Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union - [2018] FCA 1142 - FCA 2018 case summary — Zoe

CTHFCA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

[2018] FCA 1142

Federal Court of Australia|2018-08-01|Before: Tracey J

View original source

At a glance

Source facts

Court

Federal Court of Australia

Decision date

2018-08-01

Before

Tracey J

Source

Original judgment source is linked above.

Judgment (6 paragraphs)

[1]

Background 493 The application was supported by emails handed up at trial. The Commissioner's counsel also handed up two emails with attachments. The tender of the emails was not challenged. I am prepared to rely upon them for the purposes of this application. 494 In April 2015 the solicitors for the Harris respondents filed and served Mr Woods' affidavit. 495 By email of 4 February 2016, the solicitors for the Harris respondents asked the other parties which witnesses they wanted to cross-examine, noting that Mr Woods was in the United Kingdom. The next day, on 5 February 2016, the Commissioner indicated via email that he would cross-examine all witnesses and that he did not object to a video link. 496 On 2 and 3 February 2017 the solicitors for the Harris respondents corresponded via email with the other parties, including the Commissioner, as to the timing of a video link for Mr Woods. 497 On 6 February 2017 at 5.17 pm the Harris respondents served their submissions via email. 498 Later that day, at 5.20 pm, the solicitors for the Harris respondents emailed chambers to request leave for Mr Woods to appear via video link. They indicated that the other parties consented and that they proposed to use Video Conferencing London ("VCL"). 499 Later that same evening, VCL emailed the Harris respondents' solicitors to advise that it needed full payment upfront. The booking was confirmed the next day on 7 February 2017. The next evening, on 8 February 2017, VCL confirmed that it had received a payment of £720. 500 Earlier on 8 February 2017, at 9.39 am, the Harris respondents served their list of authorities. 501 On 10 February 2017 at 11.29 am the Commissioner's solicitors informed the solicitors for the Harris respondents via email that, "[i]n preparation for hearing, the Applicant has determined that it does not require Mr Woods for cross-examination." The email continued: The Applicant is content for Mr Woods' affidavit evidence to be tendered in Court without him appearing by videolink (subject to the amendment to paragraph 35 of his affidavit to use the alternative working suggested by your response to evidentiary objections). If the Respondents agree with the Applicant's proposed approach, we ask that you inform the Court and cancel the videolink. 502 The video link was cancelled. The Court was informed that VCL refunded half the costs. In the afternoon of 10 February 2017 the solicitors for the Harris respondents wrote to the Commissioner's solicitors to request that he consent to a costs order. He did not consent.

[3]

Commissioner's submissions 508 The Commissioner submitted that the Harris respondents' submission and authorities, served on 6 and 8 February 2017 respectively, were critical to his decision no longer to require Mr Woods for cross-examination. That was why he had not earlier advised of his position. 509 At that point it became clear that the Harris respondents' case centred on ADCO (No 2). The issues of pre-contract representations about the EBA were less relevant. Mr Woods' evidence was most relevant to the pre-contract meetings. He had no involvement in CFMEU discussions. The Commissioner formed the view that Mr Woods' evidence would not be adverse to his position. He could distinguish ADCO (No 2) without testing such evidence. 510 The Court's discretion to award costs is only enlivened if it finds that an unreasonable act caused the costs to be incurred. This power should not be exercised with haste so as to discourage parties from pursuing litigation under the Act in a manner which they deem best: see Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at 582; [2008] FCAFC 143 at [29] (Tamberlin, Gyles and Gilmour JJ). This included forensic decisions on cross-examination. 511 He relied upon Ashby v Slipper (No 2) (2014) 314 ALR 84 at 89; [2014] FCAFC 67 at [35] where Mansfield, Siopis and Gilmour JJ said "costs will rarely be awarded under the section and exceptional circumstances are required to justify the making of such an order", citing Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 at 289; [2006] FCAFC 199 at [60] (Black CJ, North and Mansfield JJ). 512 His decision to not require Mr Woods' attendance was neither exceptional nor unreasonable. The London factor was the only possible source of unreasonableness; the notification would be unremarkable otherwise. Even if the notification was unreasonable, the costs incurred were not caused by the Commissioner. He did not cause Mr Woods to be outside of the jurisdiction. 513 Merely because the Commissioner no longer required Mr Woods to appear did not mean that the witness conferences would not have occurred. They were not caused by his conduct, let alone any unreasonable conduct.

