Grounds 5, 6 and 6A
123 Grounds 5, 6 and 6A were in the following terms:
5. The primary judge erred in making the orders in respect of the contravention of s 343 of the FW Act based on a finding that the industrial action was unlawful or unconscionable because there was no contravention of s 340 and unconscionability was not demonstrated.
6. The primary judge erred in making the orders in respect of contraventions of s 343 by the appellants in circumstances where the respondent did not plead that the action was threatened, that there was an intent to coerce John Holland not to exercise a workplace right, that there was a negation of choice and/or that the action was unlawful, illegitimate or unconscionable.
6A. The primary judge erred in making the orders in respect of contraventions of ss 340 and 343 of the FW Act based on the reason or intent of the first appellant in organising industrial action or action by applying s 361 of the FW Act.
124 Section 343 of the FW Act is in the following terms:
343 Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply to protected industrial action.
125 The primary judge dealt with s 343 under a heading, as follows:
12. Did the first respondent organise any action against John Holland with the intent to coerce John Holland not to exercise its workplace right; or not to exercise its workplace right in a particular way in terms of s.343 of the FW Act?
126 The primary judge framed her approach by reference to relevant authority at [199] to [202] of her reasons, as follows:
199. As identified in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 at [41], per Merkel J, the necessary elements of a contravention of s.343 are that:
i) Pressure be exerted which, in a practical sense, will negate choice.
ii) The pressure must involve conduct that is unlawful, illegitimate or unconscionable.
200. Negation of choice is more than an intent to influence or persuade or induce. Coercion requires 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 (see National Tertiary Education Industry Union v Commonwealth [2002] FCA 441; (2002) 117 FCR 114 at 143 per Weinberg J).
201. In Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436 at [36], Buchanan J stated that:
"The pressure must be such as to leave no real choice. It must negate, not merely burden, the will".
202. An examination of intent is relevant to the first element of coercion, and an objective examination of the circumstances is relevant to the second element (see Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72 at 448 per Buchanan J) (Esso).
127 The primary judge examined the question of "negation of choice" at [203] to [205], the question of whether the "pressure was unlawful or unconscionable" at [206] to [210] and the present appellants' complaints about the pleadings at [211] to [221]. Her Honour's conclusions were at [222].
128 To the extent that the appellants argued that there was no workplace right for the purposes of the operation of the section, that argument cannot succeed for the reasons expressed above.
129 The appellants complained that the case pleaded was only ever directed to the exercise of a workplace right in a particular way. (See para 23 of the ASOC and issue 20 of the agreed statement of issues annexed to the reasons for judgment.) That complaint is legitimate and to the extent that declaration 2 is framed as coercion not to exercise a workplace right (at all), it should be set aside.
130 The next complaint, and more substantial one, was that the words used in explication of coercion by Merkel J in Seven Network and set out by the primary judge at [199] of the reasons were not pleaded.
131 This argument dovetailed with the complaints about the use made by the primary judge of s 361 of the FW Act at [186] to [196] of the reasons.
132 The arguments must be disentangled somewhat. First, it can be accepted that there was no unfairness at one level in failing to plead "negation of choice, unlawful or unconscionable" as the "constituent elements" of coercion. The well-known judgment in Seven Network and the then recent judgment in Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72; 245 FCR 39 at 84 [174] (Buchanan J, with whom Siopis J agreed at [1]) made that point. That would explain why no complaint was made by experienced practitioners about surprise in relation to para 23 of the ASOC and why agreed issue 20 was framed as it was.
133 This negation of choice, unlawfulness and unconscionability (on the settled state of authority) were concepts central to the consideration of coercion.
134 As such there could be no complaint that they were the subject of consideration. However, the application of s 361 of the FW Act is another question. Section 361 is in the following terms:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
135 The words used by Parliament are "particular intent". The intention pleaded in para 23 of the ASOC was "with the intent of coercing", as follows:
The First Respondent took this action with the intention of coercing John Holland to exercise a workplace right in a particular way and therefore contravened s.343 of the FW Act.
PARTICULARS
(i) The workplace right of John Holland was a role or responsibility under a workplace law within the meaning of s 341(1)(a) of the FW Act - namely a duty to ensure the health and safety of workers on the Site pursuant to s.19 of the Workplace Health and Safety Act 2011 (Cth).
(ii) The First Respondent intended to coerce John Holland to exercise that workplace right in a particular way, namely, by adopting a safety policy which allowed workers to wear shorts and short sleeve tops.
