Australian Building and Construction Commissioner v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

INTRODUCTION 1 This is an application by the Australian Building and Construction Commissioner (the applicant) against Mr Neil O'Brien (the second respondent), who is an official and employee of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the first respondent or CEPU). 2 The applicant alleges that during the course of a short meeting held on 16 September 2013 (the 16 September meeting) between the second respondent, Mr Gel (who is also an official and employee of the first respondent) and Mr Ray Wild and Mr Peter Fitzgerald of Wild Company Pty Ltd (Wild Company or Wild Plumbing), the second respondent made threats with the intent of coercing Wild Company to make an enterprise agreement with the first respondent, in contravention of s 343(1) of the Fair Work Act 2009 (Cth) (the FW Act). 3 The applicant also alleges that the first respondent is taken to have engaged in the contravention of s 343(1) of the FW Act, by operation of ss 363 and 793 of the FW Act. The applicant seeks declarations to that effect and the payment of pecuniary penalties.

Onus of proof 4 When making findings of fact in respect of alleged contraventions of the FW Act, due regard must be had to the gravity of the matters alleged. Section 140 of the Evidence Act 1995 (Cth) provides as follows: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. 5 As Flick J said in Australian Building and Construction Commissioner v Hall [2017] FCA 274 at [18], the Court must "take into account the fact that the contraventions alleged are contraventions of civil remedy provisions of the [FW Act]. They are, accordingly, properly to be regarded as 'quasi-criminal'". Further, the standard of proof referred to in s 140(2) is a re-statement of the standard of proof referred to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. It follows that "[f]indings as to a contravention of the [FW Act] are not findings lightly to be made": Australian Building and Construction Commissioner v Hall [2017] FCA 274 at [19] and [20].

Disputed facts 6 The pleaded threats were the following words alleged to have been spoken by the second respondent at the 16 September meeting: (1) "You will not be doing that job unless you sign this agreement. Wild Plumbing will not get that job if they don't have a union EBA". (2) "We will cripple Wild Plumbing. You will sign, we will force you to sign, we will force the builders not to take you on their works. Because these jobs will be up in the country we will put so much pressure on them in the metro area it won't be viable for them to take you". (3) Mr Wild asked "Are you holding a gun to my head?" and the second respondent allegedly said "Take it whatever way you want". 7 During the trial, the Court heard evidence from the second respondent, Mr Gel, Mr Fitzpatrick and Mr Wild. The applicant also called Mr Ross Dowling, a project manager for Cockram Construction Limited (Cockram), which was the head contractor on a project at the Malmsbury Youth Justice Centre (the MYJC). Mr Dowling was not present at the 16 September meeting, but gave evidence about conversations he had with the second respondent about Wild Company. Each of the second respondent, Mr Gel, Mr Fitzpatrick, Mr Wild and Mr Dowling was cross-examined. The respondents also called Ms Amy Sharpe, who was employed by Fair Work Building and Construction (FWBC), the predecessor agency to the applicant, between 2013 and 2015. 8 The second respondent admitted by his pleading, and he confirmed in his evidence, that Mr Wild said to him "Are you holding a gun to my head?" and that he responded "take it whatever way you want". The second respondent, however, denied that he said the things alleged at para 6(1) and (2) above (the disputed threats). Mr Gel also refuted the allegation that the second respondent made the disputed threats. On the other hand, Mr Wild, and, to a lesser extent, Mr Fitzgerald, gave evidence that the second respondent did say those things, or at least things along those lines. 9 The applicant sought to rely on evidence of communications and events that occurred before and after the 16 September meeting. It is necessary, therefore, to recite the (largely undisputed) history of how the meeting came about and the subsequent events upon which the applicant relies, as well as the differing accounts of what happened at the meeting. 10 I should say immediately that no party sought to advance a submission that any witness told deliberate untruths. For reasons which I explain below, I am not persuaded that the second respondent made the disputed threats. (Unsurprisingly, counsel for the applicant did not submit that the second respondent's admitted response to Mr Wild's question about a metaphorical gun being held to his head - "take it whatever way you want" - of itself constituted an unlawful threat.) 11 Because I am not satisfied that the second respondent made the disputed threats, it is not necessary to address the various legal issues about which submissions were made, including about proof of intent to coerce for the purposes of s 343 of the FW Act, the nature of the action alleged to have been threatened, whether the pleaded disputed threats were unlawful, illegitimate or unconscionable and whether Wild Company had a workplace right to make an enterprise agreement with the first respondent. Counsel agreed that those issues would only arise in the event that I found for the applicant on the disputed facts of the pleaded case. 12 For the reasons set out below, the application will be dismissed.