Parties

Applicant/Plaintiff:

Australian Building and Construction Commissioner

Respondent/Defendant:

Construction, Forestry, Mining and Energy Union

Legislation Cited (6)

Building and Construction Industry Improvement Act 2005(Cth)s 45

Building Construction Industry (Consequential and Transitional Provisions) Act 2016(Cth)

Fair Work Act 2009(Cth)ss 12, 340, 343, 345, 348, 349, 354, 363, 546, 550, 570, 793

Evidence Act 1995(Cth)s 140

Federal Court of Australia Act 1976(Cth)s 21

Federal Court Rules 2011(Cth)

Cases Cited (55)

Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) (2013) 232 IR 290; [2013] FCA 446 Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275; [2006] FCAFC 199 Director Fair Work Building Industry Inspectorate v ADCO Constructions Pty Ltd (No 2) [2016] FCA 1463 Director of the Fair Work Building Industry Inspectorate v McCollough [2016] FCA 1291 Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39; [2016] FCAFC 72 Esso Australia Pty Ltd v Australian Workers' Union (2017) 350 ALR 404; [2017] HCA 54 Esso Australia Pty Ltd v The Australian Workers' Union (2015) 253 IR 304; [2015] FCA 758 Geelong Wool Combing Limited v Textile, Clothing and Footwear Union of Australia (2003) 130 FCR 447; [2003] FCA 773 Helal v McConnell Dowell Constructors (Aust) Pty Ltd (No 3) (2011) 285 ALR 281 [2011] FCA 1344 Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62 Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; [2013] FCAFC 160 Yorke v Lucas (1985) 158 CLR 661

Commissioner's submissions 273 The Commissioner submitted that the contraventions of ss 345(1) and 349(1)(a) were established on the evidence. As Mr Theodorou did not give evidence the Court ought to infer that it could not have assisted his case. This inference could be drawn even though he claimed the penalty privilege: see Director of the Fair Work Building Industry Inspectorate v McCollough [2016] FCA 1291 at [151]-[154] (Barker J). 274 His submissions mirrored his pleadings in relation to the contentions that the representations were false and misleading "about" the exercise of Hughes Demolition's right to make an EBA and "about" its obligation to comply with the CFMEU's request to make one. 275 The Commissioner relied on the Full Court's decision in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; [2015] FCAFC 25. 276 A question arose during submissions about whether any representation comprehended by s 345(1) needed to concern legal rights in order to engage the section. It might be said, against the Commissioner, that Mr Theodorou's statement was not about a legal obligation but was rather a statement about the industrial reality on building sites in Melbourne. He accepted that s 345(1) required that a representation be about a "workplace right", defined in s 341 as "the ability to initiate or participate in a process or proceeding". He conceded that a contravention of s 345 might be more difficult to establish that a contravention of s 349. 277 He accepted that ss 345 and 349 do not apply if the person to whom the representation was made would not be expected to rely on it. Section 345(2) was considered by Cameron J in Adcock v Blackmores Ltd (2016) 259 IR 209 at 229; [2016] FCCA 265 at [97]: I read [s 345(2)] to mean that s 345(1) will not apply if a reasonable person in the circumstances of the person making the misrepresentation would not, at the time the representation is made, expect the recipient of the misrepresentation to rely on it. The words "would not be expected to rely on it" imply an objective test and, to operate fairly, must relate to the representor's state of mind. In that connection, if s 345(2) were to operate by reference to a hypothetical reasonable person without knowledge of the dealings between the parties to the misrepresentation, it would be possible that contextual matters which could shed light on whether the recipient of the misrepresentation would be expected to rely on the misrepresentation might not be taken into account. Further, use of the word "would" points to the test being applied by reference to the state of knowledge existing at the time the misrepresentation is made: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]. 278 This decision was upheld on appeal in Adcock v Blackmores Ltd [2016] FCA 893, where Flick J held (at [54]) that the primary judge had "committed no appellable error in rejecting the claim for relief founded upon misrepresentations and a contravention of s 345 of the Fair Work Act." Counsel recognised that it was not entirely clear whether Flick J was endorsing what the primary judge had said about the exception in s 345(2). 279 The Commissioner asserted, consistently with Adcock, that the test for the engagement of the exception was objective and that the word "would" means that it should be applied with reference to the state of knowledge at the time the misrepresentation was made. It was irrelevant that Mr Seckold at a later time consulted someone who told him that it was untrue. 280 He emphasised that the respondents bore the onus of proving the exceptions. This onus had not been discharged. He pointed to Mr Seckold's evidence that he had never before been told by a CFMEU member that Hughes Demolition needed an EBA. He had assumed Mr Theodorou knew about EBA requirements as he was from the CFMEU and spoke with authority. He had never negotiated an EBA before and knew nothing about the Act's requirements. 281 Counsel accepted that Mr Seckold had given evidence that he knew the CFMEU was an employee organisation with an interest in advancing employee interests. Mr Seckold had also said that he knew he was not lawfully required to make an EBA. These concessions, however, did not establish objectively that he would not be expected to rely on the representations that he needed to comply with a CFMEU request. Rather, his answers reinforced the notion that Mr Seckold understood that the CFMEU required him to make an enterprise agreement. Not only did the CFMEU representatives expect him to rely on that representation, they wanted him to.