(iii) The Applicant relied upon s.361 of the FW Act.
(iv) To the extent necessary the Applicant relies upon s 360 of the FW Act.
136 In Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 277 IR 75, the Court (Tracey, Reeves and Bromwich JJ) discussed what was necessary to be alleged (the word used in s 361(1)(a)) for the reverse onus in s 361(1) to be engaged. The case involved alleged coercion under ss 343 and 355 of the FW Act.
137 At [13] to [15], the Court emphasised the clarity and specificity that is required and the reasons therefore:
13. Stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Part 3-1 of the FWA to "prove otherwise" than that he or she took the contravening action for the particular reason, or with the particular intent, alleged in the applicant's application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned that the contravening action was taken for that particular reason or with that particular intent. Before this presumption operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise. The word "particular" in s 361(1)(a) must be given its ordinary and natural meaning. Relevantly, that is: "2. being a definite one, individual, or single, or considered separately: each particular item. 3. distinguished or different from others or from the ordinary; noteworthy; marked; unusual. … 6. dealing with or giving details, as an account, description, etc., of a person; detailed; minute; circumstantial". See Susan Butler (ed), Macquarie Dictionary (Pan Macmillan, 7th ed, 2017) vol 2, 1096.
14. It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions (see Gallagher v Cendak [1988] VR 731 at 738-739 (Vincent J) and JD Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017) at [7105]). In Part 3-1 of the FWA, it is also heightened by the provisions of s 360. That section, when read with s 361(1)(a), requires a person who is alleged to have taken a contravening action to establish that the particular reason for which it is alleged that person took that action is not included among any of the reasons for which he or she took that action. It is important to note that, in contrast to s 361, s 360 only applies to a "particular reason" and it does not extend to a "particular intent", both of which are covered by s 361. Section 360 therefore only applies to the "particular reason" component of s 361.
15. The second pre-condition which must exist for the presumption in s 361(1) to operate is of equal importance in this matter. It is the requirement in s 361(1)(b) that "taking that action for that reason or with that intent would constitute a contravention of this Part". This pre condition therefore requires more than an allegation with respect to an action, reason or intent. Additionally, it requires that taking the alleged action, for the alleged reason or with the alleged intent (or both), "would constitute a contravention of that Part".
138 After referring to a number of authorities the Court said at [19]:
Having regard to these observations and, in particular, to the provisions of s 361(1)(b), we consider that an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Part 3-1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent. As French J said in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173; [1991] FCA 557 at 6, "[a] material fact is one which is necessary to formulate a complete cause of action. … Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet."
139 After dealing with the notion of adverse action in ss 340-342 the Court turned to discuss coercion in ss 343 and 355 (at [20]-[24]). In relation to the latter and "intent to coerce" the Court said at [25] and [26]:
25. It is well-established that the expression "intent to coerce" in ss 343 and 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39 at 84; [2016] FCAFC 72 at [174] (Buchanan J, with whom Siopis J agreed at [1]). We interpose that this conclusion and the line of authorities relied upon to reach it do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see Esso Australia Pty Ltd v Australian Workers' Union (2017) 350 ALR 404 at 425; [2017] HCA 54 at [61] (Kiefel CJ, Keane, Nettle and Edelman JJ).
26. Furthermore, and most importantly for present purposes, the Full Court also held in Esso that the intent aspect of the expression "intent to coerce" applies to the negation of choice element. This contrasts with the other element, the use of unlawful, illegitimate or unconscionable conduct, which is to be assessed objectively (see Esso at 86-87 [194]). It follows that the relevant particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate choice. It follows further that, for the presumption in s 361 to operate with respect to a contravention of those sections, the particular intent that must be alleged in the application is an intent to negate choice. Conversely, alleging that the particular intent was an "intent to coerce" creates ambiguity because that expression does not refer to an intent per se, but rather, as discussed above, refers to the two elements of coercion, only one of which relates to the alleged contravener's intent.
140 The pleadings were then examined and found to be deficient. At [41] the Court said:
Finally, as is mentioned above at [26], the relevant "particular intent" in a contravention of ss 343 and 355 is an intent to negate choice. That particular intent has not been alleged in either of the two sets of allegations set out above. Instead, the expression "intent to coerce" has been used. As has also been mentioned above at [25], in this context, that expression conveys the two elements of coercion under ss 343 and 355 of the FWA. The pleaded allegations do not, therefore, convey the relevant particular intent required for a contravention of those provisions, namely an intent to negate choice. For these reasons, we do not consider the Commissioner complied with the first pre-condition mentioned above at [13]. That being so, we do not consider that the presumption in s 361 operated with respect to the alleged contraventions of ss 343 and 355.