THE EVIDENCE 13 By early 2013, Bendigo and its environs were experiencing a construction boom. Wild Company was, and is, a large and successful plumbing services business, and has operated out of Bendigo since 1985. As at 2013 it employed more than 80 people. During 2013 it tendered for many of the large construction projects planned for the region. Those projects included a shopping centre in Kangaroo Flat called Lansell Square, the MYJC, the Bendigo Hospital and Loddon Prison in Castlemaine. 14 The largest of the projects was the Bendigo Hospital. During the earlier part of 2013, a plumbing company called Cooke & Dowsett Pty Ltd (Cooke & Dowsett) had tendered for the plumbing and related parts of that contract and it was in the "box seat" for the work. It was looking for a local company to supply labour for the installation work so that it did not have to pay to its own employees a living away from home allowance. Wild Company was in the running for that role during much of 2013. 15 The second respondent and Mr Gel met with Mr Wild around June 2013 and had discussions with him about the possibility of Wild Company signing a regional enterprise bargaining agreement with those of its employees engaged in plumbing-related work. 16 On 13 August 2013, Mr Wild and Mr Fitzpatrick attended a meeting with Mr Paddy McCrudden and Mr Paul Coffey from the first respondent (Mr Coffey was the first respondent's industrial officer, Mr McCrudden was the assistant secretary), and Glenda Hehir from Cooke & Dowsett. The minutes of that meeting record that a number of specific clauses of a draft enterprise agreement were discussed, apparently in some detail. Those clauses included provisions dealing with a 38-hour week, redundancy, superannuation, overtime and various allowances. One of the clauses that was discussed was a "step up clause," a provision that in substance meant that whenever the total value of a project exceeded $30m (as did each of the major projects to which reference has already been made - Lansell Square, the MYJC, the Bendigo Hospital and Loddon Prison), union rates would apply. For projects under that amount, employers were to be free to pay rates that they agreed with their employees. It seems that at this meeting Mr McCrudden agreed, among other things, to make some changes to the proffered draft as result of Mr Wild's input at the meeting, although the evidence does not make clear what the changes were. 17 On 13 September 2013, the second respondent telephoned Mr Dowling. There were two significant plumbing packages for the MYJC project, hydraulics and roofing, which were up for tender at that time. Mr Dowling gave evidence, which the second respondent did not dispute, that the second respondent said to him (as his diary records) that he had "concerns regarding Wild Plumbing and EBA [Enterprise Bargaining Agreement]"; that "Wild Plumbing have an EBA, however will need to ensure that they are paying city rates on the basis of the value of the project"; and that he (the second respondent) "would come back [to Mr Dowling] next week regarding outcome with Wild Plumbing and Bendigo Hospital and outcome with Wild regarding paying higher EBA (city rates)". 18 By September 2013, the first respondent had "signed up" a number of contractors in the Bendigo area to its regional enterprise bargaining agreement. On 16 September, the second respondent and Mr Gel happened to be in Bendigo. For some reason neither the second respondent nor Mr Gel knew about the 13 August meeting between Messrs Coffey, McCrudden, Wild and Fitzpatrick, at which specific clauses of the draft enterprise agreement had been discussed. Mr Gel called Mr Wild and said that the enterprise bargaining agreement that they had been negotiating had been approved by Fair Work Australia. Mr Gel then asked Mr Wild if they could visit him. The second respondent and Mr Gel had a copy of the first respondent's standard enterprise agreement with them at the time. Mr Wild agreed to meet, so the second respondent and Mr Gel went to Wild Company's office.

The 16 September meeting 19 It is uncontroversial that when the second respondent and Mr Gel arrived, Mr Wild greeted them at the reception desk and then escorted them to his office, where Mr Fitzpatrick was waiting. The meeting started with some small talk about an impressively sized fish mount of a Murray cod that Mr Wild had hanging on his wall. Everyone sat down, and either the second respondent or Mr Gel handed to Mr Wild a copy of the enterprise bargaining agreement, the terms of which had been agreed to by Fair Work Australia and by three other contractors in the Bendigo area. The document was in substance identical to the version agreed to by the other contractors, save that hashes occupied the places where the names of the parties, dates, and other details could be inserted.

Mr Wild's evidence about the 16 September meeting 20 In his evidence in chief, Mr Wild gave evidence that the second respondent said to him "if you don't sign, we'll cripple you. You will sign if you want to work in Bendigo or on this project [the MYJC]". Mr Wild also gave evidence that he said to the second respondent "You're holding a gun to my head" and that the second respondent replied "Take it as you please. Take it whichever way you want". At that point Mr Wild said "I think it's time to leave my office. Thanks, gentleman. Out". Mr Wild also said that by the end of the meeting he "was losing patience". 21 On 24 October 2013, Mr Coffey emailed to Mr Wild a copy of an enterprise agreement. Four days later, Mr Wild replied: "Hi, Paul, just received thanks. Will have a read". 22 On 15 November 2013, Mr Wild had a telephone conversation with Mr Dowling about the roofing package at the MYJC. He told Mr Dowling that Wild Company was still working under the Ray Wild Plumbing Agreement 2007-2012. He also said, so Mr Dowling's diary note records him as saying, that "if workers want to sign up to the EBA he will sign up" and that he had "a good working relationship with [the] CEPU, particularly Paddy [McCrudden]…". 23 Almost three months after the 16 September meeting, on 9 December 2013, Mr Wild sent a letter of complaint to FWBC. The letter stated (typographical errors included) as follows: Wild Company is currently working under Employee Collective Agreement 2007-2012 All going well Wild Company will have a new Collective agreement very early next year 2014 Wild's Company's average turnover for the past four years annually of approx $20 million With $20 million turnover Wild requires to operate in excess of 70 tradesman and 12 office staff Wild Company had a verbal agreement with Lend Lease that work on the new BHCG [Bendigo Hospital] site value of $800 million a sufficient amount of the plumbing would be seen by Wild Cooke & Dowsett had a written agreement with Wild Company to move forward on the BHCG site (written agreement was in place when Cooke & Dowsett had agreement with Leighton Construction) When Leighton Constructions were removed form the bid Cooke & Dowsett then signed up to Lend Lease agreement and Wild Company just carried on with their existing agreement tied back with Leighton. CEPU working with Cooke & Dowsett and Wild have been attempting to provide a Regional Agreement with a step up clause at 30 million. All parties have been working towards this agreement for approx 6 months. NOTE: It was always a requirement from Cooke & Dowsett if Wild Company was working on the BHCG site that a CEPU agreement would be in place. Wild has had several meeting with Cooke & Dowsett regarding working together on the BHCG project at no stage was any subject agreed on (just negotiations). On October 30 this year a meeting took place at Cooke & Dowsett office. It was suggested and agreed in principal that Wild Company probably would not be used to any large extent on the BHCG project. Cooke & Dowsett workload was quiet and they required the work to secure their own staff so the hourly rate that might be put forward to Wild was far from what it would cost. No overheads or margins would be paid to Wild Company. It was at this stage it became apparent to myself and Wild Company that we don't see the requirements of moving forward with a CEPU agreement. Not being involved on the hospital site and signing a regional CEPU agreement didn't make good business sense. Over the past couple of months the CEPU have been actively targeting Wild Company in the following ways: To my knowledge Mr Neil Obrien and other members of the CEPU have been meeting with large building companies and speaking about the benefits of not using Wild Company to undertake work on construction sites. Malmsbury Juvenile Justice Project approx value $50 million Lost Builder Cockram Project Manager Ross Dowling Hydraulics worth app $ 2 Million

BHCG 120 room Motel Bendigo Lost Builder Hickory Group Project Manager Travis Budd Hydraulics worth app $500,000

