AQUANATION
44 On 2 April 2014, Brett Curnow and Duncan McLeod, both employees of Kane covered by the Kane EA, were rostered to perform building work at the Aquanation site. Curnow was a member of the CFMEU and an officer or agent of the CFMEU or the Branch. He was also the elected site health and safety representative under the Occupational Health and Safety Act 2004 (Vic) ("the OHS Act").
45 On that day, Kane had engaged a number of sub-contractors to carry out work at the Aquanation site. Each of those sub-contractors had rostered one or more employees to perform work there as required. The sub-contractors, and the number of employees so rostered in each case, were GR Smith Plastering Pty Ltd (1 employee), P & R Site Fabrications Pty Ltd t/as P.K. Rigging (2 employees), Neptune Swimming Pools Pty Ltd (20 employees), IES Commercial Australia Pty Ltd (5 employees), E and S Steelfix Pty Ltd (3 employees) and HWM Resources (Vic) Pty Ltd (2 employees). In each case, an enterprise agreement made and approved under Pt 2-4 of the FW Act, which had not passed its nominal expiry date, covered the employees concerned in relation to the work done by them at the Aquanation site. Each of those agreements, save that which covered the employees of IES Commercial Australia Pty Ltd, also covered the CFMEU.
46 At about 8.00 am, the respondent Powell arrived at the entrance to the site. Kane's Junior Site Manager, Shaun Cathcart, approached Powell and asked if anyone had spoken to him about entering the site. Powell said, "No I have not been read the riot act, I have not got a permit, I am going to see the plasterer", and entered the site.
47 Shortly thereafter, Kane's Senior Site Manager, Michael Meuwissen, approached Powell and asked him to produce a right of entry permit. Powell did not do so, and said that he would not produce a permit as he did not have a permit. Thereupon, Meuwissen asked Powell to leave the site. Powell refused to do so, saying, "No, I want to have a private conversation with Geoff; leave us alone." "Geoff" was Geoff Smith of GR Smith Plasterers. Meuwissen repeated his request for Powell to leave the site, and Powell continued his refusal to leave, in an exchange the substance and effect of which was as follows:
Meuwissen: You need to leave the site and you can have a private conversation outside the gate with Geoff's permission of course.
Powell: Ah well I'm not going to do that, if you're going to be like that I might as well have a meeting while I'm here.
Meuwissen: You're not permitted to and need to leave. Don't go down this path.
48 Meuwissen then told Powell that he would call the police if Powell did not leave the site. Powell again refused to leave the site and, without notice, organised a stop-work meeting of workers on the site. He did so by walking around the site yelling out to workers words to the effect, "c'mon guys, stop what you're doing, we're going to have a meeting." The meeting was held on the site between the compound and the emergency assembly area, was attended by about 55 workers, including Curnow, McLeod and the employees of the sub-contractors referred to above. The meeting took place in front of Meuwissen and Cathcart.
49 Not long after the meeting commenced, Powell said to Meuwissen and Cathcart, "We don't really need management at this meeting", to which Cathcart responded, "We are not leaving and it should not take place." Powell said, "We will take it off site then", and organised the workers at the meeting to leave the site. As they left the site, they were informed by Meuwissen that, if they continued with the meeting and did not return to work, by law they had to be docked a minimum of four hours' pay. Once outside site, the workers continued the meeting by congregating around Powell outside gate B. Powell addressed the attendees at the meeting for about 15 minutes. The workers commenced to return to work at about 8.30 am and, I would infer, would have continued to work normally that day were it not for subsequent events involving Powell. Powell himself also returned to the site and asked Meuwissen to allow him to enter the site to undertake a safety inspection. Meuwissen refused Powell entry to the site and asked him to leave. Powell ignored that request, entered the site and began walking around the site taking photographs.
50 At about 8:45 am, while following Powell around the site, Meuwissen received a telephone call from the police to say that they had arrived at the site. He provided directions to the police as to where to enter the site and told Powell that the police had arrived. At about 9:15 am, while Powell was engaged in a telephone conversation, Sergeant Darren Bishop of the Victoria Police asked Powell either to produce a right of entry permit or to leave the site. Powell responded, "I haven't had one for 6 years and I am not likely to get one", and walked a short distance away to use his mobile phone for a further 30 seconds.