Commissioner's submissions 318 The Commissioner submitted that discharging the s 361 onus is difficult if the relevant actor gives no evidence: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 600 at 517; [2012] HCA 32 at [45] (French CJ and Crennan J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41. 319 Whether adverse action was taken "because" of a prohibited reason is a question of fact to be answered in light of all the evidence. The reason must be operative or immediate and need not be the sole or dominant reason. Distinguishing between proximate and immediate reasons or between the cause and reason for conduct is unhelpful: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at 221-222; [2011] FCAFC 14 at [27]-[31] (Gray and Bromberg JJ); see also Helal v McConnell Dowell Constructors (Aust) Pty Ltd (No 3) (2011) 285 ALR 281 at 293; [2011] FCA 1344 at [67]-[68] (Tracey J). 320 The Commissioner noted that Mr Theodorou did not give evidence to rebut the presumption that he made the threat on 15 November 2013 because Hughes Demolition had not, or proposed not to, exercise its workplace right. If the Court accepted the threat had been made the contravention would be established by operation of s 361. 321 The Commissioner noted that Mr Dwyer did give evidence as to what he claimed he said to Mr Seckold on 15 November 2013 and his reasons for saying it. His evidence, that the statement was made merely to keep an open dialogue with the CFMEU and to offer help to get additional labour, should not be accepted because it was inconsistent with the following: His evidence-in-chief about his conversation with Mr Seckold on 15 November 2013. At [29] of his affidavit he admitted to saying, "You guys need to get something worked through with Theo, the frustration is boiling over with the CFMEU … You have to find some form of resolution even if it means putting your guys on another site and getting in labour guys to assist" (emphasis added). His conduct on 19 November 2013 when he called the MBAV to confirm that it has been engaged by Hughes Demolition to negotiate an EBA and his request for confirmation of this in writing. Once he received this confirmation, he forwarded it to Mr Darker stating, "with a bit of luck the letter attached will resolve our issues". He also forwarded the letter to Mr Theodorou with a similar message. His counsel's opening submission that "the motivating factor for everything my clients did, was to ensure that people were paid accordingly to industrial regulations, industrial requirements. A way of achieving that is to ensure that there is an enterprise agreement". The Harris Interiors respondents' written submissions which stated that, once it was apparent that Hughes Demolition did not have an EBA, "at that point, and consistently with the legitimate consideration that a lack of settled industrial arrangement on the part of a sub-contractor may lead to 'industrial disruption and consequent delay', Harris acted to have Hughes comply with its representations by negotiating for an enterprise agreement." His concession that the CFMEU may cause disruption to the programme and that he knew Mr Theodorou wanted Hughes Demolition to make an enterprise agreement. He had also agreed that he had concerns about what the CFMEU's intentions on the Site. 322 In relation to Mr Darker, the Commissioner's submissions repeated his pleadings (see [313] above). 323 The Commissioner submitted that Mr Silvestro engaged in the conduct because Hughes Demolition did not have an EBA. This was demonstrated by: The concern expressed by Harris Interiors prior to 19 November 2013 about Hughes Demolition not having an EBA with the CFMEU (as evidenced by the emails of 22 and 23 October 2013). The threats that were made by other Harris employees (Messrs Dwyer and Darker) that if Hughes Demolition did not have an EBA it would not be permitted to work on site. Mr Dunlop's evidence that, when he asked Mr Silvestro why Hughes Demolition could not commence work on 19 November 2013, he had replied: "We've got a union bloke coming to have a site meeting." After the meeting the Hughes employees were permitted to return to work. Mr Seckold's evidence that Mr Silvestro told him that Mr Seckold needed to speak with Mr Theodorou and "sort out what's happening with the union". 324 Mr Silvestro's evidence was that he was only interested in Hughes Demolitions making an EBA with the CFMEU after Mr Theodorou attended the Site and told him that Hughes Demolition did not have one. His failure to discharge his onus under s 361 to rebut the presumption that he took the adverse action for a prohibited reason was evidenced by his concessions in cross-examination that: he was concerned after his discussions with Mr Theodorou that Hughes Demolition did not have an EBA and that is why he began contacting Mr Seckold about this; he wanted Hughes Demolition to make an EBA with the CFMEU; he knew that increased CFMEU awareness potentially meant industrial action and this concerned him; and if Hughes Demolition made an EBA the CFMEU would be placated. 325 The Commissioner also submitted that Mr Theodorou had advised, incited and/or encouraged Mr Silvestro to engage in the work stoppage for the proscribed reasons alleged and that he was, therefore, liable under s 362. 326 The Commissioner advanced a further submission that Mr Theodorou was involved in Mr Silvestro's contravention of s 340. This submission relied on s 55(2). This claim was not made in his amended statement of claim. At no point was it pleaded that Mr Theodorou's liability under s 340 arose on this basis. The Commissioner's pleading on Mr Theodorou's derivative liability for Mr Silvestro's conduct was confined to s 362, at least in relation to the claimed contravention of s 340.