141 The same deficiency exists in the present pleading. At [48] to [51] the Court in Hall discussed the question of the curing of any pleading deficiency, as follows:
48. At the hearing of this appeal, the Commissioner's counsel acknowledged that many of these deficiencies were present in the ASOC. To attempt to overcome them, she sought to rely on various statements that were made in opening and closing submissions before the primary judge which, it was contended, clarified how the Commissioner's coercion case under ss 343 and 355 was put. She claimed that none of the respondents had raised any concerns about the coercion case as it was pleaded in the ASOC. By not doing so, she contended, they had acquiesced in the trial being conducted on a different basis to that stated in the pleadings. We do not consider that these contentions can be accepted.
49. One of the main purposes of pleadings is to define the issues in dispute with sufficient clarity to enable the opposite party to understand the case he or she has to meet and to provide him or her with an adequate opportunity to prepare to meet that case: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). A concomitant of this principle is that a party is not entitled to depart from his or her pleaded case except if the parties have both deliberately chosen to conduct the dispute on a different basis. That principle was expressed in Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286-287 in the joint judgment of Mason CJ and Gaudron J as follows:
The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) [(1916) 22 CLR 490], per Isaacs and Rich JJ at 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Browne v Dunn [(1893) 6 R 67]; Mount Oxide Mines [(1916) 22 CLR 490 at 517-518].
(Emphasis added.)
50. In our view, these observations apply with even more force in a proceeding such as this where declarations of contravention of the FWA were sought against the respondents and civil penalties were sought to be imposed on them. Faced with those serious consequences, the respondents were entitled to be told clearly and precisely in the Commissioner's ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone. Plainly, this latter exception did not permit the Commissioner to make a significant addition to, or departure from, the pleaded case, in counsel's opening or closing submissions and then seek to justify that course by pointing to the respondents' failure to object as evidence of their acquiescence in that course. If that were the test, this departure from the basic requirements of procedural fairness would not occur by the deliberate choice of the party entitled to fair notice but rather at the self-serving behest of his or her opponent. If such an approach were permitted, the requirement to give fair notice would be made redundant, trial by ambush would become a legitimate tactic, and the issues in dispute at trial would become a movable feast. As well, the ability of a trial judge to manage the trial to ensure it fairly addressed the issues in dispute would be significantly eroded, if not entirely destroyed. So, too, would be the capacity of the trial judge to identify the issues he or she needed to decide.
51. There is insufficient evidence that any such deliberate choice was made by the respondents in this matter. We do not, therefore, accept that the Commissioner was entitled to escape the deficiencies in the ASOC by adopting the approach outlined above.
142 Here, there was a broad-ranging complaint as to the lack of particularity. But ultimately the question is one of statutory construction: what is the particular intent in s 360, in the context of ss 343 and 353 and intention to coerce. The Full Court in Hall has stated at [41] that it is "an intent to negate choice". To the extent that needs to be pleaded, it was not. No argument was put that Hall was plainly wrong, in particular on the basis that a pleading of "intent to coerce" engages the accepted meaning of intent to negate choice (said in the authorities to be subjective) and action that is unlawful or unconscionable (said in the authorities to be objective). On its authority s 361 as not engaged.
143 It is not clear, with respect, how the primary judge used s 361. At [186] to [195] of the reasons the primary judge discussed s 361 in the context principally of s 340. In para 20 of the ASOC it was alleged that Mr Auimatagi took the adverse action because John Holland exercised a workplace right. At [195] of her reasons the primary judge said:
No evidence was provided by the respondents to rebut the presumption that the first respondent's actions were taken other than for the reasons alleged. These reasons, inter alia, were to prejudice John Holland directly or indirectly in relation to its building contract; and, to force John Holland to abandon its Two Longs Safety Policy. The industrial action referred to above was organised because John Holland sought to enforce its Two Longs Safety Policy.
144 As to the first reason identified, it was not pleaded. There was a pleading of causing prejudice for item 7(c), but it was not part of the case that the reason for the action was to prejudice John Holland. The second reason was not so pleaded, but it can be seen, perhaps, as a re-expression of the reason pleaded - that the action was taken because John Holland exercised the workplace right. The second reason might also be seen as an expression of an intention to negate choice by forcing the abandonment of the Policy.