Bendigo Theatre NOTE: Wild Company is undertaking this project Builder Contract Control Director Stefan Seketa Roofing with approx $500,000

BHCG 120 room Motel Bendigo Lost Builder Hickory Group Project Manager Travis Budd Roofing worth approx $90,000

Malmsbury Juvenile Justice Project approx value $50 million Lost Builder Cockram Project Manager Ross Dowling Roofing worth approx $2.2 Million

Loddon Prison NOTE: Wild Company is undertaking this project Builder Kane Construction Project Manager Mick Josey Hydraulic & Roofing $ 4.5 Million

Lansel Plaza Kangaroo Flat Under review Builder Hacer Group Project Manager Clint Cassar Hydraulic & Roofing $2.5 Million

24 Mr Wild made no mention in that letter of the 16 September meeting, or of any threats made by the second respondent. 25 Mr Wild first mentioned the disputed threats on 10 December 2013, when he and Mr Fitzpatrick met with Amy Sharpe at FWBC. The meeting was recorded and a transcript of the recording was tendered in evidence. 26 For reasons that are not easy to fathom, Ms Sharpe sought to obtain evidence from Messrs Wild and Fitzpatrick in round table discussion, which she referred to as a "conversation" to "discuss…some issues that Wild Plumbing has been having with CEPU here in Bendigo". At that point, it is reasonable to infer that Ms Sharpe's understanding of the "issues Wild Plumbing was having with the CEPU" related to the complaint that Mr Wild had made in his 9 December 2013 letter that the second respondent and others had "been meeting with large building companies and speaking about the benefits of not using Wild Company to undertake work on construction sites" and that Wild Company was losing work as a result. 27 Ms Sharpe introduced the meeting by saying "…like as I said off the tapes the questions that we'll be asking are about what's happened to your company. They'll be recorded on the tape and what we'll do is look to make a statement based on the information that's provided today". Messrs Wild and Fitzpatrick agreed to proceed on that basis. 28 The conversation with Ms Sharpe included the exchanges set out below. I set the relevant exchanges out in some detail, among other reasons, because, as I will explain later, it is apparent from the italicised portions of the exchanges set out below that Mr Wild's recollection of the 16 September meeting was not good, even then, and that critical parts of the version of events that emerged from the conversation were the result of Mr Wild having sought information and reassurance from others (in particular, Mr Fitzpatrick). 29 The relevant exchanges are as follows: [RW] [Mr Wild]…so it became even more apparent that there's no use for Wild Plumbing or Wild Company waiting for the Hospital to start in Bendigo. So, Peter and I have had a few discussions over that and then the union probably felt that Wild Company was drifting away from their grasp and they started getting into large projects that we are tendering and saying to the builders that "Wild Company, it would be advisable if Wild Company had a Union EBA". [AS] [Ms Sharpe] Yep. [RW] So, have I missed anything from there Peter? [PF] [Mr Fitzpatrick] No. We were probably getting pressure on some of those sites, before October the 30th. [RW] Yes, we were getting a little bit of pressure. You knew Ron - [PF] The builders were getting pressure. [RW] Beg your pardon? [PF] The builders were getting pressure… … [RW] As Peter said we were probably getting some pressure as early as three or four months ago to join the union. We had a couple of organisers in here, Neil O'Brien. You can't think of his name Peter? [PF] No. [RW] I'll have his business card up there. Neil O'Brien and somebody. And Neil O'Brien threatened that they would cripple Wild Plumbing and this was the first time and best time to catch him after 12 years from being away from the union. I suggested to Neil O'Brien if you want to play Russian Roulette lets go now, you pull the trigger and you won't catch me again. And he said "You will sign, we will force you to sign, we will force the builders not to take you on their works, because if these jobs might be up here in the country, we will put so much heat on them in the metro area it won't be viable for them to take you". With that I showed him the door fairly quickly. [RW] And it's been said "you will sign the agreement and you will sign the agreement that's in front of you now". So, as of today's date we still haven't told the union were not signing, but it's quite obvious we're not. [AS] Yep. [RW] They probably have got that impression and they have stopped us on several sites over the last three or four months to the tune of probably five or six million, which in return is - were a $20M turnover a year, so five to six is a third of our turnover and we're starting to suffer the consequences now with staff. [AS] Yep, okay. … [AS] OK. And the work you're mainly doing where you're having these issues is where? Where is the work? [RW] We work Regional Victoria, rarely go into Melbourne, so where we're having issues in Regional Victoria. I can give you the names of the sites specific, but it's Regional Victoria. … [PF] They come here and put pressure on us to sign that agreement that day and that's when Ray politely showed them the door. [RW] You were in that meeting? [PF] Yes. [RW] Yep. [PF] Yep. [RW] So I didn't exaggerate. … [PF] Neil said "you will not be doing that job unless you sign this agreement". [AS] Okay. [PF] And he was quite … about that. [AS] Okay, so can you tell me some more specifics of, who else at that meeting? So, it was you and Ray, Neil, the other guy that - [PF] Yep, the other union representative … which I think Ray has just gone to get his name. [AS] Yep and it was just the four of you? [PF] Look they come up and sign us up for the union EBA in anticipation that they we're going to win the Malmsbury project through the builders. … [AS] Yep [PF] And they wanted an EBA plumber on that site. [AS] Okay. [PF] And he quite clearly said "you won't be working on that site". [RW] Is that in my office? [PF] Yep [RW] Adrian Gell [sic] is the organiser. [AS] Yep. [RW] Can I jump in? [AS] Yep [RW] So in that meeting Adrian Gell [sic] and Neil O'Brien had an argument about Wild Plumbing. Adrian… said "how can you get Wild Plumbing to do this when they already pay above the regional agreement now". So, those two definitely had an argument in there, but Neil was the forceful one and said he'll look after the situation. [AS] Okay. What else did you hear Neil or Adrian say in that meeting? [PF] I'm not sure which one, it was probably Neil or it could have been Adrian, halfway through the meeting one of them said "let's go, they're not going to sign this agreement, stuff them". [AS] Yep. [PF] The conversation did continue on for a little bit after that, but it wasn't long after that the meeting did conclude. [AS] Okay. You mentioned before that you said that they were threatening, that they were going to stop Wild working. [PF] No they said that Wild Plumbing will not get that job if they don't have any union EBA. … [PF]…And to my understanding we have been hurt directly by the union on that site. [RW] No. Hold back up. I think you were …in a meeting with me. Cooke & Dowsett and Wild have had two meetings at the union office Melbourne. How many have you attended? [PF] One. [RW] One. It was definitely said to Wild Plumbing very early in the year and I won't be able to give you a date. [AS] I was going to say we need the dates. [RW] "That if you sign that regional agreement, we will let run all your existing work out under your old LK170 or LK120, we'll let you run it out and it will only be new work from here on in". And I said "right, we've got jobs under tender, which would be Castlemaine, no we're on Castlemaine, under construction", they said "no, we'll let you run that out, because we've got stuff under tender on Malmsbury Juvenile and Hacer Group, I won't say Hacer, because we don't know if its Haver at the moment"- [PF] Lansell Plaza. [RW] Lansell. Plaza. We knew about those, plus other jobs and they said "look, let's talk about it when we get closer, but yes we think we can turn a blind eye to that," that's what they said. [AS] Who was at those meetings? [RW] First meeting was Paddy McCrudden only. [AS] Yes and who from Wild? [RW] Me [AS] Just you? [RW] Yep. [AS] Okay. And was anyone from Cooke & Dowsett there? [RW] No, not at that one. [AS] Yep. And the second one? [RW] There was Peter and myself, Glenda, which would be Cooke & Dowsett's secretary. [AS] Yep. [RW] Paddy and Paul Coffey. Was that not discussed - [PF] That was also discussed here with Neil and - [RW] Hang on, we'll get to them in a minute. Was it discussed in our meeting when five of us that we would run out our jobs under the existing agreement? [PF] I can't confirm 100%. [RW] Move on, I'm not worried. [RW] But what was said here at our meeting with O'Brien and - [PF] There's no doubt it was mentioned then… and they didn't seem to think that it would be a major issue that it had to be negotiated that they could understand the current projects that were on that they possibly let those ones go, run their course. [AS] Okay [PF] And we stated to them that we had live tenders out on Malmsbury and on Lansell's, that we were locked in at our current rates on those projects. [AS] Okay. … [AS] Okay. So, can you give me an overall summary of what the impacts to your business have been from this? [RW] As per the letter I drafter earlier today, I think it's quite obvious there that we've missed somewhere between $5-6,000,000 worth of work that we've been shortlisted to in the last 90 days, which is a third of our turnover in a quarter of a year. Wild Plumbing will suffer the consequence with the staff. Can't maintain the levels of where we are at the moment. We have been putting off and we will be putting off prior to Christmas, hence the reason we ask - FairWork in here two months ago, because I could see it coming. … 30 The next day Mr Wild signed a statement "prepared…based on the information [he] provided on [sic] and…true to the best of [his] recollection". The statement relevantly said: 48. On 16 September 2013 two CEPU organisers Neil O'Brien (O'Brien) and Adrian Gell (Gell) [sic] came into the Wild offices to talk about the CEPU REBA. The meeting was in my office with Fitzpatrick from Wild plumbing there too. Gell [sic] has been around for the last three or four years, but really only appearing regularly in the last 18 months. I've known O'Brien for about that time as well. I know them because they have been in here to talk about Wild signing an EBA. They call in say, every four months. 49. Again, I think it was O'Brien that said "if you sign the REBA we will let you continue with all tenders you already have out and this won't kick in. We can turn a blind eye to those." I specifically said "we have jobs in with the Lansell Plaza Hacer job and the MJJC and a couple of others in the pipeline." 50. I turned around in my chair and picked up a copy of the draft REBA I had been working on with Cooke & Dowsett. I said "here is the EBA now, you still have the wrong information in here. I can't sign it unless we have the right information in here." O'Brien said "sign it we'll rectify it later." I said "I can't sign it until we are happy and it's finalised." 51. O'Brien said "We will cripple Wild Plumbing." O'Brien said "You will sign, we will force you to sign, we will force the builders not to take you on their works. Because these jobs will be up in the country we will put so much pressure on them in the metro area it won't be viable for them to take you." I said "are you holding a gun to my head?" O'Brien said "take it whatever way you want." 52. In this meeting there was also an argument between O'Brien and Gell [sic]. Gell [sic] said "How can you get Wild to do this, when they already pay above the regional CEPU agreement for tier 2 jobs." O'Brien said "I'll look after this situation." I showed both of them the door fairly quickly after this and they left the offices. 53. The meeting probably lasted probably no longer than 10 minutes.