51 When Powell had finished his telephone conversation, he and Bishop had the following exchange:
Bishop: You don't have any permits authorising you to be on the site is that right?
Powell: No.
Bishop: Mick you've been asked to leave by these men, I am now requesting you to leave.
Powell: No I'm not going to.
Bishop: If you don't leave you can be arrested for trespass do you understand that?
Powell: Yep.
Bishop: Why don't you just leave the site and make some phone calls off site and get the permits and come back on, what do you say?
Powell: Nah I can't, I can't get a permit I've been declared unfit to be a permit holder.
Bishop: You've been asked to leave by Kane staff and I've now again asked you to leave, we don't need to make it any bigger than it is will you leave.
Powell: Nah, I can't walk off in front of my members.
Bishop: I'll give you one more chance to leave, if you don't the boys here will arrest you and then take you back to the police station do you understand this?
Powell: Yep, do what you've got to do.
Bishop: In that case Mick you're under arrest for trespassing.
This exchange occurred in plain view of a group of about 60 workers that were gathered in the site compound, including those referred to above as having been at the stop-work meeting.
52 At about 9:30 am, a group of about 60 workers, including those referred to above as having been at the stop-work meeting, stopped working and gathered outside gate C of the site. By 10.00 am, most of them had left the site and did not return for the rest of that day.
53 There are two elements to the applicant's allegation that the conduct of the workers on the Aquanation site on 2 April 2014 amounted to industrial action within the meaning of s 19 of the FW Act: first, their stopping of work to attend the stop-work meeting, initially on site and then outside gate B, and secondly, their stopping of work at about 9.30 am and subsequent departure from the site. I accept that, in both respects, this was engagement in industrial action by these workers during the term of the relevant enterprise agreements in contravention of s 417(1) of the FW Act.
54 As to the first element, the industrial action was clearly organised by Powell. So much is admitted on the pleadings. That conclusion is not undermined by the circumstance that Meuwissen told the workers that they would be docked four hours' pay if they attended the meeting outside Gate B. That advice was given prospectively. The certainty of already having lost four hours' pay could not have been an explanation for the decision of any of the workers to attend the meeting. Subject to what I say in the next paragraph below, Powell himself contravened s 417(1) directly.
55 The conclusion that Powell directly contravened s 417(1) does not apply in relation to those of the workers who attended the stop-work meeting, if any, who were employed by IES Commercial Australia Pty Ltd. Since the CFMEU was not covered by the relevant enterprise agreement, Powell was not subject to s 417 under subs (2)(b) thereof. But the employees themselves were covered, and thus subject to s 417 under subs (2)(a). It is submitted on behalf of the applicant that Powell counselled and procured their contraventions within the terms of s 550(2)(a), thereby making him a contravener. Factually, that submission may be accepted: I find that Powell did counsel and procure the conduct of the employees that amounted to contraventions of s 417(1) on their parts. But it was submitted on behalf of the respondents that s 550(2)(a) required, in the facts of the case, that Powell had actual knowledge of every essential element that made the employees' conduct contraventions of s 417(1), and it has not been proved that he knew that they were covered by the enterprise agreements by which they were in fact covered.
56 The legal basis for this submission on behalf of the respondents is uncontroversial: Yorke v Lucas (1985) 158 CLR 661, 666-669.
57 But it was submitted on behalf of the applicant that I should infer that Powell knew that the employees were covered by the relevant enterprise agreements. Counsel for the applicant said:
Apart from the fact that these organisers deal with these workers and the subbies, and that they have enterprise agreements which cover the CFMEU, there's a suggestion that the organisers wouldn't know whether the employees that they are responsible for organising have an enterprise agreement or not. It's an ambitious submission and one that doesn't find any support in industrial reality.
As to the first aspect of this submission, I am, of course, here dealing only with agreements which did not cover the CFMEU. As to the second aspect, this effectively involved the proposition that the court should draw an inference by reference not to the evidence but to some more general intuition based on industrial reality. While there is, of course, every legitimate reason to apply a sense of industrial reality to the disposition of cases in the Fair Work Division of the court, findings of fact must still be based on the evidence, whether those findings be of primary fact or by way of inference. There is nothing to which my attention was drawn in the evidence in this case from which I could infer that Powell knew that employees who were not covered by enterprise agreements which covered the CFMEU were covered by enterprise agreements which did not cover the CFMEU.