145 The better reading, however, of the primary judge's reasons at [203] to [205] was that her Honour looked to the evidence (and not s 361) to find an intent to negate choice. At [203] her Honour set out the facts she found (about which there is no complaint on appeal):
The first respondent's relevant actions comprise what he said to the workers at the meeting at 7am on 16 January 2014 (referred to in paragraph 133 above in these Reasons) and the circumstances below, and lead to the overwhelming inference that the first respondent's conduct was done with the intent of negating the choice of John Holland to enforce its Two Longs Safety Policy without work stoppages. That inference is bolstered by the evidence before this Court of the following circumstances:
i. The first respondent's plan to impose a choice to wear shorts and short sleeves upon John Holland as had been done at Barangaroo and Tamworth.
ii. The first respondent put his plan to a meeting of workers in the context of suggesting they should have choice and then suggesting that such choice should apply the next morning (being a Friday) or a Monday morning. On discovering the vote was 81 out of 82, the first respondent stated it would be Friday.
iii. Thereafter, the first respondent told John Holland on 16 January 2014, that if it enforced its Two Long Safety Policy on 17 January 2014 by asking any worker to stop work if not dressed in accordance with the Two Longs Safety Policy, all workers on the Site would stop work.
iv. At approximately 8:20am on 16 January 2014, the first respondent told Mr O'Connor, the John Holland project manager, that if any worker was removed from the Site then the whole Site would stop work and return to the crib rooms.
v. At approximately 8:30am on 16 January 2014, the first respondent told the John Holland Safety Manager, Mr Brown, that if John Holland ask one worker to leave, all would go, "Take one out, we all out".
vi. At approximately 10:00am on 16 January 2014, during the Health and Safety Committee meeting at the Site, the first respondent said words to the effect "Take one out, we all go" and "Touch one, touch all".
vii. At approximately 12:00pm, when Mr O'Connor was addressing workers at the Site at a toolbox meeting, the first respondent said words to the effect, The boys have spoken. They want shorts they would be wearing them tomorrow. If you touch one, you touch all.
146 That this is the better view of the primary judge's approach makes it unnecessary to deal with the further submission that s 361 could not be used to reverse the onus for the purposes of s 343 in relation to "organise … or threaten to organise … any action … with intent to coerce …" because s 361 only referred to taking action.
147 At [204] and [205] the primary judge expressed her conclusions, as to an intent to negate or deny choice to John Holland. No complaint was made about those findings.
148 We would reject the complaint made about what was said to be the unpleaded nature of the "threatening" of action. In substance it was pleaded in the particulars to para 10 of the ASOC.
149 The final aspect of the operation of ss 343 and 361 in respect of which there was an asserted deficiency in the pleading is that part of ground 6 that relates to the absence of specific pleading of unlawfulness or unconscionability. We have dealt earlier with the effect of Hall brought about by the failure to plead an intention to negate choice. The identification of unlawfulness and unconscionability as objective meant that there was no requirement expressed in Hall to plead an intent in relation to these concepts to engage s 360. Thus the complaint was of a more traditional kind: that the pleading was inadequate. This was the kind of consideration with which Ryan J dealt (in a pleading dispute) in Laing v Construction, Forestry, Mining and Energy Union (No 2) [2006] FCA 750; 155 IR 244. The parties here were under no misapprehension of what the universe of relevant behaviour or circumstances was. This pleading point has no merit.
150 A more substantive complaint however is ground 5 with respect to the characterisation of the action as intended to coerce, as found by the primary judge, because the action was unlawful or unconscionable.
151 For the reasons given earlier it has not been demonstrated that the conduct was unlawful. The case of adverse action has not been demonstrated. On the evidence there was the clear view of the inspector of the Commissioner that there was no industrial action, and so no unprotected industrial action; and the Commissioner did not prove that there was industrial action bearing in mind the onus in s 19(2)(a).
152 The question is therefore whether the conduct is such as to warrant the characterisation of an intent to coerce. The primary judge dealt with the question as one of unconscionability, briefly, at [208], as follows:
Further, the first respondent's conduct in seeking to negate John Holland's choice to enforce its Two Longs Safety Policy, when it had a statutory duty in relation to the health and safety of its workers, was nothing short of unconscionable.