Ms Sharpe's evidence 31 By early February 2015, FWBC had not progressed Mr Wild's complaints. At that time Mr Wild telephoned Ms Sharpe. Ms Sharpe summarised the content of telephone messages left by Mr Wild and the content of a telephone conversation she had with him in an email to her superior in these terms: …I spoke to Ray [Wild] several weeks ago and gave him an update…Ray phoned me back the next week to discuss his issues with it, because he didn't see any value in it for the business in it being pursued…I had two phone messages…When I [returned them], Ray was quite abusive…[He] said that because Wild [Company] were not getting anything directly from it he didn't see the point in proceeding with it anymore…When I was talking to Ray…he wanted to know how much money Wild would get for it, whether or not they would get the jobs back…Ray was unhappy with the answers I provided then, again because they didn't directly benefit Wild [Company]. 32 She was not cross-examined by the applicant in relation to her evidence, in which she described Mr Wild's "tone" during their telephone conversation as "loud and rude and belligerent". Mr Wild gave evidence that he had no recollection of having made the calls, but did not deny having made them. The applicant accepted the truth of Ms Sharpe's evidence. 33 This proceeding was commenced almost one year later, in January 2016.

Mr Fitzpatrick's evidence about the 16 September meeting 34 Mr Fitzpatrick's evidence before me about the 16 September meeting was limited. As to the making of any threats, his evidence in chief was that: …it's vague in my memory, but I do believe Neil [O'Brien] was saying, "I don't care about those [other, earlier meetings]. I want you to sign this agreement". And he was very blunt on - I can remember, "If you do not sign this agreement you will not be doing the Malmsbury Juvenile project". 35 During their conversation at FWBC, Ms Sharpe said to Mr Fitzpatrick: "You mentioned before that you said that they were threatening that they [the first respondent] were going to stop Wild working". Mr Fitzpatrick replied: "No, they said that Wild Plumbing will not get that job if they don't have any union EBA". 36 Mr Fitzpatrick also provided a statement to FWBC, prepared "…based on the information provided [to Ms Sharpe]" and "true to the best of [Mr Fitzpatrick's] recollection". 37 The statement relevantly said: 18. On Monday 16 September the CEPU came to the Wild offices. We were in the running for the job at the MJJC [Malmsbury Juvenile Justice Centre] and it was over the $30 million dollar build. 19. There were four of us in that meeting. There was Neil and Adrian Gell [sic] (Adrian) from the CEPU, Ray and myself, and we were all in Ray's office at Wild Plumbing. 20. …There was a discussion about what would happen to existing Wild work we had that was over the $30million dollar mark and Neil said we could turn a blind eye to that, it'll only be for new work that you get in" [sic]. 21. During this meeting Neil said "You will not be doing that job unless you sign this agreement". He was quite blunt about that. Neil said "Wild plumbing will not get that job if they don't have a union EBA." 22. The conversation got heated. I remember Adrian saying "Let's go, they're not going to sign this agreement, stuff them". The conversation did continue on a little bit after that but it wasn't long after that, that the meeting did conclude and Ray showed them the door. I think the meeting went for about 15 minutes to half an hour.

The second respondent's evidence about the 16 September meeting 38 The second respondent gave evidence that, after pleasantries were exchanged and Mr Wild was given a copy of the enterprise bargaining agreement, Mr Wild "flicked though" it and noted that "the rates were very close to his". Mr Wild also said that he could not sign it because there were some errors in it, or "typos", which, the second respondent said, had something to do with "the radius around Bendigo" to which the document would apply. The second respondent gave evidence that Mr Wild then said that "he would only pay the city rates…if he got on the Bendigo Hospital job" and that the agreement should not have applied to any of the other jobs that Wild Company had tendered for, including the MYJC, Lansell Square shopping centre and the Bendigo Hospital Hotel. On the second respondent's account, he replied to Mr Wild: "…your existing jobs…Castlemaine's Prison…Echuca Hospital… we wouldn't expect you to pay increases to your workers. [But]…the ones that you've got tenders on for would have to…fall under the conditions of the EBA". 39 When asked why that was the first respondent's position, the second respondent said: "Well, we've got other companies in the area that have signed that agreement. I couldn't give Ray Wild…an advantage over other contractors that had signed a union document. And that's not the way we operate". 40 The second respondent denied Mr Wild's evidence that he ever said that he would "turn a blind eye" to the jobs which Wild Company had tendered for in the event that those tenders were accepted. He said he had "never used the phrase ever in [his] life" and that "[i]t's not something that [he] would say". When asked why he could not "turn a blind eye" to those tenders, the second respondent said "because we had other companies that were possibly tendering that work…so we couldn't - you know, the union's not about giving one person an advantage over somebody else…". 41 The following exchange also occurred between the second respondent and his counsel: Counsel:…what were the words you used? --- Just that the - the - the Bendigo contractors that have signed our agreements, the members of those contractors - we will be trying to keep them employed, keep our members working. If Ray didn't want to sign the agreement, that's fine; but my job as a union official, and Adrian's job, is to keep our members working and our - and our contractors employed. And how did Mr Wild react to that? --- Well, he wasn't too happy with it. Why do you say that? --- He - look… he just thought that the union was being - being unreasonable. What did he say? --- I said that we had - we had some good relations with some of those building contractors that come to Melbourne - coming up from Melbourne. I said you know, I've worked with them since 2001, so ..... you know, we - we do form good relationships with builders. I told him that we had good relationships with those builders, and we would be trying to seek work for our members on those projects ..... he took offence to those comments. And what makes