statement pleaded at [70(b)], I turn now to considering whether making the dead dog statement means that Mr Gill has contravened ss 343, 346 and 348 of the Act in the following alleged ways:

(1)    Mr Gill coercing Mr Copperthwaite in contravention of s 348;

(2)    Mr Gill coercing Mr Coelho in contravention of s 348;

(3)    Mr Gill coercing Qube in contravention of s 343;

(4)    Mr Gill coercing Qube in contravention of s 348;

(5)    Mr Gill taking adverse action against Mr Copperthwaite in contravention of s 346; and

(6)    Mr Gill taking adverse action against Mr Coelho in contravention of s 346.

Principles and elements of ss 343, 346 and 348

Sections 343 and 348 – Coercion

164    Section 343(1) is directed at coercion in relation to the exercise of workplace rights. It provides:

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)    exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b)    exercise, or propose to exercise, a workplace right in a particular way.

165    The meaning of “workplace rights” is relevantly defined at s 341(1) of the Act:

(1) A person has a workplace right if the person:

 (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

 (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

 (c) is able to make a complaint or inquiry:

 (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

 (ii) if the person is an employee—in relation to his or her employment.

166    The words “process or proceedings under a workplace law or workplace instrument” is defined in s 341(2) to relevantly include:

(b) court proceedings under a workplace law or workplace instrument;

(c) protected industrial action;

(d) a protected action ballot;

(e) making, varying or terminating an enterprise agreement;

(f) appointing, or terminating the appointment of, a bargaining representative;

…

(k) any other process or proceedings under a workplace law or workplace instrument.

167    Section 348 is directed at coercion in relation to engaging in industrial activity. It provides:

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

168    Section 347 provides that a person “engages in industrial activity” if the person, among other things:

(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:

…

(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

…

…

(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;

169    Sections 343 and 348 have in common their use of the words “with intent to coerce” and “organise or take any action”. Those words and expressions require some consideration.

“Intent to coerce”

170    Intention to coerce for the purposes of ss 343 and 348 requires, first, that the impugned person has the intent to negate choice; and second, that the conduct be illegitimate, unconscionable or unlawful: Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440; 243 IR 312 at [300] (Siopis J); Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456, 109 FCR 378 at [41] (Merkel J); Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 at [25] (Tracey, Reeves and Bromwich JJ).

171    The negation of choice requires more than a mere intent to persuade or induce. That is, coercion implies a high degree of compulsion and not a lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply: National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441; 117 FCR 114 at [103] (Weinberg J). As Buchanan J stated in Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243; 218 IR 436 at [36]: “The pressure must be such as to leave no real choice. It must negate, not merely burden, the will.” The requisite intent is established by knowledge of the circumstances which give the act in question its coercive character, rather than knowledge of the probability of the result: Seven Network at [31] (Merkel J).

172    As to the tripartite notions of unlawful, illegitimate and unconscionable conduct, in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268, Allsop CJ, Collier and Rangiah JJ provided some guidance about the meaning of “unconscionable” and “illegitimate” in this context:

(1)    Unconscionability takes its content from the values and expected conduct in an industrial setting. The word is best understood in its practical application to real life settings where there can be an articulation of why, in an industrial context, the pressure sought to be exerted should be seen as departing from right behaviour: at [157].

(2)    Illegitimacy is a separate category of behaviour distinct from unconscionability. Proportionality informs the concept of illegitimacy in an assessment of whether there is a reasonable or justifiable connection between the nature of the demand made and the nature of pressure exerted: at [158]-[159].

173    The use of unlawful, illegitimate and unconscionable conduct is to be assessed objectively: Hall at [26]. In contrast to the “negating choice” element, it is unnecessary to establish that a person intended to act unlawfully, illegitimately or unconscionably. Additionally, a misplaced belief that the relevant action is protected industrial action affords no defence: Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; 245 FCR 39 at [176] and [189] (Buchanan J, with whom Siopis J agreed; overturned on appeal to the High Court but not with respect to this conclusion). It is not necessary to wait until the relevant action “takes its toll and has overborne the will of the target”. It is sufficient that there is an intention to negate another person's choice provided the conduct is unlawful, illegitimate or unconscionable: at [180].

174    The High Court has observed that “it is not immediately apparent” why an “action must be unlawful, illegitimate or unconscionable to amount to coercion within the meaning of s 343 or 348”: Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54, 263 CLR 551 at [61] (Kiefel CJ, Keane, Nettle and Edelman JJ). However, in that case, their Honours did not finally determine the correctness of that view. On the basis of that passage, Logan J (with whom Collier J agreed) stated in Heiko Constructions v Tyson [2020] FCAFC 208; 282 FCR 297 at [96] that “particular care now needs to be taken in relation to the notion that action must also be unlawful, illegitimate or unconscionable to amount to coercion as prohibited either by s 343 or s 348”. I consider that, as the two part test in Hall has not been overruled, I remain bound by it. I apply that approach in my assessment of the alleged contraventions below.

The meaning of “action” in “organise or take any action”

175    The word “action” in ss 343 and 348 is to be interpreted broadly, and in my view is capable of including the dead dog statement made by Mr Gill. This broad view is supported by:

(1)    The dictionary definitions of the words “take action”. The ordinary meaning of “take action” is to take steps in regard to any matter, to act: the Oxford English Dictionary (Oxford University Press, 2025), or to bring about a desired action in relation to something: Macquarie Dictionary (Pan Macmillan Australia, 2025).

(2)    Authorities on the meaning of the word “action” in the context of s 361 of the Act. This Court has previously held that the word “action” within the meaning of s 361 is of broad application and plainly extends to the making of a threat: Newton at [46] (Bromberg J), cited in Australian Building and Construction Commissioner v Molina [2020] FCAFC 97; 277 FCR 223 at [71] (Bromberg, Colvin and Abraham JJ). In Newton, Bromberg J also said that the intended broad application of the word “action” in this section is confirmed by the definition of “action” in s 12 of the Act as including “an omission”. I will return to s 361 in more detail below when I discuss the application of the “reverse onus” of proof.

(3)    The broad application of “action” in the context of ss 343 and 348 is further emphasised in the Explanatory Memorandum to the Act, which states at [1391]-[1392] (in relation to s 343):

This clause is intended to prohibit any action (i.e., not limited to adverse action) taken with intent to coerce another person, or a third person, in relation to the exercise (or not) of their workplace rights. The prohibition applies irrespective of whether the action taken to coerce the other person is effective or not.

Subclause 343(1) is intended to cover section 400 of the WR Act which broadly dealt with coercion in agreement-making. However, the protection in subclause 343(1) is broader because it protects all workplace rights.

176    I apply this broad approach to the meaning of “action” in my assessment of the alleged contraventions below.

The meaning of “organise” in “organise or take any action”

177    The ordinary meaning of “organise” is to make arrangements or preparations for an event or activity: the Oxford English Dictionary (Oxford University Press, 2025), or to arrange for someone to do something: Macquarie Dictionary (Pan Macmillan Australia, 2025).

178    In Australian Building and Construction Commissioner v Huddy [2017] FCA 739 at [67] (White J), the words “organisation” of “action” in ss 343 and 348 were considered to involve “the intentional arranging, bringing about, putting in place, procuring or coordinating the action in question”. White J also opined that “organising has the connotation of positive conduct which is intended to, and does, induce or procure others to engage in conduct and/or which marshals or coordinates the activities of those who are willing to do so”. That approach was adopted in Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363 at [80] (Jagot J) and in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; 260 FCR 564 at [95] (Bromberg J).

179    The difference between “organise” and “take action” was discussed in Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340 at [117] (Flick J):

The use of the term “take” in juxtaposition to the term “organise” expresses, with respect, a relatively simple alternative. Action may be “taken” in furtherance of action which others may have “organised”.

…

The legislative intent, with respect, is clear enough. The object and purpose of ss 348 and 355 is to extend the prohibition beyond those who may “organise” action and to bring within the reach of those provisions persons who may not have “organised” action but nevertheless engage in conduct which is the “taking” of action with a specified intent to coerce.

180    The contraventions of ss 343 and 348 alleged against Mr Gill in respect of the dead dog statement are confined to actions “taken”. I discuss the allegations that the Union had “organised or taken” certain actions in contravention of the Act further below when I discuss the Union’s liability for Mr Gill’s conduct and the conduct of the unknown picketers.

Section 346 – industrial activities adverse action

181    Section 346 relevantly provides that

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).

182    As explained above, “engaged in industrial activity” is defined in s 347.

Adverse action

183    Adverse action is defined in s 342 of the Act. Relevantly, item 7(b) of s 342(1) and s 342(2), read together, provide that adverse action is taken by an industrial association (or the officer of member of the industrial association) against a person if the industrial association takes action, or organises or threatens to take action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment.

184    “Prejudicing”, in this context, should be understood as “adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”: see, e.g., Maritime Union of Australia v Fair Work Ombudsman [2016] FCAFC 102; 247 FCR 154 at [58] (Buchanan J), quoting Patrick Stevedores Operations No 2 Proprietary Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 at [4] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).

185    Emotional harm, fear and distress in the workplace can constitute prejudicial alteration: Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440; 243 IR 312 at [251]-[255] (Siopis J). Additionally, deploying abusive language (including “dogs” and “rats”) at workers waiting to enter their workplace, and “belittl[ing] [workers] as traitors of the Union” were held to amount to prejudice in employment within the meaning of item 7 of s 342: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 at [275]-[278] (Tracey J).

Onus and standard of proof

186    Section 361 of the Act provides that where it is alleged that a person took action for a particular reason or with a particular intent, and taking the action for that reason or with that intent would constitute a contravention of Part 3-1 (which includes ss 343 and 348), then it is presumed that the action was taken for that reason or with that intent unless the person proves otherwise. Applied to the present case and assuming that the other elements of the contraventions are discharged, Mr Gill bears the following onuses:

(1)    in relation to s 343, Mr Gill must establish that the dead dog statement made on 24 August 2021 was not made with the subjective intent to negate the choice of Qube in relation to its participation in the bargaining. The onus of proving the objective element of the use of “unlawful, illegitimate or unconscionable conduct” will still lie with the Ombudsman: Molina at [51]-[52] (Bromberg, Colvin and Abraham JJ);

(2)    in relation to s 348, Mr Gill must establish that the dead dog statement made on 24 August 2021 was not made with the subjective intent to negate the choice of Mr Coelho and/or Mr Copperthwaite to engage in industrial activity. As above, the onus of proving the objective element will still lie with the Ombudsman per Molina; and

(3)    in relation to s 346, Mr Gill must establish that he did not take the alleged adverse action, being that Mr Gill made the dead dog statement on 24 August 2021, because Mr Copperthwaite and Mr Coelho had not engaged in industrial activity.

187    The respondents’ case was that there were numerous deficiencies in the evidence such that the Court could not be satisfied that Mr Gill made the dead dog statement. Mr Gill also put to Mr Copperthwaite that Mr Gill said to him different words on 24 August 2021, being “What are you doing, mate? They’re just using you. Look what they’re doing to you, mate. Why are you here? Where is Al?”. Having not accepted that Mr Gill made the dead dog statement, Mr Gill and the Union did not lead any evidence to discharge the onus as to the reasons why Mr Gill made the dead dog statement. As I have found that Mr Gill did make the dead dog statement, it follows that if the other elements of the contraventions are established then Mr Gill will not be able to discharge the reverse onus in respect of the reason or intent for making the dead dog statement for the purposes of ss 343, 346 and 348.

188    In determining whether Mr Gill has contravened ss 343, 346 and 348 of the Act, I am required to be satisfied on the balance of probabilities having regard to the principles discussed at [150]-[156] above.

The allegation that the coercive conduct was unlawful, unconscionable and unreasonable

189    As explained, the allegations of coercion require that the conduct is unlawful, unconscionable and unreasonable.

190    The Ombudsman says Mr Gill’s conduct was unlawful because it was an unlawful threat pursuant to ss 338A, 338B and 338C(1) of the Criminal Code Compilation Act 1913 (WA). Section 338 of the Criminal Code defines “threat” as “a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat to ... kill, injure, endanger or harm any person” or “cause a detriment of any kind to any person”. Section 338A relevantly provides that a person is guilty of a crime if they make a threat with intent to “cause a detriment” to any person, or “prevent or hinder the doing of an act by a person who is lawfully entitled to do that act” or “compel the doing of an act by a person who is lawfully entitled to abstain from doing that act”. Section 338B relevantly provides that a person is guilty of a crime if they make a threat to unlawfully kill, injure, endanger or harm any person or cause a detriment of any kind to any person. Section 338C relevantly provides that a person is guilty of a crime if they make a statement or convey information which that person knows to be false and which expressly indicates, or may reasonably be construed as indicating a threat to unlawfully kill, injure, endanger or harm any person or cause a detriment of any kind to any person. Alternatively, the Ombudsman submits that Mr Gill’s conduct was said to be unlawful because it was a contravention of s 343 and/or s 346 and/or s 348 of the Act.

191    The Ombudsman says that Mr Gill’s conduct was illegitimate or unconscionable because:

(1)    The actions were organised and or taken by the Union and were participated in by Mr Gill for the purpose of:

(a)    causing Mr Copperthwaite and/or Mr Coelho to experience fear, anxiety and upset in attending work; and

(b)    causing Mr Copperthwaite and/or Mr Coelho to experience fear, anxiety and upset associated with believing that, by attending work, they were placing (and would be placing) at least themselves at risk of harm; and

(c)    causing Mr Copperthwaite and/or Mr Coelho to experience fear, anxiety and upset associated with believing that, by attending work, their standing with their fellow workers would suffer (immediately and in the future).

(2)    The conduct was unlawful;

(3)    The conduct involved repugnant conduct of a threatening and intimidating nature (and deliberately so); and

(4)    The conduct involved reprehensible and disproportionate conduct.

192    Taking into account the principles outlined above, I am satisfied that Mr Gill’s conduct in making the dead dog statement to Mr Copperthwaite was objectively unlawful, illegitimate and unconscionable. The dead dog statement is a statement that may reasonably regarded as constituting a threat to harm Mr Copperthwaite if he continued to attend work at Qube and not engage in the industrial action in breach of the Criminal Code. I am also satisfied that a threat of this nature is an illegitimate means of exerting pressure on Mr Copperthwaite to cease performing work at Qube during the industrial action. I am also satisfied that the conduct is “unconscionable” in the sense that Mr Gill making the threat departed from “right behaviour”.

Alleged contraventions of sections 343, 346 and 348

193    Having regard to those principles and findings, I turn now to each of the pleaded allegations against Mr Gill under ss 343, 346 and 348.

194    The Ombudsman pleads these contraventions of the Act in respect of the allegations at [70(a)] of the Amended Statement of Claim, being that Mr Gill made barking sounds and yelled the words “scab”, “dog” and “I know where you live” in Mr Copperthwaite’s and Mr Coelho’s directions, and [70(b)], being that Mr Gill made the dead dog statement to Mr Copperthwaite. Because I have only found that the dead dog statement is established on the evidence, I assess Mr Gill’s liability under ss 343, 346 and 348 only in respect of the dead dog statement and not the conduct pleaded at [70(a)].

Mr Gill’s coercion of Mr Copperthwaite – s 348

195    The Ombudsman says that the dead dog statement was an action taken by Mr Gill with the intent to negate the choice of Mr Copperthwaite to:

(1)    take part in industrial action, or take industrial action, by performing work in a manner different from that in which it is customarily performed, or adopting a practice in relation to work that results in a restriction or limitation or delay in the performance of work;

(2)    take part in industrial action, or take industrial action, by failing or refusing to attend for work, or failing or refusing to perform work at all while attending work;

(3)    participate in the lawful picket organised or promoted by the Union; and

(4)    participate in the unlawful picket organised or promoted by the Union.

196    The Ombudsman also alleges that the action was taken with the intent to negate the choice of Mr Copperthwaite to comply with a lawful request of the Union to participate in the picket and to represent or advance the views, claims or interests of the Union. However, given my conclusions which follow on the combination of [195(1)-(4)], it is not necessary for me to consider those allegations.

197    The Ombudsman says the dead dog statement amounts to a breach of s 348 of the Act as Mr Gill made this statement with the intent to coerce Mr Copperthwaite to engage in industrial activity. Mr Gill advances two main arguments against this. First, Mr Gill submits that the Ombudsman has not adduced evidence consistent with the hypothesis that Mr Gill had the relevant intent because there is no evidence to suggest the Union or Mr Gill or any other person had any interest in recruiting Mr Copperthwaite to the picket or any union cause, or that the dead dog statement could conceivably persuade Mr Copperthwaite to join the picket or take unlawful industrial action, and that therefore the Ombudsman has not engaged the reverse onus, citing General Motors-Holden v Bowling (1976) 51 ALJR 235 at 241. Second, he alleges deficiencies in the pleading, namely that the Ombudsman has not pleaded that (a) Mr Copperthwaite could lawfully participate in industrial action or the picket; (b) the Union made any request of Mr Copperthwaite; and (c) Mr Copperthwaite was capable of advancing the industrial objectives of the Union.

198    I do not accept the submissions of Mr Gill.

199    Dealing with the first argument, I am satisfied that the evidence adduced is consistent with the hypothesis that Mr Gill intended to coerce Mr Copperthwaite to not continue working, including by carrying out the duties of a stevedore, during the period of the picket. Having found that the words “You’ll end up dead dog if you keep going like this” were said, I am satisfied that these words are consistent with the hypothesis that Mr Gill said them with intent to coerce Mr Copperthwaite to not continuing working. Further, and as I will turn to in more detail below, the evidence establishes that some of the picketers expressed their objection to the decision of Mr Copperthwaite and Mr Coelho continuing to work through the period of the picket; it establishes that the words “dog” and “scab” were directed to both of them. That term scab has a long history. The Oxford English Dictionary defines its extended use as: “a person who refuses to join a strike or who takes over the work of a striker”. It cites Bonner & Middleton’s Bristol Journal from July 5, 1777, as the first use in that context:

To the Public. Whereas the Master Cordwainers have gloried, that there has been a Demur amongst the Men’s and Women’s Men;—we have the Pleasure to inform them, that Matters are amicably settled... The Conflict would not been so sharp had not there been so many dirty Scabs; no Doubt but timely Notice will be taken of them.