Mr Theodorou's submissions 327 Mr Theodorou submitted that, while it was true that the Commissioner had the benefit of the presumption created by s 361, the central question remained: "Why was the action taken?" That question was to be answered in light of all the facts established on the evidence: Barclay at 517 [45] (French CJ and Crennan J). The statutory presumption did not relieve the Commissioner of his obligation "to establish the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action": see Tattsbet Ltd v Morrow (2015) 233 FCR 46 at 75; [2015] FCAFC 62 at [119] (Jessup J, Allsop CJ and White J agreeing). 328 He contended that the Commissioner had not proven the contraventions. First, there was no evidence that action was taken or threatened because the CFMEU and Mr Theodorou sought to make an enterprise agreement under the Act or that they had requested such a thing. While Mr Theodorou or Mr Reardon had earlier told Mr Seckold that he "needed to obtain a CFMEU EBA for our employees" and that "you work in the city so that you have to have an EBA", there was no evidence that what was sought was the making of an enterprise agreement under the Act. An "EBA" or a "CFMEU EBA" are not known to the Act. The request was not to "make" anything; it was to "sign" something. There was no reference to the processes under the Act for the making of enterprise agreements. 329 Secondly, the evidence suggested that what was sought was not an enterprise agreement under the Act at all because all Mr Seckold was asked for was his signature on the EBA. His failure to do so prompted Mr Theodorou to say the words, "I am going to make everything every difficult and not let the boys work on the site." Signing a document between the CFMEU and Hughes Demolition was not an act that could constitute "making an enterprise agreement" as, under the Act, an agreement is "made" when a majority of employees who cast a vote approve the agreement (s 182). No demand or request was made which suggested that they wanted the making of an enterprise agreement under the Act. Mr Seckold was not asked to engage in any activity that could or would have led to the exercise of Hughes Demolition's workplace right to make an enterprise agreement. He was not told to do any of the required actions stipulated in the Act which are relevant to the making of an agreement. 330 Thirdly, there is nothing to suggest that Mr Theodorou had uttered those words for any reason other than that Mr Seckold had lied about coming to the office to sign the EBA on 14 and 15 November 2013. The alleged "threat" was in response to Mr Seckold going back on his word. By his own admission, and on the evidence at trial, Mr Seckold had misled Mr Theodorou. This was preceded by him not taking calls from Mr Theodorou in the hope of avoiding the whole issue and "fobbing" him off. This was sufficient to displace any presumption about the reason for speaking as he did. 331 As the Commissioner had failed, so it was said, to establish the elements of the alleged contravention, no onus was placed upon Mr Theodorou by s 361. 332 Mr Theodorou did not make any express submissions on the operation of s 362. He did deny in his submissions that any "accessorial" liability could be attributed to him in relation to Mr Silvestro's conduct on 19 November 2013 on the basis that he did not know of the alleged contraventions. His attendance on the Site on 19 November 2013 was during morning tea or "smoko" time when the employees were not working in any event. Mr Silvestro had been happy for him to come on site and speak with the employees during breaks. There was no evidence of his knowledge of the fact of, or reasons for, any stoppage. The employees returned to work soon after. These factors told against an inference of any complicity.