you say that he took offence? --- He made a comment about putting a gun to his head. And what did you say to that? --- I just said take that whatever way you want to take it. What happened after that? --- Pretty much that was the end of the meeting. Myself and Adrian left. 42 I then asked the second respondent about the "put a gun to your head" comment. He replied: …When I said to him that we would be trying to pursue those jobs for our members and our contractors that - that were going for those jobs, potentially could win those jobs and I mentioned that we had good relations with those building companies that came - that were coming up from Melbourne … worked with them day in, day out - I've worked with them for the last 16 years. He - he took offence to that and said to me what, are you trying to put a gun to my head? And I just said - said no. We - you can take that comment whatever way you want to take it. 43 The second respondent's evidence continued: Counsel: Can you describe, Mr O'Brien, the state of mind you were in at the meeting? --- Look, I've been doing this job for 17, 16 years. I've seen it all. I mean, it's pretty relaxed, pretty - pretty calm. I've seen - I've seen - you know, I've seen it all. What about at the point where you say you referred to your job being to look after your members and help get them work on those jobs. Why did you say that at that point? --- That's all I'm paid to do. We're employed by the union. My job is to keep our contractors employed, to keep our members getting a wage. That's what - that's what my job details. And why did you make that point to Ray Wild at that particular point in your discussion with him? --- Look, if Ray didn't want to sign the agreement, that's fine. But I was going to lobby, and I wanted Ray to know that I would be lobbying those builders, I would be speaking to them about using union labour on their projects. I made that point to Ray, and then pretty much, yes, just made that comment that that's what we would be doing, that's what I'm employed to do. That's what we do, day in, day out. That's what the union movement does. That's what we all do. And how would you describe your intention, Mr O'Brien, in making that point? What were you trying to get across or achieve? --- If Ray didn't want to sign the agreement at that point it really didn't bother me. We've got a lot of good contractors in that area. We were going to support them. And, really, that's about - you know, that's about all we were trying to achieve, really, and I didn't think Ray was going to sign the agreement anyway. But when we first walked in, he sort of looked like he had been, you know, for a long time not really interested in it. I think he was just - just going along with it, you know. Were you trying to force him to enter into an agreement with the union? --- No, no. Look, again, if Ray wanted to sign the agreement, that's great. The unions get maybe 50 guys in the - in the union out of it, right. They get a pay rise. The boys will get a pay rise if they got on the hospital job. In actual fact, the other jobs that - the other jobs under $30 million, Ray Wild's rates were better than the union's rates. So did trying to take away any choice he had form any part of your reasons for saying what you said in that meeting? --- No, no, no. I didn't try to force Ray into signing the agreement and wasn't making it like there was a choice to be made. I was probably stating that what we do for a living - our - our job is to get the guys and the companies and the women - there's a lot of women plumbers - that sign our EBA, our members. That's what it's purely all about. That's what I'm employed to do and I've been doing it for 17 years. 44 In cross-examination the second respondent denied that he said to Messrs Wild and Fitzpatrick "[w]e will cripple you and you must sign and agree". The second respondent said that he "never made that comment". The second respondent agreed that he had said that he had very good relations with building companies that were coming up to Bendigo from Melbourne and that he was "lobbying" builders "for our union contractors to win work on those projects". But he denied that he said those things "to put pressure on Mr Wild to change his position about the enterprise agreement", because "[o]ur enterprise agreement was already signed by other contractors we would not change it". 45 The following exchange occurred between senior counsel for the applicant and the second respondent in cross-examination: Counsel: You wanted Mr Wild to feel pressure so he would agree to the standard agreement which other contractors had? --- No, not particularly. No. Did it take you aback when he said, "Are you holding a gun to my head"? --- It was a phrase he used; I responded. You didn't try and calm him down, did you, Mr O'Brien? --- "Mr Wild is a very big forceful man. I mean, really". You said to him, "Take it whatever you want", didn't you? --- It's an expression. Yes. Yes. You didn't try and calm him down and say, "Don't be ridiculous. I don't understand what you're saying". You didn't take issue with the words he used, did you? --- Look, I have been doing this job for a long time and I have heard it all said to me. And you well knew, because you have been doing the job for a long time, that Mr Wild was feeling pressured by you to agree to the standard form CPU agreement? --- I don't believe I was putting undue pressure on Mr Wild. But you did want him to change his position, didn't you? --- We'd like him to sign the agreement, that's for sure. Thank you. Your response to him was, "Take it whatever way you want"; that's correct? I have asked you that, I know, a number of times? --- Yes. Yes. You didn't say to him, "No. Take it how you want". You didn't say the word "no" to him, did you? --- I said, "Take it the way you want". HIS HONOUR: Mr O'Brien, when you said "Take it the way you want", what was the "it" that you had in mind? --- Well, he was saying, your Honour, "Are you putting a gun to my head?" and I have only heard that saying ever said in movies and I just responded in, "Well, you can take that whatever way you want to take it". There was no malice in it. I didn't expect those words to come out of his mouth to be quite honest; putting a gun to his head. I mean, I wasn't putting a gun to his head. We have a standard document that other companies in the Bendigo region had signed. I couldn't change and get him an extra - a special document. He would have an unfair advantage over the other companies in the region. He was asking for something the union couldn't move on, your Honour.