200    While I have not found that Mr Gill in particular said the words “scab” and “dog” to Mr Copperthwaite and Mr Coelho, the evidence that some of the picketers said those words is consistent with the hypothesis that the picketers, including Mr Gill, did not want Mr Copperthwaite and Mr Coelho to continue to work, or put another way, they wanted them to adopt a practice in relation to work that results in a restriction or limitation or delay in the performance of work, or take part in industrial action, or take industrial action, by failing or refusing to attend or failing or refusing to perform work at all while attending work.

201    As for Mr Gill’s second argument, the purported problems in the Ombudsman’s pleadings do not preclude me from finding that Mr Gill is liable under s 348 in respect of Mr Copperthwaite. I am satisfied that the dead dog statement was an action taken which was objectively unlawful, illegitimate or unconscionable and was taken with the subjective intention of negating Mr Copperthwaite’s choice in relation to engaging in industrial activity in the ways outlined at [195(1)-(4)]. Mr Gill did not give any evidence to discharge the onus as to his intent. If just one of the reasons at [195(1)-(4)] is established, then that is enough for s 348 liability to be established. Mr Gill has not discharged the onus. I am satisfied that the dead dog statement was at least made with the intent to negate the choice of Mr Copperthwaite to take part in industrial action within the meaning of items (1) and (2).

Mr Gill’s coercion of Mr Coelho – s 348

202    The Ombudsman says that the dead dog statement was an action taken by Mr Gill with the intent to negate the choice of Mr Coelho to:

(1)    take part in industrial action; or

(2)    participate in the picket and/or industrial action and/or refusal to perform work for Qube; or

(3)    comply with the request made by, or requirement of, the Union for him to participate in the picket and/or industrial action and/or engage in the refusal to perform work for Qube; or

(4)    represent or advance the views, claims or interests of the Union; or

(5)    become a member of the Union.

203    The Ombudsman says this amounts to a breach of s 348 of the Act, as Mr Gill’s actions were taken with the intent to coerce Mr Coelho to engage in industrial activity.

204    As discussed at [194] above, I have only found that Mr Gill made the dead dog statement. There was no allegation that the dead dog statement made to Mr Copperthwaite was also directed to Mr Coelho. Mr Coelho gave evidence that he “did not hear” what Mr Gill said, and that he did not “know the bloke. I didn’t even see who he was”. In these circumstances I cannot be satisfied that the statement was made with an intention of negating any choice of Mr Coelho. This allegation is not made out.

Mr Gill’s coercion of Qube – s 343

205    The Ombudsman says that the dead dog statement was an action taken by Mr Gill with the intent to negate the choice of Qube (and had the capacity to so) “in relation to its participation in the bargaining, that is, to do so in accordance with the views of the [Union] … namely, to agree to the Proposed Enterprise Agreement sought” by the Union. The Ombudsman says this amounts to a breach of s 343 of the Act, as Mr Gill’s actions were taken with the intent to coerce Qube to exercise is workplace rights in a particular way. Mr Gill submits that the Ombudsman has not identified in her pleading the source of the alleged “right to participate in bargaining”. Mr Gill says that the Ombudsman has not pleaded that Qube had a relevant workplace right as defined by the Act, namely she has not pleaded that Qube (a) had the benefit of, or a role or responsibility under, any workplace law, instrument or order of an industrial body; (b) was able to initiate or participate in a process or proceedings under a workplace law or workplace instrument; or (c) was able to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument as required by s 341(1) of the Act. Mr Gill submits that therefore the allegation fails at the level of the pleading.

206    The Amended Statement of Claim relevantly pleads that a person has a "workplace right" if the person, amongst other things, is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument. It further provides that each of the following are a “process of proceeding under a workplace law or workplace instrument”:

(1)    protected industrial action; and

(2)    making, varying or terminating an enterprise agreement; and

(3)    bargaining in relation to a proposed enterprise agreement.

207    The Ombudsman then alleges that at the time of the 24 August 2021 Actions (which includes the Gill 24 August 2021 Action), Qube had a right to “participate in the Bargaining” and that that right was a “workplace right” within the meaning of the Act. The Amended Statement of Claim defines the “Bargaining” as “bargaining in relation to a proposed enterprise agreement that would cover various employees”.

208    Returning then to the definition of “process or proceeding under a workplace law or workplace instrument”, that definition does not expressly include “bargaining in relation to a proposed enterprise agreement” but the Ombudsman submits that such a right is covered. In support of that position the Ombudsman relies upon the decisions of Lee J in Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; 308 IR 244 at [282]; Transport Workers’ Union of Australia v Qantas Airways Limited (No 2) [2021] FCA 1012; 308 IR 333 at declaration [1] and the consideration of those decisions on appeal by the Full Court and High Court (Qantas decisions). She also relies upon the decision of Gilmour J in Murdoch University v National Tertiary Education Industry Union (No 2) [2017] FCA 1507 at [74]-[90].

209    Dealing first with the Qantas decisions, those cases concerned the decision by Qantas Airways Limited to outsource ground handling operations work at Australian airports to a number of third parties. This decision adversely affected employees doing that work. The allegations made against Qantas included an allegation that the action taken against those affected employees was because they had, or had exercised or proposed to exercise, a workplace right to “participate in bargaining”. Lee J concluded that the outsourcing decision contravened the Act because it was made for reasons that included a proscribed reason, namely, preventing the exercise by the affected employees of their workplace right to organise and engage in protected industrial action and participate in bargaining, because Qantas had not discharged the onus imposed by s 361 of displacing that as a substantial and operative reason.

210    Before his Honour, and on appeal, the parties did not dispute that the participation in bargaining could constitute a workplace right for the purposes of the Act. It was not in issue in those cases. That was accepted by the Ombudsman. I therefore consider that these cases carry little weight in allowing me to accept that participation in enterprise bargaining is a workplace right. As was explained by McHugh J in Coleman v Power [2004] HCA 39; 220 CLR 1 at [79]:

Cases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue. If the conceded issue is a necessary element of the decision, it creates an issue estoppel that forever binds the parties. But that is all. The case can have no wider ratio decidendi than what was in issue in the case. Its precedent effect is limited to the issues.

211    As for Murdoch, Gilmour J in that case considered whether participation in bargaining could constitute a workplace right (for the purposes of s 345 of the Act: prohibiting misrepresentations about workplace rights) in the context of a strike out application. There the respondent union complained, first, that there was no workplace right to “participate” in enterprise bargaining per se. The relevant employer right protected by s 341(2)(e) is the right to “make” an enterprise agreement. Given the legislative scheme, the respondent submitted that can only sensibly refer to the employer's right to propose an agreement under s 181 of the Act. It cannot extend to everything an employer does in the course of negotiations. Second, the respondent union submitted that even if (contrary to the above submission) there was a workplace right to “participate” in bargaining in a general way, a misrepresentation would only be caught by s 345 if it is “about” the “exercise” of that right, specifically. They claimed that the representation was about the quality of Murdoch’s participation, not whether it exercised its claimed right to “participate” in bargaining.

212    His Honour rejected the submissions as lacking “cogency” and proceeding on a particular statutory construction that was incorrect. In accepting that participation in enterprise bargaining could be a workplace right under s 341(2)(k), his Honour said at [78]-[80]:

There is a ‘process’ recognised under the FW Act which can be described as ‘enterprise bargaining’. It is a phrase used in industrial law since the early 1990s, in relation to the process of negotiating and making enterprise-based agreements to regulate terms and conditions of employment (instead of awards): R Naughton, The Shaping of Labour Law Legislation: Underlying Elements of Australia’s Workplace Relations System (LexisNexis Butterworths, 2017) at [3.68]. It is now fully regulated by the FW Act as to its commencement, participation in and cessation.

This is the process or proceeding under a workplace law, within the meaning of s 341(2)(k) of the FW Act, about which Murdoch alleges the respondents made representations.

In April 2016, Murdoch has participated in the enterprise bargaining process. I accept that, in doing so, Murdoch has exercised a workplace right.

213    Whilst his Honour was considering the matter in the context of a strike out application, I consider that as a matter of comity I am bound to follow his Honour unless I determine that he was plainly wrong: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 at [3]-[14]; [21] (Allsop CJ). I am not satisfied that he was plainly wrong. It is open to interpret the words “any other process … under a workplace law or workplace instrument” in s 341(2)(k) to refer to the process of enterprise bargaining. Neither the Union nor Mr Gill submit that Murdoch is incorrect, outside of Mr Gill’s submission that the Ombudsman has not identified in her pleading the source of its right to enterprise bargaining. In light of Murdoch, I consider that Qube had a workplace right to participate in enterprise bargaining for the purposes of s 341(2)(k).

214    That said, I also consider that participating in enterprise bargaining could be a workplace right under s 341(2)(e). There could be scope for the word “making” in the context of “making, varying or terminating an enterprise agreement” in s 341(2)(e) to extend to participating in enterprise bargaining. The language in s 341(2)(e) does not suggest that the word “making” should be narrowly confined to an employer’s right to request employees to approve a proposed enterprise agreement under s 181, as the respondent union in Murdoch argued. In my view, the word “making” could extend to the necessary processes leading up to the enterprise agreement being “made” under s 182. However, it is ultimately unnecessary for me to decide in the present case whether participating in enterprise bargaining could be a workplace right under s 341(2)(e) in circumstances where I do not consider that Murdoch is plainly wrong.

215    As set out above I am satisfied that Mr Gill made the dead dog statement to Mr Copperthwaite as pleaded. I am satisfied that that was the taking of an action for the purposes of the Act. Having regard to the above I am also satisfied that participating in enterprise bargaining constitutes a workplace right.

216    I have already concluded that the actions of Mr Gill were objectively unlawful, illegitimate or unconscionable: at [192] above. The next question is whether the action taken by Mr Gill (the dead dog statement to Mr Copperthwaite) was not only taken with a subjective intention to negate the choice of Mr Copperthwaite, but also to negate the choice of Qube, in relation to its workplace rights. The Ombudsman relies on the reverse onus contained in s 361 of the Act which presumes the action was taken with the unlawful intent unless Mr Gill proves otherwise. I consider that Mr Gill making the dead dog statement to Mr Copperthwaite is consistent with the hypothesis that Mr Gill intended to negate the choice of Qube in relation to its participation in enterprise bargaining given Mr Copperthwaite was an employee of Qube who continued to attend work during the industrial action. Having regard to the fact that Mr Gill did not give any evidence to discharge the onus, I am satisfied that Mr Gill made the dead dog statement to Mr Copperthwaite with a subjective intention of negating Qube's choice in relation to its workplace rights.

Mr Gill’s coercion of Qube – s 348

217    Both parties accept that the s 348 coercion claim of Mr Gill’s coercion of Qube must be dismissed due to application of the principles in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; 282 FCR 1. I summarise the relevant principles for completeness.

218    In Bay Street, the majority of the Full Court was of the view that the “lawful request … or requirement” in s 347(b)(iv) for the purposes of engaging or not engaging in “industrial activity” was limited to protecting a person’s freedom of association by ensuring that people are free to participate or not in the lawful activities of or concerning industrial associations. At [30], Allsop CJ relevantly said:

In particular, there is no call to construe s 347(b)(iv) as extending to a party complying or not with a lawful request by or requirement of an association not about activities of or concerning the association, but about working conditions on a building site, or, perhaps, about the terms and conditions of a proposed sale of commercial property by a third party to the association, or, perhaps, about the terms of a proposed newspaper story about the association and its activities. Such subjects of requests fall within the literal words of s 347(b)(iv), but have nothing to do with participation in the activities of or concerning the association, though each may, or may not, have some connection with industrial activity. Countless other examples flow from modest releases of the imagination.

219    Flick J similarly said at [74]:

In essence, s 347(b)(iv) should be confined in its interpretation and application to protecting a person’s freedom of association and participation or non-participation in the activities of industrial associations, and should not be extended to conduct in circumstances where a union makes a request of, or a requirement of, an employer.

220    The Ombudsman accepts that the s 348 claim concerning coercion of Qube (as the employer) to engage in industrial activity by a lawful request or requirement must be dismissed having regard to the principles in Bay Street. The Ombudsman reserves her right to argue on any appeal that the majority in Bay Street erred. The Ombudsman accepts, and I agree, that I am bound by the approach in Bay Street in the present case.

Mr Gill’s adverse action against Mr Copperthwaite – s 346

221    The Ombudsman says that Mr Gill took adverse action against Mr Copperthwaite within the meaning of s 342(1) of the Act. The Ombudsman says that the dead dog statement on 24 August 2021 had the effect, directly or indirectly, of prejudicing Mr Copperthwaite in his employment. I understand this submission is referring to Item 7(b) of s 342(1) of the Act, being that Mr Gill is a member of the Union and has taken action that had the effect, directly or indirectly, of prejudicing Mr Copperthwaite in his employment.

222    The Ombudsman says that the dead dog statement was an action taken by Mr Gill against Mr Copperthwaite because Mr Copperthwaite had not engaged in, or had until then not engaged in, or proposed to not engage in:

(1)    encouraging or participating in an unlawful activity (within the meaning of s 347(d) of the Act) organised or promoted by the Union (that is, the picket and/or industrial action); and

(2)    complying with an unlawful request made by, or requirement of, the Union (within the meaning of s 347(e) of the Act) (that is, participating in joining the picket and/or industrial action); and/or

(3)    taking part in industrial action, or taking industrial action, by performing work in a manner different from that in which it is customarily performed, or adopting a practice in relation to work that results in a restriction or limitation or delay in the performance of work; and/or

(4)    taking part in industrial action, or taking industrial action, by failing or refusing to attend for work, or failing or refusing to perform work at all while attending work.

223    As a result, it is alleged that Mr Gill contravened s 346 of the Act.

224    As I have said at [196] above, the Ombudsman also alleges that Mr Gill took actions on 24 August 2021 against Mr Copperthwaite because he had not engaged, or had until then not engaged, or proposed to not engage, in complying with a lawful request made by, or requirement of, (within the meaning of s 347(b)(iv) of the Act) the Union (that is participating in the picket and/or industrial action) and representing or advancing the views, claims or interests (within the meaning of s 347(b)(v) of the Act) of the Union. As I explained at [201], if I find just one of the reasons pleaded by the Ombudsman to be the reason for the adverse action then that is enough. I do not have to be satisfied that the adverse action was taken because of all the pleaded reasons.

225    Mr Gill points to alleged deficiencies in the pleadings. He says these are matters of substance and not “mere” pleading points. Mr Gill says that the Ombudsman has elected to plead that the broader “24 August 2021 Actions”, comprising both the “Gill” and “non-Gill” conduct, caused Mr Copperthwaite and Mr Coelho to experience fear, anxiety and upset. Mr Gill submits that having done so, it was necessary for the Ombudsman to plead consistently that the broader 24 August 2021 Actions were motivated by a relevant prohibited reason, and she has not done so.

226    I do not find this submission persuasive because I do not read the Ombudsman pleadings in the same way. I consider that the passage at [81] of the Amended Statement of Claim, which pleads that Mr Gill participated in the 24 August 2021 Actions for the purpose of causing Mr Copperthwaite and/or Mr Coelho to experience fear, anxiety and upset, is sufficient to be a pleading that Mr Gill’s actions on 24 August 2021 had that impact on Mr Copperthwaite and Mr Coelho. Having made this pleading about the impact on Mr Copperthwaite and Mr Coelho, the Ombudsman then pleads Mr Gill took adverse action by his conduct on 24 August 2021 for the reasons outlined at [222]-[223] above. In my view, the pleadings are not so deficient so as to preclude me from finding Mr Gill liable under s 346 in respect of Mr Copperthwaite.

227    As to Mr Gill’s other arguments regarding deficiencies in the pleadings, I find that, first, the fact that the Ombudsman’s pleadings appear to plead inconsistent propositions rather than “in the alternative” and second, that the allegation that the picket was not unlawful and there is no evidence that the Union organised unlawful industrial action, both do not mean that the claim must fail. This is because, again, if just one of the pleaded reasons is established then that is sufficient to be the prohibited reason for a s 346 claim. Consistent with the discussion at [201] above, I am satisfied that the dead dog statement was action taken because Mr Copperthwaite had not engaged in taking part in industrial action within the meaning of [222(3)] and [222(4)] above.

228    Mr Gill did not give any evidence to discharge the reverse onus in s 361. I am satisfied that the evidence adduced is consistent with the hypothesis that Mr Gill made the dead dog statement to Mr Copperthwaite because Mr Copperthwaite had not engaged in taking part in industrial action within the meaning of [222(3) and (4)] above.

229    As to whether there has been the requisite adverse action, I am satisfied that, in making the dead dog statement to Mr Copperthwaite, Mr Gill took adverse action against Mr Copperthwaite. Consistent with comments at [185], I accept that emotional harm, fear and distress in the workplace can constitute prejudicial alteration in a person’s employment within the meaning of s 342(1).

230    I therefore find that Mr Gill has contravened s 346 of the Act in respect of Mr Copperthwaite.

Mr Gill’s adverse action against Mr Coelho – s 346

231    The Ombudsman says that the dead dog statement was an action taken by Mr Gill against Mr Coelho because Mr Coelho had not engaged in, or not proposed to engage in:

(1)    encouraging or participating in an unlawful activity (within the meaning of s 347(d) of the Act) organised or promoted by the Union (that is, the picket and/or industrial action and/or refusal to work for Qube); or

(2)    complying with an unlawful, or lawful, request made by, or requirement of, the Union (within the meaning of s 347(e) of the Act) (that is, participating in joining the picket and/or industrial action and/or refusal to work); or

(3)    taking part in industrial action, or taking industrial action, by performing work in a manner different from that in which it is customarily performed, or adopting a practice in relation to work that results in a restriction or limitation or delay in the performance of work; or

(4)    taking part in industrial action, or taking industrial action, by failing or refusing to attend for work, or failing or refusing to perform work at all while attending work; or

(5)    representing or advancing the views, claims or interests of the Union; or

(6)    becoming a member of the Union.