58 As to the second element of the applicant's allegation, while it was alleged that Powell organised the stoppage at about 9.30 am and the subsequent departure from the site, no facts were alleged that would have justified such a conclusion. In relevant respects, the case was conducted on the pleadings. I reject this element of the applicant's allegations.
59 In the alternative, it is alleged that Powell was involved in this second element of the industrial action on this site, within the meaning of s 550 of the FW Act. In relation to the employees of IES Commercial Australia Pty Ltd, for reasons given above, the applicant's reliance on s 550 must be rejected: Yorke v Lucas at 669-670. In relation to the employees of sub-contractors who were covered by enterprise agreements by which the CFMEU was also covered, by reason of Powell's position as an employed organiser of the CFMEU, and in the absence of evidence from him, I infer that he did know that those employees were so covered. What follows below deals only with their circumstances.
60 On the facts known to the court (which, as I say, do not go beyond those recounted in the Amended Statement of Claim), it could not be found that Powell aided, abetted, counselled, procured or induced the taking of this industrial action. It is not even known whether he was on the site when it commenced. On behalf of the applicant, it was put that Powell's intention was to be arrested for trespass, and for this to be observed by those working on the site. In the absence of evidence from Powell, I am prepared to infer as much. But that was not enough to bring his conduct within the terms of para (a) or para (b) of s 550(1).
61 Whether it was enough to bring his conduct within the terms of para (c) is a more difficult question. As counsel for the respondents pointed out, that the workers on the site, either of their own accord or encouraged by one or more of their number, reacted to the arrest of Powell by stopping work and leaving the site is a possibility legitimately open on the pleadings and the evidence, such as it is. Had Powell anticipated, or even expected, them to react in that way would not be enough, in my view, to constitute participation, by him, of the kind referred to in para (c). Had the evidence showed that Powell and the workers were party to an understanding, however loose, by which he would be arrested and they would stop-work, he would, in my view, have been indirectly, knowingly, concerned in their contravention. But the facts as established do not go that far.
62 Thus the only contravention of s 417 that I find against Powell relates to the first stop-work meeting at the Aquanation site on 2 April 2014.
63 The next matter to be considered arises under s 557 of the FW Act. That section collapses into a single contravention two or more contraventions of a civil remedy provision if the contraventions are committed by the same person and arise out of the same course of conduct by him or her. There was only one provision of the FW Act which Powell contravened: s 417(1). Factually, there can be no doubt but that his organisation of the industrial action on 2 April 2014 was a single course of conduct, notwithstanding that each worker whose stoppage of work he organised contravened s 417(1) in his or her own right.
64 But, in a submission tentatively made as I perceived it, it was put on behalf of the applicant that Powell engaged in as many courses of conduct as there were in-term enterprise agreements providing the basis for the operation of s 417(1). Here counsel relied on QR Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2010) 204 IR 142 and Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153. In QR, the employer had failed to comply with an obligation to consult arising under 20 collective agreements. The legislative provision which the employer thereby contravened was expressed as follows: "A person must not contravene a term of an agreement-based transitional instrument that applies to the person". Keane CJ and Marshall J said (with the concurrence of Gray J) (204 IR at 163 [48]):
There may be one course of conduct in respect of each agreement associated with the relevant term of each of many agreements. There are, for the purposes of s 557(1), contraventions of multiple terms of multiple agreements. Accordingly, s 557(1) does not avail the appellants.
While it is not entirely clear, it would seem that their Honours regarded the relevant term in each agreement as a separate "civil remedy provision" for the purposes of s 557(1), such that they were not all combined by the subsection.