153 With respect, this was an inadequate expression of reasons and an inadequate basis for a conclusion as to the matter. There are a number of difficulties. First, the conclusion seems to rest upon the proposition that by negativing John Holland's "choice to enforce" its Policy, the first appellant was negating John Holland's ability to comply with its statutory duty under the WHS Act in relation to the health and safety of its workers. This must be premised on an implicit, and unproven, assumption that any policy other than the Policy would have put John Holland in breach of the WHS Act. There is no evidence as to this. Indeed, the evidence suggests this was not the case. The primary judge accepted that Barangaroo and Tamworth had adopted clothing policies allowing short sleeves and/or shorts at [203(a)]. One cannot conclude, without more evidence, that an attempt to force a change of the clothing required on site by John Holland was forcing John Holland to acquiesce to something contrary to its statutory duties under the WHS Act.
154 The concept of coercion, and the place of unconscionability within it, has been the subject of numerous cases. There was no argument in this appeal as to this apparently settled position.
155 The notion of coercion in federal industrial law has recently been illuminated by, with respect, the helpful article by the Hon C N Jessup. "Coercion in federal industrial law" (2018) 46 Australia Bar Review 104. The conception of coercion (as a noun) found in the infinitive form in the context of intention has been accepted by Full Court and single judge authorities in this Court as requiring the pressure applied to be unlawful, unconscionable or illegitimate: Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468; 106 FCR 16; National Union of Workers v Qenos Pty Ltd [2001] FCA 178; 108 FCR 90; Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality & Miscellaneous Workers' Union [2000] FCA 1793; 106 FCR 148; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia & Ors [2001] FCA 456; 109 FCR 378 at 388 [41]; Construction, Forestry, Maritime and Energy Union v Alfred [2011] FCAFC 13; 203 IR 78; State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; 218 FCR 172; and see also the cases cited by Mr Jessup at 114, fn 63.
156 Given the lack of argument it is inappropriate to explore the doubts expressed by four members of the High Court in Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72; 245 FCR 39 as to the relevance of duress conceptions that shaped this jurisprudence to inform the interpretation of ss 343 and 348 of the FW Act.
157 The notion of unconscionability, as imposing a standard of right behaviour formed around conscience, will take its content from the values and expected conduct in an industrial setting. It is a word best understood in its practical application to real life settings where there can be an articulation and expression of why, in an employment and industrial context, the pressure sought to be exerted should be ascribed such a description of departing from right behaviour.
158 Although illegitimacy can be seen to be a similar conception to unconscionability as a word connoting a degree of right behaviour, illegitimacy has emerged (rightly or wrongly) as its own separate category of behaviour: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157; 267 IR 130 per Reeves J at [100]-[101], [153]-[154]; Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223 per Jessup J, [109]-[111]; Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Red & Blue Case) [2015] FCA 1125; 254 IR 200 per Jessup J; Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754; 196 IR 365 per Jessup J at [177], [201-[202], [218]-[219]; Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468 per Gyles J at [41]; Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243; 218 IR 436 per Buchanan J. It remains for another argument, whether this kind of definitional categorisation is helpful.
159 The notion of proportionality has been said to inform the concept of illegitimacy, in an assessment whether there is a reasonable or justifiable connection between the nature of the demand made and the nature of the pressure exerted: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 57, where Reeves J discussed in detail the question of proportionality.
160 In undertaking this analysis, it is useful to recall the comments of Madgwick J at [40] of Commonwealth Bank of Australia v Financial Sector Union of Australia [2006] FCA 1048; 154 IR 467, especially where the conduct undertaken to exert pressure is lawful:
… it should not be assumed, without very clear words, that the legislature proposed to interfere with traditional democratic freedoms … Likewise, it is unlikely that the legislature would have wished to stifle a wide range of ways of vigorous activity and of exerting power or influence, otherwise lawfully permitted and engaged in without general disapprobation, intended to force another party's compliance in commercial and related contexts.
161 Examples of conduct that have been found to be illegitimate include where a person: organises for all workers to seek off site relocations (Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223; 179 IR 44, [109]-[111]), makes threats to put a company out of business (The Red & Blue Case [2015] FCA 1125, 254 IR 200), obstructs a site or locks out personnel from that site (Williams[2010] FCA 754; 196 IR 365; John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; 174 FCR 526; A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047; 165 IR 94; Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality & Miscellaneous Workers' Union [2000] FCA 1793; 106 FCR 148), threatens or organises stoppages of work (Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72; 245 FCR 39), or lies about their member count and threatens to sabotage the broadcast of key television events (Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia & Ors [2001] FCA 456; 109 FCR 378).