232    As a result, the Ombudsman says Mr Gill contravened s 346 of the Act against Mr Coelho by his conduct.

233    For the same reasons as explained at [204] above, I cannot be satisfied that Mr Gill’s dead dog statement to Mr Copperthwaite was adverse action taken against Mr Coelho. As explained above, the dead dog statement was made to Mr Copperthwaite. There was no allegation that it was also directed to Mr Coelho. Mr Coelho’s evidence was that he did not hear the statement.

UNION LIABILITY GENERALLY

234    The Ombudsman submits that the Union is liable for conduct that occurred on 24 August 2021. It says that liability arises first, because of “primary corporate responsibility” by operation of ss 363 and 793 of the Act. Second, “as a matter of statutory construction, where the [Union] organised the picket, it should be held to have directly contravened ss 343, 348 and 346” (original emphasis). Third, as the result of the operation of “common law vicarious liability”. Fourth, as “derivative liability” by operation of ss 362 and 550 of the Act. Of course, the liability of the Union in those ways is to be determined in the particular circumstances of each case. The assessment of each form of alleged liability is considered below by reference to the evidence and submissions before the Court in this matter.

235    I note also that it is not pleaded that the Union is liable for all the alleged conduct in all of those ways set out above. As explained above, there are two relevant definitions of conduct engaged in on 24 August 2021. First, the “24 August 2021 Actions”, which is defined to include the conduct pleaded at [65]-[70] (Part D1) of the Amended Statement of Claim. Second, Mr Gill’s participation in all of the 24 August 2021 Action is then defined as the “Gill 24 August 2021 Action”. The Gill 24 August 2021 Action is confined to the conduct alleged at [70(a)-(c)] given the Ombudsman conceded this on the first day of hearing.

236    The Amended Statement of Claim is not particularly clear where it pleads the Union’s liability. At [80], the Amended Statement of Claim alleges that the Union “organised and/or took the 24 August 2021 Actions”. That is particularised in the following way:

The CFMEU’s organisation of and engagement in the 24 August 2021 Actions was to be inferred from the facts and matters in:

(a)    Parts 7(d)-A10; and

(b)    Part B

and the operation of ss.363 and/or 793 of the FW Act and/or the common law principle of vicarious liability.

237    There is no “Part 7(d)” of the Amended Statement of Claim. I understand the reference at [80(a)] to be to paragraph [7(d)] to Part A10. These passages in the Amended Statement of Claim plead the roles held by Chris Cain, William Tracey, Doug Heath, Paul Brett, Dave Noonan, John Setka and Jason Gill in relation to the Union; while Part B describes the industrial dispute between Qube and the Union. Notably, Part B deals in part with the Union’s social media campaign, which I have described and discussed previously at [30]-[40].

238    The Union’s liability in respect of ss 343, 348 and 346 is pleaded respectively at [91]-[92], [97]-[100] and [109]-[112] of the Amended Statement of Claim. In each of those pleadings, the 24 August 2021 Actions are said to be “organised and/or taken” by the Union. None of those pleadings are particularised. It is unclear whether they should be read in the same way as [80] of the Amended Statement of Claim, namely that the liability is to “inferred from the facts and matters … and the operation of ss 363 and/or 793 of the FW Act and/or the common law principle of vicarious liability”. Alternatively, it might be said that [80] intends to plead some form of direct liability together with the primary, vicarious and derivative liability.

239    In her oral opening submissions, the Ombudsman submitted that:

the conduct from 24 August is organised or taken by the CFMEU. Our primary case is a direct liability case that the Union set up to picket … that conduct on 24 August becomes – they own that conduct, it becomes their own conduct.

240    In her written closing submissions, the Ombudsman submitted that:

as a matter of statutory construction, where the [Union] organised the picket, it should be held to have directly contravened ss 343, 348 and 346

(Original emphasis.)

241    In relation to the (non-Gill) 24 August 2021 Action, I have approached the liability of the Union on the basis that the Ombudsman alleges, in respect of each of ss 343, 348 and 346, that the Union is liable because:

(1)    of the operation of ss 363 and 793 of the Act;

(2)    “as a matter of statutory construction, where the [Union] organised the picket, it should be held to have directly contravened ss 343, 348 and 346 (original emphasis); and

(3)    of the operation of “common law vicarious liability”.

242    The Ombudsman does not allege that the Union is derivatively liable for the (non-Gill) 24 August 2021 Actions by operation of ss 362 and 550. Rather, the Ombudsman only alleges that the Union is liable by operation of those derivative liability sections for the contraventions of Mr Gill (the Gill 24 August 2021 Action). Those provisions are considered only in the context of those alleged contraventions.

243    The section that follows deals with the Union’s liability for the Gill 24 August 2021 Action. I then make findings regarding the (non-Gill) 24 August 2021 Action before determining the Union’s liability for that conduct consistent with the above.

Union's liability for Mr Gill’s conduct

244    As explained above, the Ombudsman alleges that the Union is liable for all of Mr Gill’s conduct. It says that liability arises because:

(1)    of “primary corporate responsibility” by operation of ss 363 and 793 of the Act;

(2)    of “derivative liability” by operation of ss 362 and 550 of the Act;

(3)    of the operation of “common law vicarious liability”; and

(4)    “as a matter of statutory construction, where the [Union] organised the picket, it should be held to have directly contravened ss 343, 348 and 346” (original emphasis).

245    Each of these forms of alleged liability is considered below.

Union’s liability under ss 363 and 793

246    The parties agree that at all relevant times Mr Gill was a member of the Union. The Ombudsman further alleges that Mr Gill was:

(1)    an agent of the Union; and

(2)    in a representative role or capacity for the Union in terms of representing the objects and interests of the Union in respect of the Fremantle Port Dispute (as that term is defined in the Amended Statement of Claim), including by representing, with others, the Union at meetings held in October 2021 for the purpose of Bargaining (as that term is defined in the Amended Statement of Claim).

247    Relevantly, s 363(1)(b) provides that action taken by an agent of an industrial association acting in that capacity is taken to be action of that industrial association.

248    Section 793(1) relevantly provides that any conduct engaged in on behalf of a body corporate by an agent of the body corporate within the scope of his or her actual or apparent authority, or by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body corporate, if the giving of the direction, consent or agreement is within the scope of official’s actual or apparent authority, is taken to have been engaged in by the body corporate.

249    I deal first with the allegation that Mr Gill was in a “representative role or capacity”. I understood this submission to be directed at s 363(1)(b). Whilst the Ombudsman alleged that was so by matters “including” Mr Gill’s participation in “meetings”, the only evidence relied upon was Mr Gill’s appearance at one bargaining meeting. Evidence of Mr Gill’s attendance at that bargaining meeting was given by Mr Kranendonk in his evidence in chief. However, in cross-examination, Mr Kranendonk’s evidence was that Mr Gill “appeared on the screen” at the commencement of the bargaining meeting (held by Teams) and was asked to leave the meeting by a representative of Qube because of the allegations (arising from the events of 24 August 2021) made against him. Mr Gill complied with the request. He did not participate in the meeting. There was no evidence about the capacity in which Mr Gill “appeared on the screen” or the role that he intended to play in the meeting. There was no other evidence about how it was alleged that Mr Gill was in a “representative role or capacity” in “terms of representing the objects and interests of the [Union] in respect of the Fremantle Port Dispute”.

250    I am not satisfied that the evidence establishes that Mr Gill was in a representative role or capacity.

251    On the allegation that Mr Gill was an agent of the Union, the Ombudsman submits that the reference to an agent in s 793 (and s 363) should be given its ordinary and natural meaning, which it submits is “a person acting on behalf of another”. The Union submits that the word “agent” in ss 793 and 363 should be given its established legal meaning.

252    The word “agent” is not defined in the Act. Its meaning is to be determined by reference to the purpose of the Act and the object of and context in which reference to the term is made: see G E Dal Pont, Law of Agency, 4 ed, 2021 at 1.7. However, there is a presumption that where a statute uses a word with an established legal meaning, that is the meaning that the word should have unless the context suggests otherwise: see Lo v Russell [2016] VSCA 323 at [46] (Warren CJ, Tate and McLeish JJA) footnoting A-G (NSW) v Brewery Employees Union of New South Wales (1908) 6 CLR 469 at 531 (O’Connor J); Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; 195 CLR 566 at [45] (Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; 221 CLR 249 at [25] (McHugh, Gummow, Hayne and Heydon JJ).

253    The Union relies on that presumption and submits that nothing in ss 363 or 793 indicates any intention to depart from the established legal meaning. It says further that text and context establish that the word agency should have its established legal meaning as opposed to the word’s ordinary meaning as “a person acting on behalf of another”. The Union submits that, first, that meaning would render the words in the chapeau of s 793 “on behalf of a body corporate” otiose. Second, the words “within the scope of his or her actual or apparent authority” are nonsensical unless applied to the established legal meaning of agent.

254    I accept that the word “agent” should be given its established legal meaning. There is nothing in the Act to indicate that it should not. The text, for the reasons the Union submits, supports the established legal meaning. The presumption that it should have its established legal meaning is not displaced.

255    Ordinarily the party who alleges the existence of an agency relationship bears the burden of proving that relationship and of establishing whether or not the agent acted within the scope of their actual or apparent authority: see G E Dal Pont, Law of Agency, 4 ed, 2021 at 1.10 citing McLaughlin v Daily Telegraph Newspaper Co Ltd (1904) 1 CLR 243 at 276 (Griffith CJ); Baker v Taylor (1906) 6 SR (NSW) 500 at 502-503 (Street J); Cadd v Cadd (1909) 9 CLR 171 at 187 (Isaacs J); Hoare v McCarthy (1916) 22 CLR 296 at 303 (Griffith CJ); Clayton Robard Management Ltd v Siu (1988) 6 ACLC 57 at 59 (Kirby P).

256    The allegation that Mr Gill is an agent of the Union is not particularised. The allegation that Mr Gill took the Gill 24 August 2021 Action in his capacity as an agent of the Union is particularised as being inferred from:

(1)    Mr Gill's presence at the picket on 24 August 2021;

(2)    the nature of the Gill 24 August 2021 Action;

(3)    the matters in Part A10, being those paragraphs which identify and define Mr Gill;

(4)    the matters in Part B, being those paragraphs which deal with the dispute between the Union and Qube; the protected industrial action; the picketing; the resolution of the dispute and the picket; and the allegation that the Union organised, encouraged and participated in the picket; and

(5)    Mr Gill's knowledge at the time of the matters in Part B, including his knowledge of some or all of the Union’s social media campaign.

257    I understand this pleading to contend that these particulars are to be read cumulatively. Out of caution, I have considered them both cumulatively and separately.

258    An agency relationship may be created at least by agreement (express or implied), by subsequent ratification, or by operation of law. I understand the submissions of the Ombudsman as alleging that the agency relationship was created by agreement, implied by the conduct or situation of the parties. I say that because the particulars to the paragraph alleging that Mr Gill took the 24 August 2021 action in his capacity as an agent for the Union are directed to the conduct or situation of the parties that might be said to constitute an implied agency agreement, rather than agency by express agreement, ratification or operation of law.

259    There are at least two elements commonly identified as essential to recognising an agency relationship. First, the consent of both the principal and agent. Second, the authority given to the agent to act on the principal’s behalf.

260    Consent requires the acceptance by the agent of the mandate from the principal. An agency relationship can only be established by the consent of both the principal and the agent (whether actual or implied): see Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29; 296 ALR 465 at [54] (North, Cowdroy and Katzmann JJ). In Field v Shoalhaven Transport Pty Ltd [1970] 3 NSWR 96 at [103], Asprey J said that the principal must intend that the agent will act for him or her, and the agent must intend to accept and act on the authority. Of course, the establishment of such intention, and the existence of agency, will depend on the facts of each case. However, the parties need not actually use agency language for the law to infer an intention to create an agency relationship, and there need not be a positive act by the principal and the agency may be created by the principal’s acquiescence.

261    Authority requires that the agent be in some way authorised to act on behalf of the principal: see NMFM Property Pty Ltd v Citibank Ltd (No 10) [2000] FCA 1558; 107 FCR 270 at [522] (Lindgren J). The authority may be express or implied. That is, implied from the conduct of the parties and the circumstances. The authority might provide the agent with authority for limited or specific purposes and not in all circumstances. It does not deny the agent all capacity to act in their own right.

262    Dealing separately with the particulars to the allegation of agency. Particular (a) relies upon Mr Gill’s “presence at the Picket on 24 August 2021”. There was no dispute that Mr Gill was present at the picket on 24 August 2021. Insofar as that fact is intended to separately establish agency, it is inadequate in establishing consent and authority. Insofar as it is said to cumulatively do so, that is considered further below.

263    Particular (b) relies upon the nature of the “Gill 24 August 2021 Action”. The Gill 24 August 2021 Action is constituted by the alleged conduct that Mr Gill engaged in on that day (as a subset of all the alleged conduct engaged in by the picketers). By reference to the Amended Statement of Claim, that can only be making barking sounds and yelling the words “scab”, “dog” and “I know where you live” towards Mr Copperthwaite and Mr Coelho when Mr Copperthwaite arrived at the Gate. Then, Mr Gill getting within 30 centimetres of Mr Copperthwaite and saying to him: “You’ll end up dead dog if you keep going like this”. I am not satisfied that conduct establishes the requisite consent and authority of an agency relationship. There is nothing in that conduct that might be said to establish consent between the Union and Mr Gill. There is nothing in that conduct that, expressly or impliedly, authorised Mr Gill to act on behalf of the Union.

264    Particular (c) relies upon “the matters in Part A10” of the Amended Statement of Claim. That part contains two paragraphs. The first alleges that Mr Gill was employed by Qube until December 2021 and that his employment was terminated as a consequence of his conduct on 24 August 2021. The second alleges, without particularisation, that Mr Gill was a member, agent, and representative of the Union. Those matters are not, of themselves or together, adequate to establish an agency.

265    Particular (d) relies upon “the matters in Part B” of the Amended Statement of Claim. Part B describes the industrial dispute between Qube and the Union, including describing the conduct of the picketers at the picket, the participation of Union officials in the picket, and the social media campaign undertaken by the Union at the time of the picket. I do not consider that these facts are enough, in themselves, to establish an agency relationship between Mr Gill and the Union.

266    Particular (e) relies upon “Gill's knowledge at the time of the matters in Part B, including his knowledge of some or all of the Media Campaign”. I do not consider that Mr Gill’s knowledge alone of any or all of the matters in Part B establishes the requisite consent and authority of an agent relationship.

267    Considering the particulars cumulatively, I am not satisfied that an agency relationship existed between Mr Gill and the Union. I do not see how the particulars establish the Union intended that Mr Gill act for it, or that Mr Gill was authorised to act for the Union.

268    At the hearing, the Ombudsman submitted further that because the Union did not condemn the conduct at the picket in the lead-up to 24 August 2021, and allowed the social media campaign to “inflam[e] the situation”, this was an ingredient that pointed towards an agency agreement between everyone attending the picket thereafter, including Mr Gill, and the Union. She says the Union and the picketers shared a “common purpose”. I am not satisfied that the failure to condemn conduct at the picket, or sharing a “common purpose”, is sufficient to demonstrate the consent of both the Union and Mr Gill to an agency agreement, nor is it sufficient to demonstrate that Mr Gill had the authority to act on behalf of the Union.

269    I am not satisfied that the Ombudsman has established that Mr Gill took the 24 August 2021 Action in his capacity as an agent for the Union.

Acting within the scope of his actual or apparent authority

270    Having found that no agency relationship was created, it is not necessary for me to determine whether Mr Gill was acting within the scope of his actual or apparent authority in the alleged agency relationship. However, for completeness (and in the event that I am wrong about the establishment of an agency relationship) I add the following comments.

271    It is not sufficient to allege agency alone; it is necessary to determine what the agent is authorised to do.

272    As set out above, the party who alleges the existence of an agency relationship bears the burden of proving that relationship and of establishing whether or not the agent acted within the scope of their actual or apparent authority.

273    Actual authority requires the consent of both the principal and agent, although the manifestation of that consent may be express or implied: Mpinda v Fair Work Commission (No 2) [2024] FCA 692 at [16] (Feutrill J). The scope of the agent’s authority is a question of fact to be determined by the evidence, including authority inferred from established facts: Mpinda at [16] citing Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131; 220 ALR 211 at [124]-[126] (Branson, Nicholson and Jacobson JJ) and the authorities there cited.

274    The Ombudsman has not explained the basis upon which it alleges that both the Union and Mr Gill consented to the actual authority of Mr Gill. She does not identify the evidence she relies upon to establish actual authority beyond merely restating the particulars provided at [120] of the Amended Statement of Claim, as provided in [256]. I am not satisfied that the facts established in this case make out such authority.

275    As to apparent authority, it is necessary for the Ombudsman to establish that the Union held out, in some way, that Mr Gill had authority to act on its behalf at the picket and that third parties (such as Mr Copperthwaite and Qube) relied on that holding out and that their reliance was reasonable: Pourzand v Telstra Corporation Ltd [2014] WASCA 14 at [83]-[84], [86] (McLure P), [131] (Murphy JA); see also British Marine PLC v Wollongong Coal Ltd [2015] FCA 403 at [213] (Buchanan J). Establishing reliance is a subjective question of fact, whilst establishing that the reliance was reasonable imports an objective standard: Mpinda at [18] (Feutrill J) citing Pourzand at [83]-[84], [86] (McLure P), [113], [115] (Pullin JA) [128]-[131] (Murphy JA), and the authorities there cited.

276    The Ombudsman has not explained the basis upon which she alleges that the Union held out that Mr Gill had authority to act on its behalf. She has not explained the basis upon which reliance is said to be established or the reasonableness of that reliance. She does not identify the evidence she relies upon to establish apparent authority, save for referencing the particulars stated in [256]. I am not satisfied that the facts established in this case make out apparent authority.

277    Recently, in Bird v DP [2024] HCA 41; 419 ALR 552 the High Court examined whether the Roman Catholic Diocese of Ballarat was vicariously liable for the assault and sexual abuse of a Catholic priest from a church within the Diocese. When examining the issue of agency, Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ stated at [35]:

Although DP [the respondent by pseudonym] expressly pleaded that Coffey [the priest] was the agent of the Diocese, there was no finding that Coffey was the true agent of the Diocese in the sense described above. That is unsurprising. The unlawful acts done by Coffey were not done (and could not have been done) as the "true agent" of the Diocese; they were not done with the Diocese's, or the then Bishop's, express, implied or apparent authorisation, and at no time were those acts ratified by them.