Mr Gel's evidence about the 16 September meeting 46 The respondents also called Mr Gel to give evidence. His recollection of the events was, he readily conceded, very poor and his evidence about the 16 September meeting is of little assistance to the Court, as the respondents conceded in their written closing submissions. 47 During cross-examination, senior counsel for the applicant put to Mr Gel that the 16 September meeting "sticks in your brain a bit" (an expression Mr Gel had used a moment before) because "…in fact Mr O'Brien threatened Ray Wild at this meeting and said that the union was going to cripple him…That's what you remember, isn't it, Mr Gel?". Mr Gel replied: "That's a ridiculous thing to say. I've been in dozens and dozens and dozens of meetings with Neil O'Brien. It's not in his character. He doesn't do that".

Mr Dowling's evidence 48 Mr Dowling also gave a statement to FWBC in April 2014. The statement, which was tendered by the respondents, dealt mainly with dealings between Wild Plumbing and Mr Dowling about the hydraulics and roofing packages at the MYJC. The statement refers to conversations between Mr Dowling and the second respondent, but does not refer to Mr Dowling's diary notes of those conversations. Those diary notes were tendered in evidence at the trial. The applicant sought to place some reliance on them. 49 The diary notes recorded the substance of the matters that the second respondent told Mr Dowling that he (Mr Dowling) regarded as important. 50 Mr Dowling's diary entry for 21 November 2013 records that he received a telephone call from the second respondent that day "regarding that we [Cockram] are going to give Wild Plumbing the roofing package". The note goes on to say that the second respondent "confirmed that the CEPU hates Wild Plumbing due to their CFMEU cladding agreement" and "confirmed that if we sign up Wild Plumbing all the goodwill will be thrown out the window and there will be no more favours. According to Neil he did Cockram a lot of favours at Costco as well as Box Hill". Mr Dowling confirmed that the conversation included the substance of what he recorded in his diary entry. 51 On 25 November 2013, Mr Dowling received an email from Mr Gurr, his direct manager at Cockram, saying: "hold off on Wild…Looks like we got the Union's interest… [two other Cockram employees] have a meeting in the Union office this afternoon over a separate issue, no doubt it will be discussed in some way, we will then either cave in or go with Wild". 52 Mr Dowling met with the second respondent and Mr Gel at the MYJC site on 4 December 2013. Mr Dowling's diary entry records, and his testimony confirmed, that their conversation included the following: "…we discussed where the roofing package was. I confirmed that we are still working through the vetting process and we have completed a tender interview with Watershed [Commercial Roofing]". The note continued: "Both Adrian [Gel] and Neil [O'Brien] confirmed that [Cockram] would have no issues on MYJC if any one apart from Wild Plumbing was awarded the project". 53 Mr Dowling then wrote an email to Mr Gurr saying: "Just keeping you in the loop, had my mates from the CEPU on site today, Neil O'Brien and Adrian Geil [sic]. No issues, they both confirmed that if we sign up any one other than WILD there will be zero issues on the project". 54 In his statement to FWBC, Mr Dowling said the following about the 4 December 2013 meeting: On 4 December 2013, I had an informal discussion with Neil and Adrian Gell [sic] (Adrian) of the CEPU, on site. I had not met Adrian prior to my involvement in MYJC project and I'm not aware of what his role is within the CEPU. We discussed works on site and generally how the job was progressing. We also discussed the roofing package and I confirmed that we are currently still vetting prices with a view to making a decision by the end of the week. I recall that Neil said something like "Cockram would have no issues on the MYJC Project if anyone other than Wild Plumbing was awarded the project." I don't know exactly what he meant by this and I did not ask. I did not regard it as a threat. Neil and Adrian both signed the visitor sign in book on site.