Harris respondents' submissions 333 The Harris respondents advanced the following case theory which contextualised the specific submissions of Messrs Dwyer, Darker and Silvestro: In pre-contractual negotiations relating to work on the Project Hughes Demolition made representations to Harris Interiors that: (a) Hughes Demolition was covered by an enterprise agreement; and (b) the terms of that agreement were compliant with regulations Harris Interiors believed applied to the building and construction industry at the time, including the National Code of Practice for the Building and Construction Industry ("the Code"). Harris Interiors sought this representation. It gave comfort in relation to compliance with the regulations and "the avoidance of industrial disruption and consequent delay": Director, Fair Work Building Industry Inspectorate v ADCO Constructions Pty Ltd (No 2) [2016] FCA 1463 at [187] (Collier J). That was a legitimate consideration in relation to the sub-contract. Delay would expose Harris Interiors to risk under its head contract. When Harris Interiors became aware the representations were untrue, consistently with that legitimate consideration, it acted to ensure that Hughes Demolition would comply with its representations by negotiating for an enterprise agreement. Under the Act such negotiations may be conducted with employee bargaining representatives. Harris Interiors understood that the CFMEU was likely to be a bargaining representative of Hughes Demolition's employees. The contract between Hughes Demolition and Harris Interiors included a provision that, if Hughes Demolition was unable to perform the contract, Harris Interiors was entitled to complete the works and require Hughes to pay the additional cost incurred in doing so. Harris Interiors was dissatisfied with Hughes Demolition's compliance with the programme of works. The notification of this right was unexceptional. The steps taken by the Harris respondents were all directed to ensuring that Hughes Demolition complied with its earlier representations for the legitimate reason of avoiding industrial disruption and delay. That was a legitimate business objective: cf ADCO (No 2). 334 Mr Dwyer submitted that his conversation with Mr Seckold on 15 November 2013 did not contain any threat. Like the email from Mr Darker which followed, it was a communication between colleagues to inform Mr Seckold of the likely need to arrange alternative labour and suggest possible solutions, including sourcing labour hire staff. He had merely offered Harris Interiors' assistance to source that "additional labour". 335 Mr Darker submitted that his email of 15 November 2013, when fairly read, did not contain any threat. It was merely a follow-up to Mr Dwyer's conversation and a request for an update as to the progress of discussions with the CFMEU. It was consistent with Harris Interiors' understanding that Hughes Demolition chose to be compliant with the Code and applicable awards and regulations by having an enterprise agreement. This understanding was formed on the basis of representations in the meetings on 24 September 2013 and 1 October 2013. Harris Interiors had understood that Hughes Demolition was discussing or negotiating with the CFMEU. In re-examination his evidence was that labour hire companies were known to be Code-compliant (as he saw that concept) by having had enterprise agreements in place. 336 Mr Darker also submitted that he was merely acting as directed by Mr Dwyer, his superior; he was the messenger rather than the decision-maker. 337 The primary position of Messrs Dwyer and Darker was that their statements were not "threats". Alternatively, even if they were, they did not relevantly threaten to alter Hughes Demolition's position or refuse to use its services. The communications merely sought to explore ways to resolve the exposure of the Project to delay. The methods proposed were consistent with Hughes Demolition's earlier representation that an enterprise agreement was in existence. 338 They submitted that they had rebutted the presumption in s 361 by demonstrating their legitimate reasons for making the statements. Each was made in an endeavour to avoid the risk of industrial disruption, delay and consequential losses. These were the immediate, substantive and operative reasons for their actions. That was so even if they considered that one way to achieve those objectives was for Hughes Demolition to have an enterprise agreement. Seeking to have Hughes Demolition's earlier representation that it had an EBA made good for those reasons could not result in a contravention of the Act. 339 Their reasons were analogous, they said, to those held to have discharged the reverse onus in ADCO (No 2). This case was not distinguishable. Motivation to avoid delay to a construction program, even arising from industrial disruption, could not be equated with a motivation which impinged on the exercise of the workplace right to have, or not have, an enterprise agreement. 340 Harris Interiors was in a situation brought about by Mr Seckold's dishonesty. The situation involved the real prospect of industrial disruption leading to delay. Hughes Demolition were already behind in their work. It was not a sustainable proposition that Harris Interiors either had to "suffer in silence" or actively stand between Hughes Demolition and the CFMEU, preventing it from negotiating an enterprise agreement. 341 It was legitimate for Harris Interiors to require Hughes Demolition to act in accordance with its representations that it had an enterprise agreement. Harris Interiors did not require that there be an agreement. Rather it required that the potential for disruption be diffused by continued dialogue. With dialogue there would be no industrial disruption. If there was no industrial disruption, there would be no further delay. 342 Hughes Demolition was already significantly behind, even before any question about its compliance with its representation arose. It was, therefore, clear that the desire to avoid further delay was the immediate and operative reason for the requests that Mr Seckold engage with the CFMEU. Once that dialogue began, and, in particular, once the MBAV advised it was assisting, Harris Interiors was not alleged to have taken any further steps. 343 Mr Silvestro submitted that he did not direct the Hughes Demolition employees not to work on 19 November 2013. In fact, he told them to work and observed them doing so when they commenced unloading tools. It was inconceivable that he would have asked Mr Seckold what was going on if Mr Silvestro had been the one to cause the stoppage. It was also inconceivable when considered in light of the fact that he had told Mr Dunlop that he needed to start work or otherwise leave the Site.