65 In Rocky Holdings, the employer had failed to pay wages, overtime and other entitlements arising under the National Employment Standards and a modern award, such that there were three contraventions of s 44 of the FW Act and six contraventions of s 45. The Full Court rejected the submission that, because there were only two legislative provisions involved, the effect of s 557(1) was that, if all nine contraventions were indeed part of the same course of conduct, they were reduced to two. Their Honours agreed (221 FCR at 162 [19]) with the reasoning of Logan J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652 at [16] that -
… the course of conduct must be associated with the particularised term of the particularised instrument. That is the contravention of the term of the transitional instrument. One does not look at course of conduct for the purposes of s 557 at a level of abstraction divorced from the contravened provision as particularised (ie the term in question and the transitional instrument in question).
66 In my view, the present case is to be distinguished from the two just referred to. The existence of an in-term enterprise agreement is an element of liability arising under s 417, but the section is not concerned with a contravention of the agreement, or a term of it. The substance of the norm for which the section provides is exactly the same as between two or more employees each of whom is covered by a different enterprise agreement: he or she must not organise or engage in industrial action.
67 I thus hold that Powell contravened s 417(1) once at the Aquanation site on 2 April 2014.
68 Because of Powell's position as an employed organiser, the CFMEU was also a contravener pursuant to s 793(1)(a).
69 At about 11:00 am on 21 May 2014, Powell attended the Aquanation site in company with Peter Clark, an employee of the CFMEU who was an officer or agent of the CFMEU and/or the Branch. The Project Manager for the site, Marco Bonadio, requested Powell and Clark to provide right of entry permits. They refused to do so, asserting that they did not have to do so and were able to enter under the OHS Act. Consequently, at about 11:10 am, Bonadio called the police and, at about 11:35 am, two police officers arrived at the site. Curnow told them that he had invited Powell and Clark on to the site to assist with OHS issues. Powell and Clark were not arrested, and left the site at about 2:55 pm when Curnow himself had to leave.
70 On 22 May 2014, Curnow and McLeod were rostered to perform building work at the Aquanation site. On that day, Kane had engaged a number of sub-contractors to carry out work at the site. Each of those sub-contractors had rostered one or more employees to perform work there as required. The sub-contractors, and the number of employees so rostered in each case, were Aquatic Projects Pty Ltd (2 employees), Brenair Mechanical Services Pty Ltd (4 employees), Design Stainless Industries Pty Ltd (3 employees), Elliot Airconditioning Controls Pty Ltd (1 employee) and Neptune Swimming Pools Pty Ltd (14 employees). In each case, an enterprise agreement made and approved under Pt 2-4 of the FW Act, which had not passed its nominal expiry date, covered the employees concerned in relation to the work done by them at the site. The agreement which covered the employees of Neptune Swimming Pools Pty Ltd also covered the CFMEU.
71 At about 8:00 am on 22 May 2014, Powell and Clark attended the site. Purcell, who was a Project Director for the site, requested Powell to produce a right of entry permit. He refused to do so, asserting that he was attending for occupational health and safety purposes and thereby had a right to enter under the OHS Act. Purcell told Powell that, since he was not going to produce a permit, he had to leave the site. He refused to do so. Because Powell and Clark remained on the site and had not produced right of entry permits, at about 8:10 am Bonadio called the police.
72 At about 10:45 am, five members of Victoria Police arrived at the site and located Powell and Clark with Purcell and Bonadio. In the presence of the police, Bonadio asked Clark to provide a right of entry permit, and he refused to do so, asserting that he had a right to enter the site without producing a permit on the basis that his purpose of entry was to assist Curnow, the health and safety representative. Clark was thereupon arrested and removed from the site. Bonadio and/or Purcell again asked Powell to provide a right of entry permit, and he refused to do so. He was thereupon arrested and removed from the site.
73 At about 11:30 am on 22 May 2014, about 20-30 workers, including Curnow, McLeod and the employees of the sub-contractors referred to above, congregated outside gate C to the site. Meuwissen addressed them, saying, "If you proceed with this meeting and don't go back to work, this would be deemed to be unlawful industrial action under the Fair Work Act and you will be docked four hours' pay." One of those present, an employee of Neptune Swimming Pools Pty Ltd, responded by telling Meuwissen, "Oh yeah, we know that. You don't have to tell us." Following that meeting, most of the workers on the site, including those who had been at the meeting, left the site.
74 The applicant makes no allegation of unlawful conduct on 21 or 22 May 2014 at the Aquanation site.