The second respondent's evidence about his conversations with Mr Dowling 55 The second respondent was cross-examined about his conversations with Mr Dowling. Other than denying that he used the word "hate" to describe his attitude towards or of Wild Company, he either substantially agreed with or did not seek to dispute Mr Dowling's evidence.

CONSIDERATION 56 I am unable to accept that the applicant has proved, to the standard required, that the second respondent made the disputed threats. I am, on the contrary, of the view that he did not make those disputed threats. 57 It is readily to be accepted that the assessment of the demeanour of a witness can be fraught with risks, especially when assessing where the truth lies about who said what to whom in a meeting that lasted no more than 10 minutes, about an exchange that itself could have lasted no more than one minute, three-and-a-half years ago, in circumstances where no one made a contemporaneous note of it: see generally Fox v Percy (2003) 214 CLR 118 at 118-129 per Gleeson CJ, Gummow and Kirby JJ. That said, I found the second respondent to be an impressive and credible witness. 58 The applicant submitted that I should find to the contrary. It submitted, for example, that it was significant that Mr Wild told Mr Dowling that he "hated" Wild Plumbing. But even if he had said that to Mr Dowling (something the second respondent denied), and even accepting for the sake of the argument that he had some "animus", as senior counsel for the applicant put it, towards Wild Plumbing, that does not make it any more or less likely that the second respondent made the disputed threats. In any event, Mr Dowling's diary entry makes it clear that the supposed "hate" for Wild Plumbing was "due to their CFMEU cladding agreement". Quite what that means remains a mystery, because the matter was not explored with either Mr Dowling or the second respondent. Whatever it means - whatever "animus" the second respondent is recorded as having expressed - there is not sufficient evidence to enable me to conclude that it was "due to" Wild Plumbing refusing to enter into an enterprise bargaining agreement approved by the first respondent, or anything of the sort. 59 The applicant also relied on Mr Dowling's evidence - senior counsel for the applicant went as far as to say it was "very important" - because his version of his communications with the second respondent "are supportive of and consistent with the version of events we are submitting occurred on 16 September" because "conduct of that general type…is exemplified by those communications". In response to a question from me, senior counsel for the applicant said that by "conduct of that general type" he meant "interfering with the builder's choice or unrestrained choice about the use of Wild Company". The difficulty with that submission is that unless unlawful means are used to "interfere" with that "choice" (an allegation not made in this case) that is no more or less than a description of what the second respondent was entitled to do. And it is precisely what the second respondent said he was doing when he gave evidence that he "didn't try to force [Mr Wild] into signing the agreement and wasn't making it like there was a choice to be made. I was probably stating that what we do for a living - our - our job is to get the guys and the companies and the women…that sign our EBA, our members. That's what it's purely all about. That's what I'm employed to do and I've been doing it for 17 years". 60 A further difficulty with the applicant's submissions about the importance of Mr Dowling's evidence is that Mr Dowling said that he did not know what the second respondent meant when he said that "Cockram would have no issues on the MYJC Project if anyone other than Wild Plumbing was awarded the project", but whatever it meant, he did not regard it as a threat. 61 For those reasons, I am not persuaded that any of the things that Mr Dowling says the second respondent told him make any more probable either version of the 16 September meeting. 62 The applicant also submitted that it was of some significance that the second respondent did not attempt to calm Mr Wild down when he said "Are you putting a gun to my head?" I am not sure why the second respondent should have sought to do so, but, as the second respondent said when he was cross-examined about it, "Mr Wild is a very big forceful man. I mean, really". I also accept the second respondent's evidence that when he said "well you can take it any way you want to take it" he intended "no malice". The second respondent said he had not "expect[ed] those words to come out of his mouth, to be honest". In those circumstances, there is considerable force in the respondents' submission that Mr Wild's response was an "overreaction", not a reaction to the alleged disputed threats. There is also, if I may say so, some force in Mr Gel's spontaneous statement in cross-examination that it was "ridiculous" to say that the second respondent had threatened to "cripple" Wild Plumbing, because "[i]t's not in his character. He doesn't do that". 63 Weighing the probabilities in the balance, I prefer the second respondent's evidence in relation to the critical and disputed aspects of the 16 September meeting, for these further reasons. 64 To his credit, Mr Wild accepted that even in December 2013 he was unable to give a word for word account of the 16 September meeting and that his memory had "wavered". He could hardly have said otherwise, given the obvious lack of recall demonstrated by the italicised portions of the transcript of the conversation with Ms Sharpe set out above. More importantly, however, neither Mr Wild nor Mr Fitzpatrick has ever been able to provide a consistent version of the disputed threats. In the course of his conversation with Ms Sharpe, for example, Mr Wild said that he "suggested to Neil O'Brien if you want to play Russian Roulette let's go now, you pull the trigger and you won't catch me again". The "Russian Roulette" language did not again see the light of day. 65 Secondly, Mr Fitzpatrick conceded during the meeting with FWBC that the second respondent had not made a threat at the 16 September meeting. Ms Sharpe said to him: "You mentioned before that you said that they were threatening that they [the first respondent] were going to stop Wild working". Mr Fitzpatrick said that that was not what he had said or meant, replying: "No, they said that Wild Plumbing will not get that job if they don't have any union EBA". Further, Mr Fitzpatrick's version of events does not refer to the second respondent having said that he would "cripple" Wild Plumbing, force Mr Wild to sign the agreement or force builders not to accept tenders from Wild Plumbing. As to the use of the word "cripple", Mr Fitzpatrick did say in the course of being re-examined that "I can recall that it had been said that it being said that 'the builders will get that much pressure, we will not allow them to take you,' and it will cripple us". Mr Fitzpatrick had never before used the word "cripple" in any version of the events he gave; and the answer (on which the applicant relies in support of the submission that I should accept Mr Wild's version of the relevant events) makes little grammatical sense. In any event, even if it is to be read as supporting the making of the disputed threats, I would not accept the evidence as being sufficiently reliable, because Mr Fitzpatrick had never before made that assertion. 