Reverse onus - s 361 344 Section 340 proscribes adverse action (as defined in s 342) which is taken against a person because that person has a workplace right, has (or has not) exercised the workplace right, or proposes to (or not to) exercise a workplace right. The meaning of the expression "workplace right" is defined in s 341. This provision appears in Part 3-1 of the Act. As a result, ss 360 and 361 apply to the particular reason or purpose (s 360) for which action is taken under s 340. 345 I am satisfied that the preconditions for the application of s 361 are met by the Commissioner's pleadings in relation to the action alleged to have been taken by Mr Silvestro: cf Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 at [13], [15]-[19] (Tracey, Reeves and Bromwich JJ). 346 The "particular reason" that Mr Silvestro was said to have taken the adverse action is pleaded at [92] (that Hughes Demolition had not exercised its workplace right or proposed not to do so). The material facts, which show that the alleged action, in combination with the particular reason, would constitute a contravention of s 340, are pleaded at [11] (that Hughes Demolition had not made an enterprise agreement and had a workplace right to do so) and [85]-[88] (the work stoppage) and [89]-[90] (the altering of Hughes Demolition's position to its prejudice by causing it to fall behind in its work under the contract). 347 As s 361 is engaged Mr Silvestro is presumed, unless he proves otherwise, to have taken the alleged action for a proscribed reason. 348 Nonetheless, s 361 is not engaged where the proscribed conduct extends no further than the making of a threat to take action: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) [2017] FCA 1398 at [70] (Tracey J) and the cases there cited. 349 This means that the Commissioner has the onus of proving that Messrs Theodorou, Dwyer and Darker made the alleged threats for the "particular reasons" which he alleges.