162 Looking at the matter here and dealing with unconscionability first, the facts did not in our view amount to action with any necessary unconscionability. Mr Auimatagi was, clearly, trying to change John Holland's views, but he was also playing his part in seeing the wishes of the workers on the site expressed. It was they who voted 81 to 1 not to follow the Policy. There was a degree of encouragement from Mr Auimatagi, but he was not bending a workplace to his or the Union's will. He was seeking, clearly, to bring the Union's (or his) views to the men, and when overwhelmingly supported by them, to put them squarely to John Holland. It may have been unwise, it may have been better to be more conciliatory, it may be open to some criticism, but it did not display any features (given that it has not been shown to be unlawful in the manner alleged in this case) to warrant the conclusion that he acted unconscionably and thus that he was acting coercively or with the intent to coerce John Holland. Mr Auimatagi was telling John Holland that the men would not attend dressed in accordance with the Policy. John Holland was telling Mr Auimatagi and the men that they would not be allowed to work on the site unless they did. There was a clear difference of opinion as to the Policy. By his organisation of the meeting, and by their vote, Mr Auimatagi and the workers each took action with a view to persuading John Holland to change its Policy. We would not characterise the events of 16 or 17 or 20 January as action with intent to coerce. This conclusion does not devalue or lessen the importance of safety. The refusal to follow the instruction may have been a breach of s 28 of the WHS Act. That was not alleged and there may be various answers to such an allegation.
163 There was no arrogance or expression of entitlement to act unlawfully. The wishes, perhaps ill-advised, of the men on the site were being given expression. A conclusion of unconscionability in the circumstances exposed by the evidence was unjustified and not open. The conclusion was not a discretionary evaluation. It was a conclusion of a legal standard as part of the meaning of coercion.
164 Was the action illegitimate? The aim was not to ensure that work was ceased completely, where the vote only served as a means to legitimise an improper aim. The temporary cessation of work was a consequence of the action taken, but the primary judge, correctly, did not go so far as to say it was the intent behind the action. This can be compared with situations in other cases where the purpose alleged is to ensure cessation of work and no evidence to the contrary is tendered, or to force the employer to employ a labourer on site. At its heart, the purpose was about giving the workers a choice, even if this meant John Holland's choice to enforce its Policy in its form at that time was to be negated.
165 Turning to the nature of the pressure, Mr Auimatagi exerted pressure by the means listed in [203] of the liability judgment. He encouraged the workers to make a stand, organised and held a vote, and communicated the vote's outcome and the workers' will on 17 January 2014 to John Holland. All in all, the plan may be seen as disobedient. But it was not unlawful and not illegitimately disproportionate.
166 There was a focus, by the respondent and by the primary judge, on Mr Auimatagi's comments along the lines of "touch one, touch all". This comment should be taken in context. The workers had voted 81-1 in favour of making a "stand". For the action to have the intended effect, and implicit in the making of "a stand", is that they would be making a stand together. So, if one of the workers was approached and asked to leave the worksite due to their shorts or short sleeves, the other workers would follow, taking it (correctly) that they would all be so asked. This is not merely because of solidarity. Presumably, many of the other workers were wearing shorts or short sleeves. Simply put, enforcement of the Policy would mean the removal from the site of all of the workers wearing shorts or short sleeves. Calling out "touch one, touch all" was not so much a threat of cessation of productive work on site as an indication that the workers would all be making a stand, and that involved disobeying, together, a policy they viewed as inflexible.
167 It should also be noted that Mr Auimatagi did not suborn the workers to have them vote in favour of this action. Nor did he merely go "through the motions of having a vote" (contrast to Williams [2010] FCA 754; 196 IR 365 at [177], [201]-[202]). He told the workers they "should have the choice" and asked "[w]ho is wanting to have the choice of wanting shorts and short sleeves?" He suggested the workers go for it, but expressly said it was "up to you". He noted that they needed a vote. The workers voted in favour of the plan to wear shorts and/or short sleeves on site, 81 to 1.
168 The exertion of power and influence by Mr Auimatagi in a manner that was disobedient but not unlawful nor unconscionable does not, taking into account the range of action taken and the context surrounding that action, seem disproportionate to the aim of giving the workers more choice in their clothing on site. It was therefore also not illegitimate.
169 In our view grounds 5 and 6A are made out (though only ground 5 is truly operative), and ground 6 is not made out.
170 The effect, however, of ground 5 being made out is that declaration 2 and declaration 3 (in so far as s 343 is relied upon) should be set aside.
171 In the circumstances of the successful grounds of appeal the penalty orders 1 and 2 should be set aside.