278    Likewise, here, for the reasons explained above, there is no evidence to establish that the actions of Mr Gill were done with the Union’s express, implied or apparent authorisation, and at no time were his acts ratified by it.

279    In her closing submissions, the Ombudsman relied on s 363(1)(c)(iii) of the Act. That section relevantly provides that action taken by a member of an industrial association will be taken to be action taken by the industrial association if the action was authorised by an officer of the industrial association acting in that capacity. The Ombudsman says here that an officer of the Union authorised the conduct of Mr Gill in several ways. First, the attendance of officers on particular days. Second, the “broken bricks” email is evidence of authorisation because it is an indication of violence and there is no evidence the Union responded to that email. The Ombudsman therefore submits that by not responding, the Union gave a licence to Mr Gill to do whatever he saw fit. Third, the evidence of Mr Coelho given to Inspector Tonev where it is recorded that “on a daily basis, the picketers verbally shouted to me entering the ports saying … ‘I’m coming to get you’ [and] ‘I know how [many] kid[s] you have’”. The Ombudsman submits those statements were threats of violence. Fourth, the failure by the Union generally to prevent abusive, intimidatory or threatening conduct on the picket in the lead up to 24 August 2021, and the fact that Mr Gill engaged in that very same type of conduct. Fifth, the “implicit or express endorsement” of Mr Gill’s conduct by organising his attendance at a bargaining meeting after 24 August 2021. Sixth, the Union failing to take steps to investigate whether Mr Gill engaged in the 24 August 2021 conduct that was alleged against him by Qube.

280    As to the first and third ways, there was no assessment of the days officers were said to be in attendance and the days that threats were said to be made. As set out above, Mr Kranendonk gave evidence that he attended at port locations 90% of the time and he identified certain officials present on 70% of those occasions. However, his evidence described “banter” rather than threats and that the picketers were not “disgruntled towards” him. Mr Coelho’s evidence about what was said to him did not include evidence that there were Union officials present at those times. Even accepting that officials regularly attended, I am not satisfied on the evidence that the officials heard and authorised the threats that Mr Coelho describes.

281    Likewise, I am not satisfied that the Union’s lack of response to Mr Gill’s email about “broken bricks” is sufficient to establish authorisation by the Union for Mr Gill’s conduct. Mr Gill’s email was in reply to Mr Brett’s email of 8:22 pm on 25 July 2021 notifying members of protected industrial action. The reply was sent 40 minutes later at 9:02 pm and read:

I have a trailer load of broken bricks….I’m so prepared for this Thinking they will capitulate too quickly though…hope you are well mate

282    There was no evidence that Mr Brett, or anyone else at the Union, read the email and no evidence from Mr Brett as to how he viewed it. There was no evidence about whether he knew Mr Gill or knew anything about Mr Gill’s nature or behaviour at the time he received the email. However, as Mr Brett did not give evidence, it follows that an available inference is that the evidence that he could have given would not have assisted the Union’s case concerning whether, by its silence, the Union authorised Mr Gill to make the threat that he made. However, even accepting that inference, the question remains whether the email is sufficient, alone or with other matters, to establish that the Union authorised Mr Gill to engage in the threat that he made. The conduct in the email is not the same as the conduct engaged in by Mr Gill. The Ombudsman appears to submit that the email forecasts the inevitable use of violence. There is at least some doubt about what Mr Gill intended to do with the broken bricks or, read in the context of the whole email, as to the seriousness of Mr Gill’s remarks. By his intention, I mean whether he intended to use the bricks as an obstruction or weapon. By the context, I mean the tone across the whole email, including the “hope you are well mate”, detracts from the menace suggested by the Ombudsman. I am not persuaded that one unanswered email of that sort, even with the other matters above, is a sufficient basis to conclude that the Union authorised Mr Gill to make the threat that he made or as the Ombudsman also alleges to do whatever he saw fit.

283    As to the fourth, I am not satisfied that any alleged failure by the Union to prevent abusive, intimidatory or threatening conduct, coupled with Mr Gill’s subsequent engagement in that conduct, is sufficient to establish authorisation by the Union for Mr Gill’s conduct. Similarly, as to the sixth, I am not satisfied that an alleged failure to take steps to investigate Mr Gill’s conduct demonstrates authorisation to engage in that conduct.

284    As to the fifth, I do not see how attendance at a bargaining meeting that occurred after the events of 24 August 2021, in which Mr Gill “appeared on the screen” and was subsequently asked to leave the meeting by a representative of Qube, is in any way a sufficient basis to conclude that Mr Gill was authorised by the Union to engage in the Gill 24 August 2021 Action.

285    Insofar as these matters are relied on to cumulatively establish that the Union authorised the Gill 24 August 2021 action, I am also not satisfied.

Union’s derivative liability under s 362

286    The Ombudsman submits that the Union is derivatively liable for advising, encouraging or inciting Mr Gill into his conduct pursuant to s 362 of the Act. The Ombudsman says the Union advised, encouraged or incited Mr Gill for the reason of negating the choice of Mr Copperthwaite, Mr Coelho and/or Qube as pleaded in “Part F” of the Amended Statement of Claim. “Part F” sets out the contraventions of ss 343, 346 and 348 of the Act the Ombudsman alleges arise from the 24 August 2021 Actions.

287    The Ombudsman does not plead how the Union advised, encouraged or incited Mr Gill. She refers to an “Inciting Purpose”. She says that this Inciting Purpose is to be inferred from the matters in Parts B and D of the Amended Statement of Claim. Those Parts describe the industrial dispute that led to the proceeding and the 24 August 2021 Actions.

288    Section 362 of the Act provides:

(1)    If:

(a)    for a particular reason (the first person’s reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and

(b)    the action, if taken by the second person for the first person’s reason, would contravene a provision of this Part;

the first person is taken to have contravened the provision.

(2)    Subsection (1) does not limit section 550.

289    The Ombudsman submits that the Union also has “derivative liability by the operation of s 362 of the FW Act because it advised, encouraged and/or incited Gill to engage in the conduct of 24 August 2021”.

290    The Union submits that the “FWO adduced no evidence that any officer, employee or agent of the [Union] engaged in conduct that involved inciting, advising or encouraging Gill to engage in the conduct detailed at ASOC [70(a) or (b)]”.

291    I agree that there is no evidence that any officer, employee or agent of the Union incited, advised or encouraged Mr Gill to engage in the conduct detailed at [70(a) or (b)] of the Amended Statement of Claim. The Ombudsman did not rely on the “broken bricks” email in support of this claim. Even if the Ombudsman did, it is not enough to establish that the Union incited, advised or encouraged Mr Gill to take the action alleged.

Union’s derivative liability pursuant to s 550

292    The Ombudsman alleges that, by operation of s 550 of the Act, the Union is involved in the contraventions by Mr Gill of ss 343, 348 and 346. Her allegation repeats the structure and content of s 550, namely that the Union:

(1)    aided, abetted, counselled or procured the contraventions;

(2)    induced the contraventions;

(3)    was, by act or omission, directly or indirectly, knowingly concerned in or party to the contraventions; and/or

(4)    conspired with Mr Gill and/or others to effect the contraventions.

293    That allegation is particularised as being inferred from the facts and matters at Parts B and D of the Amended Statement of Claim. As noted above, those Parts describe the industrial dispute that led to the proceeding and the 24 August 2021 Actions. The Ombudsman’s written submissions did not maintain (d), that the Union conspired with Mr Gill and/or others to effect the contraventions.

294    Dealing first with (a), a person “aids and abets” a contravention of another if the person was present at the contravention and took some part in it, whereas the words “counsel and procure” refer to the person who, although not present at the contravention, encouraged its commission: Huddy at [444] (White J) citing Giorgianni v The Queen (1985) 156 CLR 473 at 480 (Gibbs CJ); and Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd (No 2) [2005] NSWSC 267 at [115] (Palmer J). There was no direct evidence that the Union, through its officers, agents or employees, was present and took some part in Mr Gill’s contraventions. Likewise, there was no evidence that an officer, agent or employee of the Union, although not present, encouraged Mr Gill’s conduct. The Ombudsman submits those matters are supported by inferences from Parts B and D of the Amended Statement of Claim. She does not explain how that is so other than asserting it in the Amended Statement of Claim and her closing submissions. I am not satisfied such an inference arises.

295    Dealing then with (b). The Macquarie Dictionary (9th ed, 2025) defines “induce” as “to lead or move by persuasion or influence, as to some action, state of mind etc: to induce a person to go”. This definition was relied on by the Full Court in BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430; 102 FCR 97 at [62] (Black CJ, Beaumont and Ryan JJ) in the context of s 298M of the Workplace Relations Act 1996 (Cth). There was no evidence of any person (whether an officer, employee or agent of the Union or otherwise) that moved Mr Gill by persuasion or influence to engage in the Gill 24 August 2021 Action. I am not satisfied that such an inference arises.

296    As to (c), to be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Huddy at [445] and the cases there cited. There is no evidence implicating or involving any such person (whether an officer, employee or agent of the Union or otherwise) in Mr Gill’s contraventions.

297    I should add that authority establishes, and the Ombudsman accepts, that the reverse onus provisions set out at s 361 of the Act do not apply to claims against accessories under s 550: Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; 248 FCR 18 at [448] (Jessup, Rangiah and White JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [59] (Greenwood, Flick and Rangiah JJ). Section 361 is directed at the primary contravener’s reason for acting. Section 550 is directed at the accessory’s conduct and knowledge of the essential elements constituting the relevant contraventions: see, e.g. Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740 at [10]-[13] (Flick J) and the authorities there cited.

298    Insofar as the Ombudsman was able to establish accessorial liability, which I am not satisfied she has, she would be required to establish that the Union had knowledge of the essential elements constituting the contraventions by Mr Gill of ss 343, 348 and 346.

Vicarious liability at common law and Schokman

299    As the Ombudsman alleges that the Union “took” or “organised” all of the 24 August 2021 Actions, including the Gill 24 August 2021 Action, the Ombudsman further alleges that the Union should be primarily liable for Mr Gill’s conduct.

300    Care must be taken when using the phrase “common law vicarious liability”. As Charlesworth J said in Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797; 252 FCR 393 at [70]:

The rights and "liabilities" at issue in the present case are purely statutory. Where it is said that a "common law" doctrine applies, care must be taken to identify the particular body of law relied upon.

301    The Ombudsman submits that s 793 does not operate to exclude common law vicarious liability. This is correct: see Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188; 100 FCR 530 at [61]-[62] (Ryan, Moore and Goldberg JJ). The Ombudsman then says that Edelman and Steward JJ in CCIG Investments Pty Ltd v Schokman [2023] HCA 21; 287 CLR 165 describe three areas of law which have been “described” as “vicarious liability” and that each of them operate in the present case to visit liability on the Union.

302    Importantly, Edelman and Steward JJ explain that the first and third areas are not “vicarious liability” in the true sense. Their Honours explain that the first area is based on “‘vicarious acts’ or ‘vicarious conduct’, rather than vicarious liability”: Schokman at [50]. They also explain the third area is actually a “non-delegable duty” that is “commonly, but unfortunately, described by invoking the language of ‘vicarious liability’”: see [71]. The three areas are provided as a taxonomy rather than positive definitions of three areas of “vicarious” liability.

303    Dealing with the “areas” in turn. The “first area of law generally involves cases where one person is, in broad terms, an agent for another. It is a primary liability: the acts of another are attributed to the defendant on the basis that they were part of a joint enterprise, or procured, authorised or ratified by the defendant”: Schokman [50]. It is said by their Honours to apply “to all principals, whether an employer or not, for whom the acts are done with their authority”. For the reasons explained above, in dealing with agency (under ss 363 and 793), I do not accept that the conduct of Mr Gill was done with the authority of the Union.

304    The second area “also described as ‘vicarious liability’, involves cases where ‘vicarious liability’ is used in its true, or proper, sense of liability based on the attribution of the liability of another”: Schokman at [51]. Their Honours continued:

Rather than attributing to one person the authorised acts of another, it attributed to an employer the liability of an employee, based on the wrongful acts of the employee, whether or not those acts were authorised in the broad sense described above. But the employee's wrongful acts had to be sufficiently or closely connected to the employee's duties or powers of employment so that they could be said to have been performed in the "course of their employment". This Court has not extended vicarious liability in this sense beyond employees.

305    By her communication to the Court dated 13 December 2024 (and after the hearing in this matter), the Ombudsman says that she no longer relies upon the second area in light of the High Court’s observations in Bird at [45]-[48]. That is, there is no vicarious liability (in the strict sense described in the second area) for parties outside of an employment context.

306    The third area, their Honours explained, although commonly given the label of “vicarious liability”, cannot be properly explained as a case involving the first or second areas of law in which the term “vicarious liability” is used. It is more appropriately described in the same terms as “non-delegable duties”. At [73], their Honours explained the area by reference to Lord Denning MR in Morris v C W Martin & Sons Ltd [1966] 1 QB 716 at 728. The duty is:

[W]hen a principal has in [their] charge the goods or belongings of another in such circumstances that [they are] under a duty to take all reasonable precautions to protect them from theft or depredation then if [they entrust] that duty to [an employee] or agent, [the principal] is answerable for the manner in which that [employee] or agent carries out [their] duty. If the [employee] or agent is careless so that they are stolen by a stranger, the [employer] is liable. So also if the [employee] or agent [themself] steals them or makes away with them.

307    The Ombudsman does not explain, and it is not clear, that this duty has application in the present case. I do not accept the submission that this duty operates in the circumstances of this case.

Alleged direct liability of the Union

308    The Ombudsman alleges, in respect of each of ss 343, 348 and 346, that the Union is liable because “as a matter of statutory construction, where the [Union] organised the picket, it should be held to have directly contravened ss 343, 348 and 346 where it has taken no steps to ensure that abusive, intimidatory and threatening conduct did not occur on the picket” (original emphasis).

309    That was consistent with the Ombudsman’s oral opening in which she submitted that: “the conduct from 24 August is organised or taken by the Union. Our primary case is a direct liability case that the Union set up the picket … that conduct becomes – they own that conduct, it becomes their own conduct”.

310    I sought from the Ombudsman authority for that proposition. The Ombudsman submitted that there was “no direct authority”. I am not aware of any. However, the Ombudsman relied on the three “areas” outlined in Schokman. For the reasons explained above, those areas do not assist the Ombudsman.

311    Dealing more broadly with direct liability or primary liability, in Hanley at [64], the Full Court (Ryan, Moore and Goldberg JJ) said:

For the union to be directly liable under common law principles, it is necessary to show that Dowling was, as a matter of law, acting not merely as a servant, representative, agent or delegate of the union, but rather as the "directing mind and will" of the union when he engaged in the conduct that contravened s 170NC(1): Tesco Supermarkets Ltd v Nattrass at 170 per Lord Reid, approved by the High Court in Hamilton v Whitehead at 127 and Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 514-515; 118 ALR 392.

312    In Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178, 320 IR 249 at [626], Walton J said:

Like a corporation, a union must act through its officers, employees and members by giving a natural person authority to act on its behalf. The corollary is that the union can be liable in law for conduct that it authorises, directs, ratifies or takes the benefit of.

313    Justice Edelman in Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 at [97]-[98] (with whom Allsop CJ generally agreed at [62]-[63]) said the "directing mind and will" rule of attribution was rejected as a universal rule in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500; 3 NZLR 7 at 506.

314    In Meridian, Lord Hoffmann (delivering the judgment of the Privy Council) concluded that the determination of the applicable rule of attribution to apply in a given legal setting is a matter of construction of the relevant substantive law being applied (at 507). The question of construction is whether the substantive law requires that the knowledge that an act has been done, or the state of mind with which it was done, should be attributed to the company (at 511).

315    At 506, Lord Hoffman found that the company's primary rules of attribution are generally found in those provisions of its constitution (if any) which indicate how decisions of the company are to be made. Those primary rules are supplemented by other rules or principles implied by company law which state when a company is to be bound by the acts or decisions of others. The primary rules of a registered organisation, such as the Union, are ordinarily its rules.

316    Dealing with the conduct of Mr Gill, the Ombudsman does not allege that Mr Gill was the "directing mind and will" of the Union at the time he engaged in the 24 August 2021 Actions.

317    Applying Meridian, there is no allegation that Mr Gill was acting in an official capacity as the Union under its rules. In applying the substantive law in question, I consider that the Act prescribes various modes of liability for involvement in, or in relation to, contraventions of the Act, such as ss 363, 550 or 793. In these circumstances where I have found that the Union does not satisfy those modes of liability, nor does it satisfy general principles of agency or vicarious liability, I do not accept the Union could be held directly liable for contravening ss 343, 348 and 346. Furthermore, Mr Gill was not acting as the Union when he took the Gill 24 August 2021 Action. There is no allegation that he was acting as the Union under its rules. He is not an officer of the Union and he was not performing any function of the Union. In these circumstances, the Union is not directly liable for the Gill 24 August 2021 Action.

ALLEGATIONS AND FINDINGS – (NON-GILL) 24 AUGUST 2021 ACTION

Factual allegations regarding other events on 24 August 2021

318    The allegations discussed below pertain to words spoken by an unknown picketer or “the Picketers”. The “Picketers” is defined at [33] of the Amended Statement of Claim to mean “various people (both known and unknown to the Applicant) [who] were present at and around the gates to the Qube Fremantle operations at Fremantle Harbour, including Gate 6.2 at the Kwinana Bulk Jetty”. It is not specified in the Amended Statement of Claim whether I am to understand “Picketers” in the sense that all picketers said the impugned words, or that some of the picketers said those words. I have approached the allegations pertaining to “Picketers” to mean some picketers.

319    The allegations pertaining to the actions of the picketers (other than Mr Gill) on 24 August 2021 are as follows.

320    First, the picket involved picketers “yelling derogatory epithets including ‘scab’ and ‘dog’ and making barking noises (so as to imitate a canine)”.

321    Second, upon Mr Coelho’s arrival at the Gate at around 5:45 am of the Kwinana Bulk Jetty, the picketers began shouting insults at Mr Coelho. This included calling Mr Coelho a “scab” and a “dog”.