Commissioner's submissions 386 The Commissioner submitted that, in order to establish that a person had engaged in conduct with an intent to coerce, it is necessary to prove that the conduct is: (a) compulsive, in the sense that the pressure it exerts, in a practical sense, negates choice; and (b) unlawful, illegitimate or unconscionable: see, eg, Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 at 187; [2013] FCAFC 160 at [70]-[72] (Buchanan and Griffiths JJ). 387 The Commissioner relied upon Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39; [2016] FCAFC 72 where Buchanan J (with Siopis J agreeing) upheld the reasoning of Jessup J that there is no requirement to establish that the coercing party knew that his or her conduct was unlawful, illegitimate or unconscionable. Whether conduct taken or threatened is unlawful, illegitimate or unconscionable is to be determined objectively. The question is whether the conduct was intended to apply pressure that would negate choice: at 84-89 [174]-[201]. 388 The Commissioner submitted that Mr Theodorou's threat constituted unlawful or unconscionable conduct intended to negate Hughes Demolition's choice to make an EBA or comply with the CFMEU's request. He submitted that a threat to engage in (unprotected) industrial action may constitute an intention to coerce an employer from engaging in a particular kind of conduct: cf Cahill v Construction, Forestry, Mining and Energy Union (No 3) (2009) 178 IR 89; [2009] FCA 52. The Commissioner submitted that Mr Theodorou had not given evidence to rebut the presumption in s 361 that he made the threat with the intention to coerce Hughes Demolition to exercise a workplace right to make an EBA to engage in industrial activity by complying with the CFMEU's request. Mr Seckold was not cross-examined on this point. 389 In relation to Mr Dwyer, the Commissioner submitted that his threat constituted an ultimatum: make an EBA with the CFMEU or lose the contract to perform the works on the Site and pay for Harris Interiors to engage other persons covered by an EBA to finish the job. It was intended to negate Hughes Demolition's choice as to whether to make an EBA or comply with the request. The threat was unlawful as it constituted adverse action contrary to s 340. It was unconscionable because Hughes Demolition and Harris Interiors had signed a contract which did not require an EBA. 390 The Commissioner noted that the contents of Mr Darker's email and the fact that he sent it to Mr Seckold were not disputed. The evidence established that Mr Darker only became interested in the existence of Hughes Demolition's EBA once Mr Theodorou came to the Site in October 2013; prior to this it was never an issue. The email presented an ultimatum intended to negate Hughes Demolition's choice. He had not discharged his onus under s 361 to prove that he did not make the threat for the alleged reasons and with the alleged intent. 391 The Commissioner submitted that Mr Silvestro's contravening conduct was constituted by his conversation and conduct with Mr Dunlop on 19 November 2013. In preventing the Hughes Demolition employees commencing work on the Site on that day Mr Silvestro had engaged in conduct with an intent to coerce Hughes Demolition to make an EBA or to comply with the request by the CFMEU. 392 He also submitted that Mr Theodorou had advised, incited and/or encouraged Mr Silvestro to engage in the work stoppage for the proscribed reasons alleged and that he was, therefore, liable under s 362. 393 The Commissioner's written submission that Mr Theodorou was involved in Mr Silvestro's contravention of s 343 and 348 may be disregarded because these allegations were not pleaded.

Mr Silvestro 435 As noted above, I am satisfied the Mr Silvestro took action against Hughes Demolition by stopping its employees from working on the morning of 19 November 2013. The first element of ss 343 and 348 is therefore satisfied. 436 I am, however, not satisfied that Mr Silvestro had the requisite intent to coerce. The Commissioner does not enjoy the benefit of the reverse onus in relation to this element. He was required to prove that Mr Silvestro intended to negate Hughes Demolition's choice. As Barker J stated in Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (2017) 270 IR 190 at 226; [2017] FCA 847 at [131]: Action is prohibited by s 348 if the action is taken or engaged in (or the threat is made) with a substantial and operative intent to coerce the other person to engage in industrial activity. See Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530; 102 IR 359 at [45]; John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2009) 174 FCR 526; 180 IR 314 at [42]. 437 Mr Silvestro was not directly involved in the demands that Mr Seckold sign an EBA. He had spoken with Mr Seckold from time-to-time for an update about progress on the EBA situation. He was also copied in on the emails which Mr Darker sent on 22 and 23 October 2013 so he was aware that requests for its production had been made. While he held a general view that an agreement was important for compliance with the Code, he was indifferent as to whether such an agreement was a "CFMEU" agreement. I have found above that he knew that Mr Theodorou was coming to the Site on the morning of 19 November 2013 to talk to employees of Hughes Demolition. He did not want work to be interrupted. He wanted to accommodate Mr Theodorou's access to the workers. Mr Dunlop agreed that at one point that morning Mr Silvestro told him to commence work or leave the Site. 438 I accept that the requisite intention may be one of several other purposes of objectives: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 at [35] (Flick J). Nevertheless, I do not consider that the evidence rises to the point where it may be concluded that Mr Silvestro had a substantial or operative intent to remove Hughes Demolition's choice to make, or not make, an enterprise agreement or whether to accede to the union's request that he do so. 439 In any event, I do not consider that, in directing the Hughes Demolition workers not to commence work, Mr Silvestro was applying the strong pressure that was required for his conduct to be regarded as coercive. The work stoppage lasted for only a few hours during which time the employees sat in a shed on site. Some of that time work overlapped with or, at least, immediately preceded the morning tea or smoko break. They soon recommenced work. No EBA had been signed. 440 The day before the work stoppage, on Monday 18 November 2013, Mr Seckold had engaged the MBAV to negotiate with the CFMEU on an EBA. Mr Theodorou was told of this engagement the next day by an email from Mr Dwyer which was sent at 11.45 am on Tuesday 19 November 2013. On the Commissioner's case this occurred after the time which he claimed work recommenced, namely at 10.30 am that day. 441 I do not consider that the work stoppage constituted pressure of the sort which removed Hughes Demolition's realistic choice as to whether or not to make an EBA. As Barker J stated in The Gorgon Project Case at 227 [135]: Coercion implies a high degree of compulsion, in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply. See National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114; 114 IR 20 at [103]-[104]. 442 For these reasons, I do not consider that Mr Silvestro has contravened ss 343 or 348.