66 Thirdly, Mr Wild made no complaint at all about the 16 September meeting on at least two occasions when, if the disputed threats had been made, one would have expected him to have done so. The first such occasion occurred on the day after the 16 September meeting, when Mr Coffey emailed to Mr Wild a copy of a form of enterprise agreement. In his response sent a few days later, Mr Wild made no mention of any threats. Instead, he replied politely "Hi Paul, just received thanks. Will have a read". 67 The second occasion for Mr Wild to make a complaint was in his 9 December 2013 letter to FWBC. The letter explains that the first respondent "had been working with Cooke & Dowsett and Wild [Company]"; that the parties had "been attempting to provide a Regional Agreement with a step up clause at 30 million"; and had "been working towards this agreement for [approximately] 6 months". The letter went on to say that "Cooke & Dowsett ha[d] always insisted that if Wild Company was working on the Bendigo Hospital site that it was necessary for a CEPU agreement to be in place". The principal concern articulated in that letter was Mr Wild's belief that Wild Company had lost tenders because the first respondent "[had] been meeting with large building companies and speaking about the benefits of not using Wild Company to undertake work on construction sites". There is not a word in that letter about the 16 September meeting, let alone of any threats made during it. Mr Wild had also told Mr Dowling about three weeks before writing that letter that "if workers want to sign the EBA he will sign up" and that he had "a good working relationship with CEPU". Those statements are also inconsistent with Mr Wild having been threatened by the first respondent two months earlier. 68 Fourthly, it is not disputed that Mr Wild lost interest in pursuing any claim against the first respondent or second respondent once he knew that whatever action the applicant was then contemplating to take would not result in the payment of compensation to the Wild Company. 69 Fifthly, it is not disputed that Mr Wild knew that the first respondent had already signed up a number of Wild Company's competitors to their enterprise bargaining agreement for projects in and around Bendigo worth more than $30m, and would likely sign up more in the near future. In those circumstances, it is not difficult to accept, and I do accept, the second respondent's evidence that he was not in a position to do favours for Wild Plumbing that he had not extended, and would not extend, to its competitors. 70 The applicant submitted that I should find that Mr Wild had already agreed with Mr McCrudden and Mr Coffey at a meeting held earlier in 2013 that a term of any Wild Company enterprise bargaining agreement to be signed was to include a term that the "step-up clause" would not apply to jobs in respect of which Wild Company had already submitted tenders. This, it was contended, made improbable the second respondent's evidence that Mr Wild's principal complaint in relation to the agreement at the 16 September meeting involved mere "typos", as the second respondent swore. 71 Elsewhere the applicant contended that "[w]hether or not the oral agreement was that the exemptions to the step-up clause would apply only to jobs on which work had been awarded, or would also apply to jobs for which Wild Plumbing had tendered but not yet been awarded, may be a distraction". Whether it is a distraction or not, I do not accept that any agreement had been reached beyond an agreement that any enterprise agreement would not apply to existing Wild Company projects. 72 It is clear from the transcript of their conversation with Ms Sharpe, that neither Mr Wild nor Mr Fitzpatrick contended in December 2013 that an agreement had been reached about exempting jobs that had been tendered for. They made it clear then that that matter was the subject of ongoing negotiations and had not yet been agreed. Mr Wild, for example, told Ms Sharpe that "very early in the year" he had said to whichever officials of the first respondent he had met with (it is not clear who) "'we've got jobs under tender'…and they said 'look, let's talk about it when we get closer, but yes we think we can turn a blind eye to that, that's what they said'". Mr Fitzpatrick told Ms Sharpe that "running out our jobs under the existing agreement" was "mentioned" and "they didn't seem to think that it would be a major issue that it had to be negotiated that they would understand the current projects that were on that they possibly let those ones go, run their course". That evidence only refers to existing jobs and does not even mention any agreement to negotiate or negotiations about the position with respect to works already tendered for. Mr Fitzpatrick's FWBC statement is also consistent with that description of the state of negotiations. In that statement he said: "[t]here was a discussion about what would happen to existing Wild work we had that was over the $30million dollar mark and Neil said we could turn a blind eye to that, it'll only be for new work that you get in". Further, Mr Wild's FWBC statement was inconsistent with what he had told Ms Sharpe during their conversation. The statement says that the second respondent had said "if you sign the REBA we will let you continue with all tenders you already have out and this won't kick in. We can turn a blind eye to those". Because that evidence is inconsistent with what Mr Wild told Ms Sharpe the day before (especially his assertion that he had been told "let's talk about it when we get closer") and is inconsistent with Mr Fitzpatrick's evidence - and was denied by the second respondent - I do not accept it. 73 The second respondent said in his oral testimony that: …if Ray [Wild] didn't want to sign the agreement, that's fine. But I was going to lobby, and I wanted Ray to know that I would be lobbying those builders, I would be speaking to them about using union labour on their projects. I made that point to Ray, and then pretty much, yes, just made that comment that that's what we would be doing, that's what I'm employed to do. That's what we do, day in, day out. That's what the union movement does. That's what we all do. 74 It seems to me, ultimately, that it was this insistence that the second respondent would be lobbying builders to prefer union contractors on the jobs for which Wild Plumbing was submitting, or had submitted, tenders that agitated Mr Wild at the meeting and caused him to overreact (or lose patience, to use Mr Wild's own expression). 75 It was, in my view, much more likely to be the subsequent perceived loss of projects referred to in his December 2013 letter to FWBC that led Mr Wild to make a complaint. In the end, as the evidence discloses, he did not wish to proceed with that complaint because there was no remedy that would afford compensation for the losses that he believed the first respondent's lobbying activities had inflicted on his business. 76 For those reasons, I will order that the proceeding be dismissed. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.