322    Third, upon Mr Copperthwaite’s arrival at the Gate, the picketers, including Mr Gill, made barking sound and yelled the words “scab”, “dog” and “I know where you live” in Mr Copperthwaite and Mr Coelho’s directions.

323    Fourth, an unknown picketer then whispered to Mr Copperthwaite: “I’ll kill ya”.

324    Fifth, other picketers said to Mr Copperthwaite: “you’ll end up being killed”.

325    Sixth, the picketers then immediately began repeatedly chanting: “MUA, HERE TO STAY”.

326    Seventh, another unknown picketer said to Mr Copperthwaite: “while you’re doing this you should think about Charmaine and the kids”. Charmine is the name of Mr Copperthwaite’s wife. Charmaine and Mr Copperthwaite have children.

327    Eighth, another unknown picketer said to Mr Copperthwaite: “I’m going to make it hard for you if you keep doing this”.

328    Ninth, Mr Coelho said to the crowd “Leave [Mr Copperthwaite] alone, he hasn’t done anything wrong, he is just trying to escort me in”. After this statement, the picketers started shouting at Mr Coelho saying: “you dog”, “you scab”, “I am coming to get you” and “you will suffer for life like the rest of the scabs”.

329    Tenth, another unknown picketer said to Mr Coelho: “you should have become an MUA member and joined the picket line”. Mr Coelho responded saying: “I’ll support you guys if you support my family, because I will be on strike with no income”. Another unknown picketer then said: “go in my doghouse” and/or “Oh you can sleep with my dog” which prompted an argument between Mr Coelho and the picketers.

330    Eleventh, after the Gate was opened and Mr Coelho and Mr Copperthwaite were able to enter the Gate, another unknown picketer made a hand gesture to the effect of a shooting gun which he aimed at Mr Coelho and then at Mr Copperthwaite and also silently mouthed words to the effect of “Bang! You’re dead”. This gesture conveyed that Mr Coelho and Mr Copperthwaite risked being physically harmed or killed (or their families risked being harmed or killed) unless they complied with the Union’s wishes.

Factual findings about other events on 24 August 2021

331    The evidence relied upon by the Ombudsman for these events largely came from Mr Copperthwaite and Mr Coelho. That evidence was constituted by their oral evidence given at the hearing, supplemented and supported by documentary evidence.

Identity, arrival and gathering

332    Before dealing with each of the allegations within the (non-Gill) 24 August 2021 Action, I address the facts and circumstances leading up to those allegations.

333    Paragraphs [65]-[66] of the Amended Statement of Claim provide:

65. At around 5:45 am on 24 August 2021, the Picket was composed of around 30 Picketers outside Gate 6.2 (the 24 August 2021 Picket), including:

(a) Gill;

(b) at least one Picketer wearing a dark grey hoodie (and/or dark glasses) dark balaclava and thereby obscuring his identity;

(c) other Qube Ports employees, the identities of whom the Applicant does not yet know;

(d) Pivotal Personnel employees, the identities of whom the Applicant does not yet know; and

(e) others, the identities of whom the Applicant does not yet know.

66. The 24 August 2021 Picket involved Picketers:

(a) gathering in close proximity to Gate 6.2;

(b) who arrived at the Picket in cars adorned in CFMEU stickers (including MUA stickers);

(c) wearing CFMEU-branded clothing (including MUA-branded clothing);

(d) brandishing CFMEU flags (including MUA flags);

(e) chanting CFMEU-related chants, including “MUA, here to stay!”; and

(f) yelling derogatory epithets including “scab” and “dog”, and making barking noises (so as to imitate a canine).

334    The Ombudsman relied on the video evidence to establish the total number of picketers present on 24 August 2021. The Ombudsman identified from the video three separate groups of arrivals of picketers:

(1)    Five by foot between, 5:26:30 am and 5:27:49 am;

(2)    Nine (3 by two cars and 6 by foot) between 5:29:56 am and 5:34:01 am; and

(3)    Eight by foot between 5:35:36 am and 5:47:29 am.

335    On the Ombudsman’s own submissions, the arrivals total 22 (and not 30 as pleaded). The Union, without responding specifically to the arrivals, submits that the video evidence shows “12-15 persons present”.

336    After 5:48:00 am in the video evidence it is difficult to determine the total number present; at least some of the relevant area is in darkness. Mr Copperthwaite’s oral evidence was that there was “roughly 30 people”. His statement to Inspector Tonev included that he saw “about 30 persons”; his further amended outline of evidence identified “approximately 30 picketers”. Noting that Mr Copperthwaite’s evidence is an estimate, I am not satisfied that there were 30 picketers. I accept the Ombudsman’s submission that the video evidence demonstrates that 22 people arrived at the picket between 5:25 am and 5:48 am on 24 August 2021; of those only three can be seen arriving by vehicle. I also accept that there was a gathering of picketers close to the Gate as pleaded.

337    Mr Coelho’s statement to Inspector Tonev included that he recognised five of the picketers as employees of Qube and another five as employees of Pivotal. He said that he did not know their names. Mr Copperthwaite’s further amended outline of evidence stated that he knew some of them were Qube employees as he recognised them as people he had worked with previously, but that he did not know their names. The Union submits that no oral evidence was given about the employment of the picketers and that Mr Copperthwaite said (in oral evidence) that he did not recognise any of the people “at that immediate time” (when he exited the Gate to assist Mr Coelho). It is not clear whether by “recognise” Mr Copperthwaite intended to convey that he was unable to name the picketers or whether he did not know them at all. On balance, I accept that some of the picketers were employed by Qube and some by Pivotal.

338    There was no dispute that the picketers, save Mr Gill, were not individually identified. That is, there was no evidence individually identifying the picketers by name, by their employer and whether they were a member of the Union (save what is said about stickers, clothing and flags). There was no dispute that there were “others [picketers], the identities of whom the Applicant does not yet know”.

Union stickers, clothing and flags

339    As to the arrival of the picketers in “cars adorned in Union stickers (including MUA stickers)”, the only evidence was:

(1)    The evidence of Mr Coelho that:

The cars lined up against the side of the road there had sometimes on their aerial flag, little flags, your Honour, saying MUA, and union, stickers on them.

…

On driving into the gate, up towards the gate, I noticed cars on the side of the road parked, which had MUA union stickers, and as I got closer I noticed people wearing MUA caps, jackets, jumpers with union on them, and flags, obviously they held flags.

(2)    The evidence of Mr Copperthwaite, in his further amended outline of evidence, that:

He also saw three or four MUA flags and MUA stickers on three vehicles which were parked to the side of the access gate area.

(3)    The evidence of Inspector Tonev’s note of his discussion with Mr Copperthwaite that:

I [Mr Copperthwaite] could see … MUA stickers on 3 vehicles parked off to the side of the access gate area.

340    The video evidence shows that at the time of Mr Copperthwaite’s arrival at the Gate there were two cars parked to the left of the Gate entrance. They are the vehicles (referred to above) that arrived between 5:29:56 am and 5:34:01 am. Those vehicles are faced towards the Gate. It is difficult, but not impossible, to see how Mr Copperthwaite witnessed MUA stickers on those vehicles, given their placement, direction and distance from him. However, he was not cross-examined on that topic.

341    There was no evidence separately identifying cars with “CFMEU stickers”. Further, Mr Coelho and Mr Copperthwaite did not give evidence that the only vehicles that they saw were those with CFMEU or MUA stickers. The video evidence (referred to above) shows only three picketers arrive by vehicle. There was otherwise no evidence detailing which picketers had arrived in which vehicles, including how many picketers had arrived in cars identified as having MUA stickers.

342    The Union submits there was no evidence from Mr Copperthwaite about how picketers arrived and no evidence about CFMEU or MUA stickers on cars. I accept that Mr Copperthwaite did not give evidence about how picketers arrived, however there was evidence that he witnessed cars parked by the access Gate with MUA stickers. That, combined with the video footage and Mr Coelho’s evidence, enables me to conclude that, on the balance of probabilities, only three out of 22 picketers arrived by a vehicle with an MUA sticker.

343    The pleading that the picketers were “wearing CFMEU-branded clothing (including MUA-branded clothing)” was supported by evidence from:

(1)    Mr Coelho that he “noticed people wearing MUA caps, jackets, jumpers with union on them”; and

(2)    Mr Copperthwaite that people were “wearing black. A few people had MUA beanies and hoodies on”.

344    The evidence did not identify with any specificity how many people were wearing CFMEU (and/or MUA) clothing. I accept that there were some wearing such clothing but the evidence does not establish that all, or even most, did.

345    The evidence of brandishing flags was again supported by Mr Coelho and Mr Copperthwaite. Mr Coelho said that as he got closer he noticed: flags, obviously they held flags”. Mr Copperthwaite said: “there was MUA flags”, and (by his further amended outline of evidence): “he also saw three to four MUA flags”. The video evidence does not show anyone holding or “brandishing” a flag, although as I say above there are parts of the gathering that are in darkness. The video evidence does not show anyone arriving with a flag. On balance, I accept that there were some flags. Again, however, the evidence does not establish that all picketers, or even most, brandished flags.

346    Mr Copperthwaite gave evidence that after his arrival at the Gate the picketers chanted: “MUA, here to stay”. Again, there was no evidence detailing particular picketers or how many picketers chanted. I accept that some of the picketers chanted in that way.

347    Mr Copperthwaite gave evidence that after his arrival at the Gate the picketers barked and yelled “scab” and “dog”. Again, there was no evidence detailing those words being used by particular picketers or how many picketers. There was no direct evidence that those words were used by Mr Gill (save what I say about his use of the dead dog statement). I accept that some of the picketers used those words (as explained further below).

Mr Coelho arrival and other events

Mr Coelho’s arrival

348    Paragraph 67 of the Amended Statement of Claim provides the following:

At around 5:45 am on 24 August 2021, Coelho (who had been assigned to provide labour to Qube Ports) arrived at the Gate by car for the purpose of attending work.

349    The Ombudsman relies upon the following evidence to establish the sequence of Mr Coelho’s arrival. First, Mr Coelho’s oral evidence that: “that morning, I arrived at the Kwinana Bulk Jetty … I previously organised with Chris to be my escort that morning”.

350    Second, Mr Coelho’s written statement made on the day which stated: “at 05:45am [Mr Coelho] arrived a (sic) Kwinana Bulk Jetty as per normal”.

351    Third, the file note of Inspector Tonev’s discussion with Mr Coelho on 28 February 2022 which provided that: “I drove to work as per normal to meet Chris Copperthwaite at the KBJ entrance gate so he could escort me in. Around 5:45am”.

352    Fourth, Mr Copperthwaite’s further amended outline of evidence which provided: “In the morning Mr Copperthwaite received a phone call from Luis Coelho … During the phone call, Mr Coelho said words to the effect of ‘I am having trouble getting through the gate. Can you let me in?’ After the phone call, Mr Copperthwaite drove down to the access gate at the KBJ to assist Mr Coelho”.

353    Any doubt or dispute about the chronology of Mr Coelho’s arrival is resolved by the video footage. The CCTV footage from camera 740 shows Mr Coelho arrive in his vehicle, and pull to the side of the road well before the Gate, at approximately 5:41:05 am. It then shows Mr Coelho pulling away from that position and heading towards the Gate at approximately 5:53:43 am, apparently after seeing Mr Copperthwaite approaching the Gate from the inside, and arriving at the Gate at 5:54:06 am.

354    The CCTV footage does not show Mr Coelho calling Mr Copperthwaite from the Gate, as described in Mr Copperthwaite’s evidence in chief. However, I accept that Mr Coelho is likely to have called Mr Copperthwaite near the Gate between approximately 5:45 am and 5:50 am.

355    There is no dispute that Mr Coelho arrived near the Gate by car at approximately 5:45 am for the purpose of attending work. However, he did not reach the Gate and was not near the picketers at the Gate until approximately 5:54 am. Between 5:41 am and 5:54 am, Mr Coelho parked well back from the Gate, away from the picketers.

356    All of that is consistent with Mr Coelho’s oral evidence in chief:

When he [Mr Copperthwaite] got to the revolving doors, that’s when I started moving closer to the entrance gates, where Chris had made his way through the revolving doors to the communications tower. Once I seen he was close to there, I met up with him.

Picketers shouting “scab” and “dog” upon Mr Coelho’s arrival – ASOC [68]

357    Paragraph 68 of the Amended Statement of Claim provides that “[u]pon his arrival at Gate 6.2, the Picketers began shouting insults at Coelho, including that he was a ‘scab’ and a ‘dog’”.

358    The evidence in chief of Mr Coelho was that, after “meeting up” with Mr Copperthwaite (as explained above), Mr Copperthwaite “proceeded (sic) to talking to the speaker” and “as he was doing that, most of the crowd, the picketers, … had made their way to [Mr Copperthwaite]”. He continued: “I would say half of them [made their way up] towards me. I was in my car with my window down, and as usual, they were just hurling abuse. ‘I’ll kill you, scab, dog. I know where you live. I know how many kids you got’”. Mr Coelho’s evidence in cross-examination was that when he arrived he was called “a dog, a scab, a wanker, low life. I was told to go back to where I come from. I was told that they know where I live … They said that, ‘I will kill you’”.

359    The handwritten statement of Mr Coelho (made 24 August 2021 at 2:10 pm) states that:

Chris and my self were at gates for some 15 min. In this time myself + young Chris were confronted by people (protestors) (unionists I’m guessing) hurling abuse, (dog, scab, pigs), threatening to kill us and terrorising myself + young Ch[r]is.

360    The Ombudsman also relies on the handwritten file note of Inspector Tonev which records Mr Coelho saying that: “while waiting for Chris they (the picketers) started shouting insults at me ‘scab’, ‘dog’ etc”.

361    The oral evidence of Mr Coelho is slightly inconsistent with the handwritten note of Inspector Tonev and the CCTV footage. As explained above, the CCTV footage shows that Mr Coelho did not wait at the Gate for Mr Copperthwaite. Mr Coelho arrived at the communications box at the Gate at the same time as Mr Copperthwaite walking through the Gate at 5:54 am.

362    Mr Gill submits that Mr Copperthwaite’s evidence about Mr Coelho calling him from the entrance Gate is demonstrably wrong. Mr Gill and the Union also submit that Mr Coelho’s evidence should not be accepted unless corroborated by other evidence.

363    I am satisfied that the allegation in [68] of the Amended Statement of Claim, “shouting … that he was a ‘scab’ and a ‘dog’”, is made out. I accept the evidence of Mr Coelho is corroborated by his note on 24 August 2021, and Inspector Tonev’s note, that the picketers said “scab” and “dog”. Although, there was no identification of any particular person who made those statements. There was no evidence about whether the particular people who made those statements were the employees of Qube or Pivotal. There was no evidence about whether the particular people who made those statements were wearing Union clothing, brandishing Union flags or had arrived in vehicles with Union stickers.

Mr Copperthwaite’s arrival and other events

364    Paragraph [69] of the Amended Statement of Claim provides that “at approximately 5:54 am on 24 August 2021, Copperthwaite approached Gate 6.2 by foot for the purpose of escorting Coelho through Gate 6.2”.

365    The Ombudsman relies upon the following evidence to establish the sequence of Mr Copperthwaite’s arrival. First, the oral evidence of Mr Copperthwaite where he said that he arrived at work “half an hour before shift would start, so 05.30”. Second, Mr Copperthwaite’s further amended outline of evidence at [8]-[9] which states that:

In the morning Mr Copperthwaite received a phone call from Luis Coelho, a labour hire worker. During the phone call, Mr Coelho said words to the effect of “I am having trouble getting through the gate. Can you let me in?”.

After the phone call, Mr Copperthwaite drove down to the access gate at the KBJ to assist Mr Coelho. When Mr Copperthwaite arrived at the access gate [from inside the Jetty], he got out of his car and walked to the communications box and pressed the button to speak with the Fremantle Port Authority security. The security guard said words to the effect of “I can't find his name on the escort list. We'll check back in a minute”.

366    Third, Mr Copperthwaite gave oral evidence that Mr Coelho: “got to the comms box. He wasn’t able to get through, so then he called [Mr Copperthwaite] to assist him”.

367    The CCTV footage shows Mr Copperthwaite approach the Gate by foot at approximately 5:54 am. The CCTV footage does not support the evidence that Mr Coelho arrived at the Gate, spoke to the communications box, had trouble getting through and then called Mr Copperthwaite to assist. There is no video footage of Mr Coelho communicating through the Communications box at the entrance to the Gate. Mr Coelho did not approach the Gate until Mr Copperthwaite had walked through the Gate at 5:54 am. As explained above, Mr Coelho had pulled over to the side of the road well before the Gate at approximately 5:41 am.

368    I find the events as portrayed in the CCTV footage. That conclusion does not, in any significant way, undermine the evidence of Mr Copperthwaite. Whilst it is not consistent with his account, his account was based on an understanding, rather than an observation of what was occurring at Mr Coelho’s end of the events.

Picketers shout “scab” and “dog” and “I know where you live” upon Mr Copperthwaites’s arrival – ASOC [70(a)]

369    Paragraph 70(a) of the Amended Statement of Claim provides that: “upon Copperthwaite’s arrival at Gate 6.2 the picketers (including Gill) made barking sounds and yelled the words: ‘scab’, ‘dog’ and ‘I know where you live’ in Copperthwaite and Coelho’s direction”. Mr Gill’s conduct in respect of [70(a)] is dealt with separately above. What follows is directed at the conduct of picketers other than Mr Gill.

370    The Ombudsman relies on similar oral evidence to the allegations regarding [68] of the Amended Statement of Claim above. First, the Ombudsman relies on the same oral evidence that when Mr Copperthwaite “made his way through the revolving doors to the communications tower”, Mr Coelho “met up with him” meaning that he drove his car up to the Gate. Then, Mr Coelho stated that Mr Copperthwaite “proceeded … talking to the speaker” and as he was doing that the picketers had made their way to Mr Copperthwaite and Mr Coelho. Mr Coelho stated that “most of the crowd … had made their way to him, to Chris Copperthwaite and I would say half of them towards [Coelho]”. Mr Coelho stated that “as usual they were just hurling abuse. ‘I’ll kill you, scab, dog. I know where you live. I know how many kids you got’”.

371    She also relies on the oral evidence that when Mr Coelho arrived, he was called: “a dog, a scab, a wanker, low life. I was told to go back to where I come from. I was told that they know where I live … They would use the same lyrics over and over every day. They said that ‘I will kill you’”.

372    Mr Coelho also gave evidence that as Mr Copperthwaite was talking in the communications box, the picketers were saying to Mr Coelho: “I know where you live. I’m coming to kill you. I’m coming to get you. You owe me money”.

373    The Ombudsman relies on the oral evidence of Mr Copperthwaite that as he was walking through the Gate the picketers “started barking, yelling out ‘you’re a dog’”.

374    As discussed above, the handwritten statement of Mr Coelho (made 24 August 2021 at 2:10 pm) states that:

Chris and myself were at gates for some 15 min. In this time myself + young Chris were confronted by people (protestors) (unionists I’m guessing) hurling abuse, (dog, scab, pigs), threatening to kill us and terrorising myself + young Ch[r]is.

375    The Ombudsman also relies on the further amended outline of evidence of Mr Copperthwaite which provides: “the picketers started barking like a dog at Mr Copperthwaite as he approached and entered the gate. The picketers started yelling and calling him names such as ‘scab’ and ‘dog’”.

376    The Ombudsman also relies on the handwritten statements of Inspector Tonev that recorded conversations with Mr Copperthwaite and Mr Coelho. The file note of the conversation with Mr Copperthwaite provided that as Mr Copperthwaite approached the Gate, the picketers “started yelling scab, dog”. The file note of the conversation with Mr Coelho recorded that as Mr Copperthwaite got through the Gates, “the crowd surround (sic) Chris and started yelling abuse at him ‘scab’ ‘Dog’ ‘I know where you live”’.

377    It is not in dispute that the identity of the people who are alleged to have made these remarks is unknown. The respondents did not challenge this evidence except to say the evidence of Mr Coelho and Mr Copperthwaite should not be accepted.

378    The allegation pertaining to the use of words “scab” and “dog” at [70(a)] of the Amended Statement of Claim are consistent with the oral evidence of both Mr Coelho and Mr Copperthwaite. The allegation is consistent with the statement made by Mr Coelho on 24 August 2021. It is consistent with the file notes of conversations between Inspector Tonev and both Mr Coelho and Mr Copperthwaite. It is consistent with the statement made by Mr Coelho on 24 August 2021. The respondents did not cross-examine to suggest that those words were not said. I accept that the words “scab” and “dog” were used by unknown persons at the picket on the morning of 24 August 2021 and that those words were directed towards Mr Coelho and Mr Copperthwaite.

379    The allegation at [70(a)] also includes the allegation that upon Mr Copperthwaite’s arrival at the Gate, the picketers yelled the words: “I know where you live”. That allegation is consistent with the oral evidence of Mr Coelho. It is consistent with the file note of conversation between Inspector Tonev and Mr Coelho. The respondents did not challenge this evidence except to say the evidence of Mr Coelho and Mr Copperthwaite should not be accepted. The respondents did not cross-examine to suggest that those words were not said. I accept that the words “I know where you live” were used by unknown persons at the picket on the morning of 24 August 2021 and that those words were directed towards Mr Coelho and Mr Copperthwaite.

A picketer whispers to Mr Copperthwaite “I’ll kill ya” and other picketers say to him “you’ll end up being killed” – ASOC [70(d)]

380    Paragraph [70(d)] of the Amended Statement of Claim provides that upon Mr Copperthwaite’s arrival at the Gate, another picketer whispered to Mr Copperthwaite: “I’ll kill ya”, and other picketers said: “you’ll end up being killed”. It is not in dispute that the identity of the people who are alleged to have made these remarks is unknown.

381    To prove these allegations, the Ombudsman relies on the oral evidence of Mr Coelho where he said that while Mr Copperthwaite was trying to arrange for him, Mr Coelho, to enter the Jetty at the communications box, he could hear the picketers saying: “I will kill you, I’m coming to get your kids”.

382    The Ombudsman relies on Mr Copperthwaite’s oral evidence in which he said that he remembered “a voice from behind [him] saying that I will kill you”. This was described as separate and distinct from the allegation that Mr Gill said: “You’ll end up dead dog if you keep going like this”.

383    The Ombudsman further relies on the further amended outline of evidence of Mr Copperthwaite which provides that: “Mr Copperthwaite also heard other picketers say to him words to the effect of ‘you’ll end up being killed’” and that one picketer whispered to him: “I’ll kill ya”. She also relies on Mr Copperthwaite’s handwritten note from 24 August 2021 which states that: “one whispered ‘I’ll kill ya’” and “they” told Mr Copperthwaite that “if [he] continued doing what [he] was doing that ‘[he] would end up being killed’”. She further relies on the police incident report which refers to “vague suggestive threatening remarks” being made against Mr Copperthwaite by Qube employees and that words indicated that “he would be killed and another shouted ‘I’ll kill ya’”.

384    The allegation pleaded at [70(d)] must be treated as two separate allegations. First, the picketer (singular) whispering “I’ll kill ya”. Second, other picketers (plural) saying “you’ll end up being killed”. As to the first, the allegation is consistent with Mr Copperthwaite’s oral evidence and his amended outline of evidence (which, as explained, was tendered into evidence). It is consistent with Mr Copperthwaite’s note made 24 August 2021. The challenge to Mr Copperthwaite’s evidence was as to its broad reliability and as to the potential overlap or inconsistency in his record of the threats made to him. This is discussed at [14]-[18] and [82]-[130]. I am not satisfied that challenge undermines Mr Copperthwaite’s evidence about the words “I’ll kill ya” being said to him by a picketer. I accept that those first words were used by an unknown person at the picket on the morning of 24 August 2021 and that those words were directed towards Mr Copperthwaite.

385    As to the second part of the allegation, Mr Copperthwaite was taken through his amended outline of evidence in cross examination, and asked whether he saw in the outline an allegation that “other picketers sa[id] words in effect of, ‘you will end up being killed’”, to which Mr Copperthwaite responded “Yes”. This part of the allegation is consistent with Mr Copperthwaite’s further amended outline of evidence where it records: “Mr Copperthwaite also heard other picketers say to him words to the effect of ‘you’ll end up being killed’”. It is also consistent with Mr Copperthwaite’s handwritten note from 24 August 2021 which states that “they” told Mr Copperthwaite that “[he] would end up being killed’”.

386    Whilst it is largely consistent with the oral evidence of Mr Copperthwaite that Mr Coelho could hear the picketers saying “I will kill you”, that evidence is inconsistent with Mr Coelho’s other evidence that: “I couldn’t exactly hear what [the picketers] were saying to Chris”. Although that evidence appears to have been directed to the point after which Mr Coelho had endeavoured to “get the attention off Chris”. He says that after that point “they come back to me … [and] … a few of them stayed with Chris, and I couldn’t exactly hear what they were saying to Chris”. I understand the allegations at [70(a)-(p)] to be in chronological order and that the allegation of picketers saying: “I will kill you” precedes Mr Coelho’s efforts to “get the attention off Chris” and should be understood to occur at a time when Mr Coelho could hear what was being said to Mr Copperthwaite.

387    As to Mr Copperthwaite’s evidence, the question is what is covered or intended by Mr Copperthwaite’s reference to “would end up being killed” (in his 24 August 2021 note, amended outline, and as alleged in [70(d)]). Namely, is it a reference to Mr Gill’s threat together with another threat of a similar nature said by picketers on the day? For the reasons explained above, I consider it to be at least a reference to Mr Gill’s threat. If it is intended to be a reference to further threats made by other picketers, I am not satisfied to the necessary standard that it was said. It is significant that Mr Copperthwaite did not give oral evidence about these words being discretely used (save what is explained above about it including the threat by Mr Gill) by other picketers. He also did not communicate to Inspector Tonev that these words were discretely used (again save his reference to the threat by Mr Gill) by other picketers. Those matters persuade me that I cannot be satisfied that those second words were separately used by some or any of the picketers.

Picketers chant “MUA, HERE TO STAY!” – ASOC [70(e)]

388    After the above remarks, the Ombudsman alleges that the picketers repeatedly chanted: “MUA here to stay.”

389    The Ombudsman relies on Mr Copperthwaite’s oral evidence where he said that as he was approaching the Gate after being called a scab and a dog, the picketers “started their chants, ‘MUA, here to stay’”. The Ombudsman relies on Mr Copperthwaite’s oral evidence that after he entered the Gate the picketers were chanting: “MUA, here to stay”. Mr Copperthwaite also gave oral evidence that after he re-entered the Gate after Mr Coelho was allowed into the Gate the picketers “were still doing their usual – their yelling of, ‘The MUA, here to stay’”. Mr Copperthwaite’s further amended outline says that on 24 August 2021, the picketers chanted: “MUA, here to stay”. The file note of Inspector Tonev also provides that the picketers chanted: “MUA, here to stay”.

390    There is no direct challenge from the respondents that the picketers chanted: “MUA, here to stay”. I find those words were used. Again, it is not possible to say whom of the picketers used those words.

A picketer says to Copperthwaite “while you’re doing this you should think about Charmaine and the kids” – ASOC [70(f)-(g), (h)]

391    Paragraph [70(f)-(g) and (h)] of the Amended Statement of Claim provides:

Upon Copperthwaite’s arrival at Gate 6.2:

(f) immediately thereafter, while Copperthwaite was close to the Picketers, another Picketer (the identity of whom is not yet known to the Applicant) said to Copperthwaite: “while you’re doing this you should think about Charmaine and the kids”;

(g) Copperthwaite has (and had at the time) a spouse named Charmaine and together they have (and had at the time) children;

…

(h) by “Charmaine and the kids”, the Picketer intended to convey and did convey Copperthwaite’s spouse and the children they have together;

392    There is no dispute that Mr Copperthwaite’s partners name was Charmaine and they have children.

393    The Ombudsman relies on Mr Copperthwaite’s oral evidence that he heard a picketer say to him: “you should think about your – Charmaine and the kids – Charmaine being my partner”. The Ombudsman also relies on Mr Copperthwaite’s further amended outline which provides: “one of the picketers said words to the effect of ‘while you’re doing this you should be thinking about Charmaine and the kids’”. The file note of Inspector Tonev also records Mr Copperthwaite saying: “someone I couldn’t identify said ‘While you’re doing this you should think about Charmaine and the kids’”. Mr Copperthwaite’s handwritten note from 24 August 2021 provides “as I went to walk back through the gate someone mentioned Charmaine and my kids”. All of those records are consistent in their description of these words having been said at the picket on the morning of 24 August 2021.

394    The words are also consistent with the conduct engaged in by Mr Copperthwaite and Qube immediately following the events on 24 August 2021. Namely, the provision of a hire car for Mr Copperthwaite’s wife and the provision of security at Mr Copperthwaite’s house. Those matters are detailed at paragraphs [128]-[130] above.

395    The respondents did not directly challenge this evidence other than to say that the evidence of Mr Copperthwaite should not be accepted.

396    These allegations are serious. Like the other allegations in this part of the Amended Statement of Claim, they “are not findings to be lightly made”: see Hall at [20]. I have had regard to s 140 of the Evidence Act. I am satisfied on the balance of probabilities that these words were said by an unknown picketer on the morning of 24 August 2021.

A picketer says to Mr Copperthwaite “I’m going to make it hard for you if you keep doing this” – ASOC [70(gg)]

397    Paragraph [70(gg)] of the Amended Statement of Claim provides:

(gg) “at some point, a picketer said to Copperthwaite, ‘I’m going to make it hard for you if you keep doing this’”;

398    The Ombudsman relies on the file note of Inspector Tonev of his conversation with Mr Coelho which provides that after Mr Copperthwaite was standing at the communications box: “the crowd surround (sic) Chris and started yelling abuse at him … ‘I’m going to make it hard for you if you keep doing this’”. That evidence must be read together with Mr Coelho’s oral evidence that: “I couldn’t exactly hear what [the picketers] were saying to Chris”. Although, for the reasons explained above, this allegation appears to precede that point at which Mr Coelho says he could not hear what was being said to Mr Copperthwaite.

399    In any event, this statement is not recorded in the note of Inspector Tonev’s interview with Mr Copperthwaite. It is not recorded in any of Mr Copperthwaite other records of the events. It is not recorded in his note of 24 August 2021, the police report, or his amended outline of evidence. Mr Copperthwaite did not give any oral evidence of this statement having been made to him.

400    Given the lack of any evidence from Mr Copperthwaite about this allegation, I am not satisfied on the balance of probabilities that these words were said to Mr Copperthwaite on 24 August 2021.

Picketers then shout at Mr Coelho “you dog”, “you scab”, “I am coming to get you” – ASOC [70(i)-(j)]

401    Paragraph [70(i)and (j)] of the Amended Statement of Claim provides:

(i) during the interaction, Coelho shouted in the direction of the Picketers to the effect of “Leave [Copperthwaite] alone, he hasn’t done anything wrong, he is just trying to escort me in”;

(j) the statement of Coelho in (i) caused the Picketers to turn their attention to Coelho and they thereafter started shouting at Coelho “you dog”, “you scab, “I am coming to get you”, and “you will suffer for life like the rest of the scabs”.

402    As to [70(j)], the Ombudsman conceded in closing that she had not proven that the words “you will suffer for life like the rest of the scabs” were said.

403    To prove that the other words at [70(i) and (j)] were said, the Ombudsman relies on the oral evidence of Mr Coelho who said: “in a way, to get the attention off Chris, I responded back to them, to the picketers, your Honour. You know, I just wanted them to get away from Chris. I shouted out, ‘Just leave him alone. He’s not there – he’s not harassing you, you know, he’s only there to escort me in’”. Mr Coelho said the picketers then “sort of turned their attention back onto” him and were saying “pretty horrific stuff” including “I know where you live. I’m coming to kill you. I’m coming to get you. You owe me money.”

404    The Ombudsman also relies on the handwritten note of Inspector Tonev’s conversation with Mr Coelho. That note provides: “I shouted out ‘leave the guy alone, he hasn’t done anything wrong, he just trying to escort me in … most of the Picketer (sic) turned their attention to me … They started shouting ‘you dog, you scab, I’m coming to get you’”. Mr Coelho’s note made on 24 August 2021 does not record the words: “I’m coming to get you”, although that note does not appear to record any particular words spoken on that day with the exception of “dog, scab, pigs”.

405    As to the evidence of Mr Copperthwaite, the Ombudsman relies on the oral evidence of Mr Copperthwaite where he said: “Coelho was yelling out to draw attention off me”, and his further amended outline which provides: “Mr Coelho started to call out to the picketers, as if to draw attention away from Mr Copperthwaite”. The Ombudsman also relies on the handwritten note of Inspector Tonev of his conversation with Mr Copperthwaite which stated that: “I believe Louis started calling out to the crowd, I believe to draw there (sic) attention off me. Louis was sitting in his ute about 2 metres away from me. The crowd was telling [Mr Coelho] to shut up”.

406    Mr Copperthwaite did not give oral evidence that the words alleged at [70(i) and (j)] were said at this point in the events. He did not record in any of his written records that the words “I’m coming to get you” were said.

407    Again, there was no express cross-examination on the words alleged at [70(i) and (j)] being said at this point in the events, save that the respondents say the evidence of Mr Coelho and Mr Copperthwaite should not be accepted.

408    Where Mr Coelho’s oral evidence is corroborated by his conversation with Inspector Tonev, and the notes of that conversation, and in the absence of any express challenge to the words being said at this point in the events, I am satisfied on the balance of probabilities that these words were said to Mr Coelho on 24 August 2021 at this point in the events. Again, by unknown persons.

A picketer says “you should have become an MUA member and joined the picket line” to which Coelho responded “I’ll support you guys if you support my family, because I will be on strike with no income” – ASOC [70(k)]

409    Paragraph [70(k)] of the Amended Statement of Claim provides “immediately thereafter, an unknown picketer said: ‘you should have become an MUA member and joined the picket line’ to which Mr Coelho said: ‘I’ll support you guys if you support my family, because I will be on strike with no income’”.

410    The Ombudsman relies on Inspector Tonev’s note of his conversation with Mr Coelho which provides that Mr Coelho said to the picketers: “I’ll support you guys, if you support my family because I’ll be on strike with no income”. Mr Coelho’s note made on 24 August 2021 does not record these words, although, as explained above, that note does not appear to record any particular words spoken on that day with the exception of “dog, scab, pigs”.

411    The Ombudsman also relies on the oral evidence of Mr Coelho where he said that:

So after that, another bloke shouts out “$50, $50, you could have had the same entitlements as we have.” $50, I thought to myself, $50. I shouted back, “Listen, you give me a dollar for my church.” And before I finished saying anything else, he goes “Fuck your church.” Your Honour, it was the point I was trying to make that he was – he was asking me to pay him $50 for a fight that wasn’t any interest to me. I wasn’t – I didn’t want to be involved in that fight. Which is the same as me asking him for a dollar for a belief he had to believe in.

412    That oral evidence is only vaguely and thematically consistent with the pleaded allegation.

413    There was no oral evidence from Mr Copperthwaite that these words were spoken. Mr Copperthwaite does not record these words having been spoken in the note of Inspector Tonev’s interview with him, his note of 24 August 2021, the police report, or his amended outline of evidence.

414    Whilst these words are more benign than others pleaded, the “effects of the 24 August 2021 Action” are said to be the result of “one or more of the 24 August 2021 Actions”. I understand the Ombudsman to separately rely on this pleaded allegation as having the effects pleaded.

415    I am not satisfied on the balance of probabilities that the words pleaded were said. There was no oral evidence, from any witness, consistent with the pleaded allegation.

A picketer then says “go in my doghouse” to Mr Coelho – ASOC [70(l)-(m)]

416    Paragraph [70(l) and (m)] of the Amended Statement of Claim provides:

(l) a picketer then says “go in my doghouse” to Coelho and/or “oh you can sleep with my dog”, which prompted an argument between Coelho and the Picketers;

(m) the Picketers continued to shout at Coelho and at Copperthwaite.

417    In closing, the Ombudsman conceded that she had not proven that the words “Oh you can sleep with my dog” were said.

418    For [70(l)], the Ombudsman only relies on the file note of Inspector Tonev’s conversation with Mr Coelho that states: “Someone said ‘go in my doghouse’”. Neither Mr Coelho nor Mr Copperthwaite gave oral evidence of these words having been said. None of their records (other than Inspector Tonev’s note of his conversation with Mr Coelho) record these words having been said. I am not satisfied on the balance of probabilities that the words pleaded at [70(l)] were said.

419    As to [70(m)], the Ombudsman relies on the oral evidence of Mr Copperthwaite in which he said, “after I went inside, they were still barking and yelling ‘you dog’, and – not a lot changed. They were still doing their usual their yelling of, ‘The MUA, here to stay’”. The file note of Inspector Tonev’s conversation with Mr Coelho also states that “we argued back and forth … (They were all still shouting the usual at me)”. In the context of all those matters above, and the conduct that I am satisfied occurred up to this point, I am satisfied that there was continued shouting. I am not able to conclude to the requisite standard what words were used.

As Mr Copperthwaite and Mr Coelho enter the gate, a picketer makes a hand gun gesture towards Mr Coelho and Mr Copperthwaite – ASOC [70(n)-(p)]

420    Paragraph [70(n)-(p)] of the Amended Statement of Claim provides:

(n) shortly thereafter, Gate 6.2 was opened (remotely) and Coelho and Copperthwaite were able to enter;

(o) as they entered, another Picketer, who was wearing a dark grey hoodie (and/or dark glasses), made a hand gesture to the effect of a shooting gun which he aimed at Coelho and then at Copperthwaite, and also silently mouthed words to the effect of “Bang! You’re dead” (the Hand Gun Gestures); and

(p) by the Hand Gun Gestures, the Picketer intended to convey and did convey that each of Coelho and Copperthwaite risked being physically harmed or killed (and exposing their respective families to harm or killing) unless they complied with the CFMEU’s wishes.

421    As to [70(o)], the Ombudsman does not now maintain that the hand gun gesture was pointed towards Mr Copperthwaite. Rather, she now says that it was only pointed at Mr Coelho. Additionally, as to [70(p)], the Ombudsman also does not maintain that by the hand gun gesture, the picketer intended to convey and did convey that Copperthwaite risked being physically harmed or killed (and exposing his family to harm or killing) unless he complied with the Union’s wishes.

422    Mr Coelho gave evidence about the incident. First, his oral evidence was: “when I turned to my right, some guy had pulled up his arm, looked directly at me, and the gesture of a handgun and actually shot at me and bang, you’re dead”. Second, his handwritten statement made on the day, 24 August 2021, provides “one hand gesture was specifically disturbing as it was in the shape of a hand gun”. Third, the note of his conversation with Inspector Tonev records: “as I took one last look at the picketers 1 guy with a hoodie point his hand at me with a gun guesture (sic)”.

423    Mr Copperthwaite also gave evidence about the incident. First, his oral evidence was:

What occurred after that, that you saw?---One of the crowd members was yelling back at Mr Coelho, and he put a gesture of a gun with his hands.

And what was he wearing that you remember?---He was just wearing all black with a hood on. He had sunglasses on.

And who was he pointing the gun gesture to?---To Luis.

Second, his handwritten statement made on the day provided: “one man also threatened Louis by making a gun hand gesture”. Third, his further amended outline of evidence provides:

One man who was wearing dark clothes and what appeared to be tinted sunglasses, used his hand to form a gun gesture and pointed it at Mr Coelho. The man was tall and skinny. He was wearing a black hoodie and black pants and shoes. The man then pointed the “gun” at Mr Copperthwaite.

Fourth, the note of his conversation with Inspector Tonev records: “one guy with a ski mask on, (dark clothes) pointed his hand … in a gun guesture (sic) Louis and then me”.

424    There was, however, a dispute between the evidence of Mr Coelho and Mr Copperthwaite. Whilst both said they saw the gun gesture, Mr Coelho gave evidence of a conversation he had with Mr Copperthwaite about which he said:

I asked Chris Copperthwaite if he had seen the big bloke do that to me. And Chris said no because Chris was already through the gates, way out of sight, nowhere near me. So he’s – he wouldn’t have been able to see that. It’s impossible for him to see that.

425    The Ombudsman in her closing submissions identified, by reference to the video footage described in detail above, the approximate time at which she alleges the incident occurred. That was around 6:01:40 am. I have examined that point in the video footage. At that point in the video footage Mr Copperthwaite is inside the Gate. His is heading away from the Gate but does turn back to check on the progress of the entering vehicle and Mr Coelho in his vehicle.

426    The Union submits that the evidence of Mr Coelho and Mr Copperthwaite about the gun gesture was “riddled with inconsistencies”. They make the following submissions:

(1)    Mr Copperthwaite gave inconsistent accounts about what the gesturer was wearing and whether the gesturer directed the “gun” towards Mr Coelho and himself;

(2)    Mr Coelho’s evidence is that Mr Copperthwaite told him he had not seen the person make the gun gesture, whereas Mr Copperthwaite said he did see it. In this regard, it is distinctly unlikely that Mr Copperthwaite would or could have seen the man making the gesture as he was either inside the compound or passing through the turnstile when it was made;

(3)    Mr Copperthwaite was clear that the gesturer was wearing sunglasses. The Union submits that Mr Coelho was clear that he was not;

(4)    Mr Copperthwaite gave no evidence that the gesturer said: “Bang! You’re dead”. Mr Coelho’s evidence on this was incapable of belief. Mr Coelho said he did not hear this but that the man said these things because he “had done the motion”; and

(5)    Ultimately, the Court should not be satisfied, particularly given the seriousness of the allegations made and the inherent unlikelihood of the conduct, that it occurred.

427    I am satisfied on the balance of probabilities that the physical gun gesture was made. I am not satisfied that the words “bang you’re dead” were said or “silently mouthed”.

428    I accept that some of the surrounding circumstances produced inconsistent details. However, the material aspects of the event were consistent. By the material aspects, I mean the making of the physical gesture itself: that it was directed to Mr Coelho, and when and where it was made. Those material aspects were consistent in Mr Coelho’s oral evidence, his note of the day and his interview with Inspector Tonev. They were consistent in Mr Copperthwaite’s oral evidence, his note made on the day, his interview with Inspector Tonev, and his amended outline of evidence.

429    I accept that Mr Copperthwaite resiled from his earlier account (given to Inspector Tonev) that the gesture was also directed at him. Mr Copperthwaite’s explanation for resiling was that his recollection of the specifics of the gun gesture was “faulty”. I also accept that he changed his evidence about what the person who made the gesture was wearing. His outline first provided for “dark clothes and a ski mask”. It was amended to “tinted sunglasses … black hoodie and black pants and shoes”, which Mr Copperthwaite again attributed to his recollection of the specifics of the eye covering as being “faulty”. Despite the Union’s submission to the contrary, Mr Coelho did not give evidence that the person was wearing sunglasses, and was not asked in cross-examination whether the person wore sunglasses. I do not consider Mr Copperthwaite’s inconsistencies, or the inconsistencies between Mr Copperthwaite and Mr Coelho, sufficiently undermine the reliability of the evidence on the material aspects of the event.

430    As I say above, I have examined the video footage at the time the Ombudsman alleges the event occurred. Whilst Mr Copperthwaite has entered through the gate at that time, he does turn back to the gate in an apparent effort to check progress of the entering vehicle and Mr Coelho’s vehicle. Whilst he is some distance from the picketers, it appears that he has a clear line of sight to the picketers. I accept his evidence that he saw the gesture.

431    As to whether the words “bang you’re dead” were said or “silently mouthed”, there is no evidence that Mr Copperthwaite heard those words. Mr Coelho’s oral evidence was: “I didn’t hear him say the bang you’re dead, but I – I – I could say he said something to the thing of bang, or you’re dead, because he had done the motion of”. It was clear Mr Coelho did not hear the words. I understood the evidence of “something to the thing of bang, or you’re dead” to include an element of speculation about the likely words that would accompany such a gesture. That evidence does not enable me to be satisfied, on the balance of probabilities, that the words were said or mouthed.

Union liability for the (non-Gill) 24 August 2021 Action

432    As described above at [234]-[243], the Ombudsman submits the Union is liable for the (non-Gill) 24 August 2021 Action. It says that liability arises because:

(1)    of “primary corporate responsibility” by operation of ss 363 and 793 of the Act;

(2)    “as a matter of statutory construction, where the [Union] organised the picket, it should be held to have directly contravened ss 343, 348 and 346” (original emphasis); and

(3)    of the operation of “common law vicarious liability”.

433    As with the Union’s liability for the Gill conduct described at [234]-[243], the Amended Statement of Claim alleged the Union’s liability arose from the Union “organis[ation] and/or t[aking] the 24 August 2021 Actions”, and this is particularised as being “inferred from the facts and matters in: (a) Parts 7(d)-A10; and (b) Part B, and the operation of ss 363 and/or 793 of the FW Act and/or the common law principle of vicarious liability”. Parts 7(d)-A10 plead the roles held by Chris Cain, William Tracey, Doug Heath, Paul Brett, Dave Noonan, John Setka and Jason Gill in relation to the Union; while Part B describes the industrial dispute between Qube and the Union. Notably, Part B deals in part with the Union’s social media campaign, which I have described and discussed previously at [30]-[40].

434    For the reasons that follow, I do not find that the Union was liable for any of the (non-Gill) 24 August 2021 Action.

Union liability under ss 363 and 793

435    As explained above, [80] of the Amended Statement of Claim provides that the Union took the 24 August 2021 Actions by “operation of ss 363 and/or 793 of the … Act”. The pleading does not identify which subsections, within those sections, are relied upon.

436    Dealing first with s 363. Section 363 attaches liability to actions of industrial associations in respect of Part 3-1 of the Act (which includes ss 343, 346 and 348). Section 363(1) relevantly deals with action taken: (a) by a committee of management of the industrial association; (b) by an officer or agent of the industrial association acting in that capacity; (c) by a member of the industrial association authorised by the rules of the industrial association, authorised by the committee of management of the industrial association, or authorised by an officer or agent of the industrial association; and (d) by a member of the industrial association who performs the function of dealing with an employer on behalf of members of the industrial association and acts in that capacity. There was no evidence or pleading that the relevant action was taken by a committee of management of the Union. There was no evidence or pleading that each of the picketers was a member of the Union, that their action was relevantly authorised, or that they were performing the function of dealing with the employer. That leaves s 363(1)(b): action taken by an officer or agent of the Union, acting in that capacity.

437    As set out above, the Ombudsman submits that the reference to an agent in s 363 (and s 793) should be given its ordinary and natural meaning, which she submits is “a person acting on behalf of another”. The Union submits that the word “agent” in ss 793 and 363 should be given its established legal meaning.

438    For the reasons set out above, I accept that the word “agent” should be given its established legal meaning. There is nothing in the Act to indicate that it should not. The text, for the reasons submitted by the Union, supports the established legal meaning. The presumption that it should have its established legal meaning is not displaced.

439    Also, as explained above, ordinarily the party who alleges the existence of an agency relationship bears the burden of proving that relationship and of establishing whether or not the agent acted within the scope of their actual or apparent authority: see G E Dal Pont, Law of Agency, 4 ed, 2021 at 1.10 citing McLaughlin v Daily Telegraph Newspaper Co Ltd (1904) 1 CLR 243 at 276 (Griffith CJ); Baker v Taylor (1906) 6 SR (NSW) 500 at 502-503 (Street J); Cadd v Cadd (1909) 9 CLR 171 at 187 (Isaacs J); Hoare v McCarthy (1916) 22 CLR 296 at 303 (Griffith CJ); Clayton Robard Management Ltd v Siu (1988) 6 ACLC 57 at 59 (Kirby P).

440    There are at least two essential elements commonly identified as essential to recognising an agency relationship. First, the consent of both the principal and agent. Second, the authority given to the agent to act on the principal’s behalf. These two elements are explained in more detail above at [259]-[261].

441    In respect to the 24 August 2021 Actions, the picketers are not identified and are unknown. There is no evidence or pleading of the consent of the principal and agent. There is no evidence or pleading of the authority given to the agent. I am not satisfied that there existed any agency relationship between the Union and the unknown picketers.

442    Much the same applies to s 793 of the Act. Section 793(1) provides for “liability of bodies corporate”. It deals with action: (a) by an officer, employee or agent (within the scope of their actual or apparent authority); or (b) by any other person at the direction (or with the consent or agreement) of an official of the Union. Whilst the pleading does not identify whether (a) or (b) is relied upon, where there is no evidence of a direction of the type contemplated in (b), I proceed on the basis that it is s 793(1)(a) that is relied upon.

443    I sought from the Ombudsman an authority whereby picketers, whether known or unknown, were found to be agents of a Union. The Ombudsman responded that they were unaware of any such authority.

444    The Ombudsman emphasised further that while no Union officials were in attendance at the picket on 24 August 2021, the fact that they were “aware of the behaviour of the picket prior to that” indicates an agency relationship between the Union and the picketers. The Ombudsman said further in relation to agency that the “social media campaign only inflame[d] the situation”.

445    There is no evidence to establish that the unknown picketers on 24 August 2021 were officers or employees. As to agents, for the same reasons as set out above in respect of s 363 of the Act, I am not satisfied that there existed an agency relationship between the Union and the unknown picketers.

Union vicarious liability at common law

446    The Ombudsman alleges that the Union is vicariously liable under the common law for the (non-Gill) 24 August 2021 contraventions of ss 343, 348 and 346.

447    As explained above at [301]-[307], the Ombudsman relied on the first and third “areas” of vicarious liability described by Edelman and Steward JJ in Schokman. The first of those areas is, in broad terms, where one person acts as an agent for another. Consistent with my finding at [445], I am not satisfied that there exists any agency relationship between the Union and the picketers, and therefore the first “area” described in Schokman does not arise.

448    The third “area” described in Schokman may be described in the same terms as “non-delegable duties”. That is, where a principal is in charge of goods and are under a duty to take all reasonable precautions in relation to protecting them, and entrusts that duty to an employee or agent. At [307], in relation to the Gill 24 August 2021 Action, I said they had not explained, and it was not clear how this duty has application in the present case, and that I do not accept the submission that this duty operates in the present case. I repeat that finding in relation to the non-Gill 24 August 2021 Action.

Alleged direct liability of the Union

449    As explained above, the Ombudsman alleges, in respect of each of ss 343, 348 and 346, that the Union is liable because “as a matter of statutory construction, where the [Union] organised the picket, it should be held to have directly contravened ss 343, 348 and 346” (original emphasis). The Ombudsman said further that the Union’s social media campaign demonstrated that the Union “kn[ew] what was going on, on the picket”.

450    That was consistent with the Ombudsman’s oral opening in which she submitted that: “the conduct from 24 August is organised or taken by the Union. Our primary case is a direct liability case that the Union set up the picket … that conduct becomes – they own that conduct, it becomes their own conduct”. As discussed at [310], the Ombudsman could not identify “direct authority” for this proposition, and I am not aware of any such authority.

451    At [308]-[317], I discussed what is required for a Union to be directly or primarily liable under the common law. Relevantly, the authorities emphasise that the person(s) alleged to have contravened the relevant law must have been acting as the “directing mind and will” of the Union when engaging in the contravening conduct (pursuant to Hanley); or, applying Meridian, acting in an official capacity as the Union under its rules.

452    Apart from the conduct alleged to have been done by Mr Gill (at [70(a) and (b)] of the Amended Statement of Claim), the identity of the individuals engaging in the conduct is not known. There is no evidence of any connection between the specific alleged conduct undertaken by the picketers and the Union. The Ombudsman does not allege that the unknown picketers were the "directing mind and will" of the Union. Applying Meridian, it is also difficult to see how the unknown picketers could be acting in an official capacity as the Union under its rules.

453    The contraventions of each of ss 343, 346 and 348 requires taking or organising by a “person”. Given the lack of evidence of the identity of those who undertook the (non-Gill) 24 August 2021 Actions, or their connection with the Union or any authorisation under the Union’s rules, it cannot be established that the “person” who “took” or “organised” the conduct was the Union.

Allegations of contraventions – other events on 24 August 2021

454    The Ombudsman alleges that the (non-Gill) 24 August 2021 Action leads to the following contraventions of the Act by the Union.

455    First, she alleges that the conduct by the unknown picketers on 24 August 2021 was taken or organised by the Union with the intent to coerce Mr Copperthwaite to engage in industrial activity, in breach of s 348 of the Act.

456    Second, she alleges that the conduct by the unknown picketers on 24 August 2021 was taken or organised by the Union with the intent to coerce Mr Coelho to engage in industrial activity, in breach of s 348 of the Act.

457    Third, she alleges that the conduct by the unknown picketers on 24 August 2021 was taken or organised by the Union with the intent to negate the choice of Qube to agree to the proposed enterprise agreement sought by the Union, in breach of ss 343 and 348 of the Act.

458    Fourth, she alleges that the Union took, or organised the unknown picketers to take, adverse action against Mr Copperthwaite because he had not engaged in or proposed not to engage in industrial activity, in breach of s 346 of the Act. The adverse action is alleged to be the unknown picketers’ conduct on 24 August 2021 which is said to have had the effect of prejudicing Mr Copperthwaite in his employment.

459    Fifth, she alleges that the Union took, or organised the unknown picketers to take, adverse action against Mr Coelho because he had not engaged in or proposed not to engage in industrial activity, in breach of s 346 of the Act. Again, the adverse action is alleged to be the unknown picketers’ conduct on 24 August 2021 which is said to have had the effect of prejudicing Mr Coelho in his employment.

460    In circumstances where I have concluded that the Union is not liable for the conduct of the unknown picketers on 24 August 2021, in any of the various ways alleged by the Ombudsman, I cannot be satisfied that these contraventions of the Act are made out.

461    The Ombudsman also says that, further and in the alternative to the allegations of primary liability against him discussed above, Mr Gill is liable as an accessory under s 550 of the Act for the contraventions committed by the Union. Given I am not satisfied that the facts establish that the Union has contravened the Act, it follows that Mr Gill cannot be found to be liable as an accessory to the Union’s conduct.

RELIEF

462    The Ombudsman’s Originating Application seeks declarations of contraventions consistent with the Court’s determination of liability issues, the imposition of penalties upon Mr Gill and the Union for each of the contraventions determined, compensation for Mr Copperthwaite’s loss and Mr Coelho’s loss (to be jointly and severally paid by the Union and Mr Gill) and personal payment orders. The personal payment orders sought oblige Mr Gill to personally pay any penalties imposed upon him and not to seek or receive money referrable to those penalties from the Union.

463    The hearing was conducted on the basis that matters of liability were to be determined before a further hearing on relief. The one exception to that approach was the hearing of evidence from Mr Copperthwaite and Mr Coelho as to their loss.

464    In those circumstances, I will consider the question of compensation for Mr Copperthwaite and Mr Coelho. It will remain necessary to hear from the parties on the appropriateness of declarations and penalties. I will otherwise order the parties to confer and propose orders reflecting these reasons and the timetabling of the further hearing on relief. I will list the matter for a case management hearing to timetable that hearing on relief.

COMPENSATION

Compensation principles

465    By her Originating Application, the Ombudsman seeks an order pursuant to s 545(1) of the Act that Mr Gill and the Union pay compensation to Mr Copperthwaite and Mr Coelho for their loss.

466    Section 545(1) confers a broad power on the Court to make “any order the court considers appropriate if the court is satisfied that a person has contravened … a civil remedy provision”. Section 545(2)(b) provides that without limiting subsection (1), the Court may make an order awarding compensation for loss that a person has suffered because of the contravention.

467    In determining the compensation to be awarded, the governing consideration is what the court considers “appropriate”: Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 at [157] (Mortimer J). This means that the section can allow a court to order compensation which may not fully compensate a person for the loss suffered: Dafallah at [157]. The discretion to award compensation is also not confined to relief only being appropriate when granted in strict observation of the remedial purpose of the power: Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348; 304 IR 280 at [28] (Lee J).

468    That said, there must be an appropriate causal connection between the contravention and the loss claimed: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; 193 FCR 526 at [423] (Barker J). Determining whether there is a causal connection may involve “not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions)”: Transport Workers’ Union of Australia v Qantas Airways Ltd [2024] FCA 1216; 334 IR 187 at [70] (Lee J), citing Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 at [28] (Allsop, Mansfield and Siopis JJ).

469    Lee J considered in Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 at [23] that, in assessing causation under s 545(1) in that case, the following questions seemed to be relevant: first, whether a loss has been proved; second, whether the contraventions had a role in the happening of the loss; and third, whether the order for statutory compensation is appropriate.

470    Orders of compensation under s 545 can include a component for distress, shock, hurt and humiliation: see e.g. Aircraft Engineers Association at [447]–[450]; James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 at [157] (Griffiths and SC Derrington JJ, with whom Rangiah J agreed). In Qantas Airways, Lee J relevantly stated at [208]:

As is well recognised, the assessment of compensation for emotional distress or the like is inherently imprecise and non-scientific (FWO v MUA (No 2) (at [68])) due to the fact that the Court is required to place a monetary value on something that is not easily able to be financially quantified: Richardson v Oracle Corp Australia Pty Ltd (2014) 223 FCR 334; 244 IR 277 (at [94] per Kenny J). In this sense, it has been observed that it is impossible to precisely translate such non-economic loss into a monetary sum: O’Brien v Dunsdon (1965) 114 CLR 669 (note) (at 78 per Barwick CJ, Kitto and Taylor JJ). Nevertheless, the Court must, doing the best that it can, award an amount it considers to be reasonable compensation for the non-economic loss sustained, taking into account the individual facts of each case: O’Brien v Dunsdon (at 78 per Barwick CJ, Kitto and Taylor JJ).

Mr Copperthwaite’s compensation

471    By her Originating Application, the Ombudsman seeks an order that Mr Gill and the Union jointly and severally pay compensation to the Ombudsman for Mr Copperthwaite’s loss pursuant to s 545(1) of the Act. The Ombudsman does not claim economic loss. Mr Copperthwaite has not been diagnosed with a medical condition arising from the events on 24 August 2021.

472    The Ombudsman submits that Mr Copperthwaite should be compensated for non-economic loss. The Ombudsman submits that Mr Copperthwaite’s distress is demonstrated by the following unchallenged evidence:

(1)    Mr Copperthwaite thinking about the incident every day whilst he was still working at Fremantle docks;

(2)    Mr Copperthwaite waking up suffering anxiety and fear while he continued to work;

(3)    Mr Copperthwaite putting in place 24 hour 7 day a week security during the industrial action;

(4)    Mr Copperthwaite hiring a car for his partner to use for two weeks;

(5)    Mr Copperthwaite still having occasional nightmares of feeling crowded and threatened; and

(6)    Mr Copperthwaite having panic attacks if he is in dark areas.

473    The Ombudsman submits that Mr Copperthwaite should be awarded between $40,000 and $50,000 in compensation. The Union submits that the amount sought by the Ombudsman is “manifestly excessive” and an amount in the $10,000 range is appropriate for Mr Copperthwaite: see CFMMEU v Melbourne Precast (No 3) [2020] FCA 1309 per O’Callaghan J.

474    As explained above, I am not satisfied that the Union has caused Mr Copperthwaite any loss. However, I am satisfied that the Ombudsman has established an appropriate causal connection between Mr Gill’s contraventions and the loss suffered by Mr Copperthwaite. As discussed above, I am satisfied that Mr Gill has contravened ss 343, 348 and 346 in respect of Mr Copperthwaite. I accept that Mr Copperthwaite experienced distress and hurt as a result of Mr Gill’s contraventions.

Quantum of compensation: Mr Copperthwaite

475    In determining Mr Copperthwaite’s loss under s 545, I have had regard to the principles I have outlined above and the fact that I have only found contraventions in respect of Mr Gill’s conduct and not in respect of the unknown picketers’ conduct. I do not consider it “appropriate”, within the meaning of s 545, to compensate Mr Copperthwaite for loss suffered due to (1) events that have not been pleaded as contraventions, being the conduct of picketers between 30 July 2021 and 23 August 2021 (such as name-calling, saying comments to the effect of “check your moral compass” and video recording with phones, or the conduct of the picketers from 25 August 2021 to the end of the picket on 15 October 2021; or (2) events that I have not found to be contraventions of the Act, being the conduct of Mr Gill on 24 August 2021 pleaded at [70(a)] of the Amended Statement of Claim or the conduct of the unknown picketers on 24 August 2021 pleaded at [70(d)-(p)] of the Amended Statement of Claim.

476    It is difficult to isolate the specific loss caused to Mr Copperthwaite by Mr Gill’s dead dog statement, as compared to the conduct of the other picketers on 24 August 2021 and any conduct during the picket before or after that date. I have had regard to the evidence of Mr Copperthwaite as to the distress caused by the picketers in the period before 24 August 2021 described at [53] above, including his comment to Inspector Tonev that over time he “almost became immune” to the constant behaviour. I have found that the conduct of the other picketers toward Mr Copperthwaite on 24 August 2021 included death threats (described at [384]) and statements that Mr Copperthwaite should “think about Charmaine and the kids” (at [393]). I accept that that conduct would have caused distress to Mr Copperthwaite. Nevertheless, my task is to award compensation that reflects Mr Gill’s contravention alone, noting the inherently imprecise nature of calculating non-economic loss.

477    Mr Gill’s threat was serious. I am satisfied that Mr Gill’s threat was made in close proximity to Mr Copperthwaite, in a confrontational manner, and caused Mr Copperthwaite distress. In awarding compensation, I consider the seriousness of Mr Gill’s conduct, but also the fact that Mr Copperthwaite has not suffered any diagnosed psychological injury: see Dafallah at [179], Melbourne Precast at [10]. I will make an order for compensation of $14,000, which I consider to be appropriate in all the circumstances.

Mr Coelho compensation

478    By her Originating Application, the Ombudsman seeks an order, pursuant to s 545 of the Act, that the Union pay compensation for the loss that Mr Coelho has suffered because of the contravention of the Act. The Ombudsman submits that Mr Coelho’s loss is in the form of a profound psychological injury from which he may suffer for the rest of his life. The injury is said to have the events of 24 August 2021 as its “precipitant” and is said to have been aggravated by the events of 20 December 2021. Mr Coelho also gave evidence about how he fears going out and how it has impacted his and his partner’s daily life.

479    In circumstances where I have concluded that the Union is not liable for the conduct of unknown picketers, and that Mr Gill’s dead dog statement was not a contravention against Mr Coelho, it is not necessary to determine the question of compensation for Mr Coelho.

480    However, and for completeness, even if I found that the Union was liable for the conduct of the unknown picketers, I would still not award compensation to Mr Coelho. This is because I do not consider that the Ombudsman has established a sufficient causal connection between the conduct of the unknown picketers on 24 August 2021 and the loss suffered by Mr Coelho.

481    For the reasons that follow, I consider that inconsistencies and deficiencies in the evidence preclude me from finding the requisite causal connection.

Were the events water off a duck’s back?

482    In his note of 24 August 2021 following the incident, Mr Coelho wrote: “My main concern was young Chris. Cause I as an older fellow have skin like a duck. Water just slides straight off.” Mr Kranendonk gave evidence that when he asked Mr Coelho to prepare that statement, Mr Coelho said he was not sure if he would make a statement or not because “he had thick skin” and the events of 24 August 2021 were “water off a duck’s back”.

483    The Ombudsman submits that Mr Coelho’s attempts to downplay the effect of the events were signals of “false bravado” and are consistent with the position that he was better equipped to deal with threats and intimidation than the younger Mr Copperthwaite. The Ombudsman’s submissions drew attention to Mr Coelho’s evidence in examination in chief that he had a “terrified” state of mind when making the statement, and his evidence that:

[I]f the picketers had found out I’ve made a statement, that would just escalate things even worse, your Honour. Knowing that Chris Copperthwaite had gone down to the police station and made his statement, I felt quite – yes, a little bit worried about making this statement of the – any future things that might happen to me because of it.

484    In its written submissions, the Union submits that Mr Coelho assented to the proposition in cross-examination that the 24 August 2021 incident was like “water off a duck’s back” for him. The Ombudsman submits these “concessions” are inconsistent with the rest of Mr Coelho’s evidence regarding his distress surrounding the events on 24 August 2021. It is helpful to set out these alleged concessions one by one. First, there is the following exchange:

I asked you, a bit earlier, about the statement you gave to Qube on 24 August?---Yes.

And is this the truth?---Yes, your Honour.

By the end of whatever happened on 24 August, it was “like water off a duck’s back” for you? Just answer my question “yes” or “no”, please?---Yes, your Honour.

…

THE WITNESS: That was written – I written that in the statement.

485    Second, and shortly after that exchange, there was another exchange about the “water off a duck’s back” comments:

You’re still employed by them?---That’s right. Michael Kranendonk even paid me for that day that the incident happened.

All right. And this is the situation. You have the incident on 24 August, and it’s “water off a duck’s back”; correct?---Correct, your Honour.

You then keep coming to work for, basically, every day during the industrial action?---Correct, your Honour. I wasn’t going to lose my job for no one, your Honour. I fought hard. I done – I studied and learned things I thought I would never learn. I’ve got a job of a lifetime, your Honour, and I wasn’t going to let anyone or anything get in between me and this job, your Honour.

You continue to come to work, working side-by-side by the MUA members after the industrial action ends?---Yes, your Honour.

(Emphasis added.)

486    These exchanges can either be interpreted as Mr Coelho conceding that the events on 24 August 2021 were “like water off a duck’s back” to him (that is, that the events did not impact him), or that he was making a more limited concession that he had written those words in his statement. However, even if I were to adopt the second interpretation, I would have to consider that interpretation alongside Mr Coelho’s evidence given in cross-examination that he told “all of [the] truth” in his note on 24 August 2021. I am satisfied that Mr Coelho did make the concession in cross-examination that the events on 24 August 2021 were “water off a duck’s back”.

487    Third, in re-examination, Mr Coelho was asked to clarify what he meant by “water off a duck’s back”. Mr Coelho said that the events of 24 August 2021 are: “Not now [water off a duck’s back]. No way”:

You agree you asked questions about whether the events of 24 August 2021 were water off a duck’s back?---Yes, your Honour.

And you did say it was water off a duck’s back. What did you mean by that?---That I’m a bit – a lot older than Chris, actually. And I’ve got grand-kids and nephews and nieces. And being – I was young once too, and older people that, you know, sort of stand over you or, you know, intimidate you, being younger, they get more – you know, a bit more – it’s easier to intimidate the younger bloke. And being older, it was a bit harder to get to me, like, to get under my skin.

And the events of 24 August 2021, are they water off a duck’s back for you?---Not now. No way.

Why not?---Because all the repercussions I’ve been facing and just having to change my whole life around what happened that day and 20 August, it’s just – it’s not normal, your Honour. I just want to go back to the way it was. I just want to go back to the way I was with my partner. Just live a free life, not wondering whether anybody is going to be here or – I just want to go back to the way I was, mate. Simple, your Honour.

…

MR BOURKE: ..... did you mention something about October?---24 August, is – I written the statement and – about the ducks, but also, on 20 December of 2021, I – I think I said “water off a duck’s back” as well, to – just people in general. But it’s not water off a duck’s back, not now anyway.

(Emphasis added.)

488    I consider that when Mr Coelho said: “Not now. No way” he meant he is now impacted by the consequences of the events of 24 August 2021, cumulatively with the subsequent incidents including the 20 December 2021 minivan incident. I do not consider this passage is inconsistent with Mr Coelho indicating that, at first and without the subsequent incidents having yet occurred, the 24 August 2021 did not impact him because they were “water off a duck’s back”.

489    For completeness, I have considered the Ombudsman’s submission that it was “noteworthy that the note [of 24 August 2021] does not actually say that the events of that day ‘were water off a duck’s back’ but as a general proposition, Coelho said he has skin ‘like a duck’ and thus ‘water just slides straight off’”. I reject this submission. In my view, it is clear that Mr Coelho intended to use the idiom “water off a duck’s back” meaning that the events did not affect him.

CCTV footage

490    The CCTV footage of the morning of 24 August 2021 appears to show Mr Coelho laughing, smiling and talking to the picketers. Mr Coelho described in examination in chief that he “gave back just as much as they [the picketers] gave me to begin with”.

491    The respondents submit that Mr Coelho’s demeanour and behaviour on the CCTV footage is consistent with the events being “water off a duck’s back” for him. The Ombudsman, on the other hand, relies upon Mr Coelho’s evidence given in cross-examination that smiling and trying to laugh things off is how Mr Coelho deals with stressful situations, and that he did not want to give the picketers the “satisfaction knowing they were getting to me”.

492    I have reviewed the CCTV footage and I consider that Mr Coelho’s demeanour throughout the video is not indicative of him being scared and intimidated.

Continuing attendance at work

493    The respondents appear to rely on Mr Coelho’s continuing attendance at work after 24 August 2021 up until the minivan incident on 20 December 2021 as indicating that he was not “absolutely terrified” in the aftermath of the 24 August 2021 incident as he claimed. I accord this submission only limited weight. While Mr Coelho’s attendance at work is consistent with him not being terrified, this inference was not clearly put to Mr Coelho in cross-examination. There may have been many considerations that contributed to Mr Coelho’s decision to continue to work after the incident.

Dr Mander’s report

494    The Ombudsman relies on an expert report dated 20 March 2024 of Dr Anthony Mander, a consultant psychiatrist at the Hollywood Medical Centre in Nedlands, Western Australia. Dr Mander produced a report for the Ombudsman’s solicitors for the purposes of this hearing. To prepare his report, Dr Mander relied on:

(1)    a telehealth consultation with Mr Coelho on 20 March 2024;

(2)    a questionnaire filled out by Mr Coelho on 3 March 2024;

(3)    the Statement of Claim filed on 24 March 2022, and the Union’s and Mr Gill’s defences filed on 14 July 2023; and

(4)    a letter from the Ombudsman’s solicitors dated 7 March 2024.

495    Dr Mander concluded that Mr Coelho suffers from a generalised anxiety disorder. The “precipitant” of this disorder, which Dr Mander explained in oral evidence to mean the “trigger” or “starting point”, was Mr Coelho’s experience on 24 August 2021. Dr Mander stated that while the incident on 24 August 2021 was the “precipitant” to Mr Coelho’s generalised anxiety disorder, it was the subsequent events, being the “ongoing intimidation … and the continuing perception of threat” that had been “most impairing”.

496    Dr Mander appropriately accepted in cross-examination that if some of the facts recounted to him by Mr Coelho (including in the Amended Statement of Claim) were found to be incorrect, this would impact the opinions set out in his report. Dr Mander also accepted that he would have to rethink the totality of his opinion if the Court accepted that the 24 August 2021 events were “water off a duck’s back” for Mr Coelho. Dr Mander also found that the reaction to a particular threat “is intimately dependent upon how this thing occurred, you know, ‘How seriously did you take this threat at the time? And who are you as a person?’”.

497    Given these concessions, and the fact that Dr Mander was not briefed with the CCTV footage or Mr Coelho’s 24 August 2021 note where he made the “skin like a duck” comment, I accord only limited weight to Dr Mander’s report in establishing a causal link between the 24 August 2021 events and Mr Coelho’s loss.

Conclusion on Mr Coelho compensation

498    Weighing all of this evidence together, I do not find that there is the requisite causal connection between the events of 24 August 2021 and Mr Coelho’s loss. I consider that the evidence taken as a whole indicates that the 24 August 2021 events did not significantly impact him. While there is some possibility that 24 August 2021 was the “precipitant” event which contributed to Mr Coelho’s loss sometime later, I am not satisfied this is the case given the deficiencies in evidence I have identified. I would find therefore that even if the Union was liable for the unknown picketers’ conduct, I would not award compensation to Mr Coelho.

DISPOSITION

499    As explained above, it remains necessary to hear from the parties on the appropriateness of declarations and penalties. I will order the parties confer as to orders reflecting the Court’s reasons and the timetabling of a hearing on further relief. I will list the matter for a case management hearing to timetable that hearing on relief.

Associate:

Dated:    22 August 2025