Commissioner's submissions 451 The Commissioner submitted that s 354 replicates the former s 45 of the Building and Construction Industry Improvement Act 2005 (Cth). That section was considered in Australian Building and Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd (2012) 203 FCR 345; [2012] FCAFC 93 where the Full Court upheld a decision that, to establish discrimination, it was necessary to identify a burden or adversity imposed upon the victim of the alleged discrimination: 349-351 [18], [25]-[26] (Buchanan J), 361-362 [68]-[75] (Flick J), 369 [111]-[112] (Katzmann J). He also relied upon Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Abseal Case) (2017) 266 IR 204; [2017] FCA 11 where Jessup J said that to "discriminate" means to treat a person in a prejudicial way: at 229 [82]. 452 He submitted that Mr Silvestro had discriminated against Hughes Demolition by causing the work stoppage. Mr Silvestro had conceded in cross-examination that no other subcontractor employees were prevented from working that day. This suggested that the Hughes Demolition employees were treated differently from others on the Site. He had not discharged his onus under s 361 to prove that he did not stop the work because they were not covered by an EBA. The work stoppage imposed a burden or adversity on Hughes Demolition as the lost time caused it to fall further behind its work schedule. 453 The Commissioner contended that Mr Theodorou was involved in Mr Silvestro's contraventions pursuant to s 550(2). He was an intentional participant based on his knowledge of the essential facts constituting the contravention or, he was, at least, wilfully blind: see Yorke v Lucas (1985) 158 CLR 661 at 666-667 (Mason ACJ, Wilson, Deane, Dawson JJ). He knew the employees had been prevented from working. He knew that Mr Silvestro had prevented them from doing so because Hughes Demolition lacked an EBA and because Mr Silvestro wished to force it to make one or conform to the CFMEU's request that it do so. 454 Mr Theodorou's knowledge could be inferred from the following. On 19 November 2013, he knew that Hughes Demolition did not have an EBA and proposed not to enter one. He had threatened both Harris Interiors and Hughes Demolition that, if the latter did not make an EBA, its employees would be prevented from working on 19 November 2013. He attended the Site on 19 November to discuss, with Hughes Demolition's employees, the possibility of Hughes Demolition making an EBA. This was the same morning that Mr Silvestro stopped the work. 455 It could be inferred that Mr Theodorou acted in concert with Harris Interiors to arrange for Harris Interiors to prevent the Hughes Demolition employees from working on the Site. That inference, he said, was strengthened by his failure to give evidence: McCollough at [151]-[154] (Barker J). 456 The Commissioner also submitted that Mr Theodorou was liable (pursuant to s 362(1)) by advising, inciting and encouraging Mr Silvestro's conduct on 19 November 2013.

Mr Theodorou 466 An allegation that a person has contravened a civil remedy provision of the Act is serious. An adverse finding will render the person liable for a monetary penalty. Such contraventions are treated as being "quasi-criminal". As a result the provisions of s 140(1) and (2) of the Evidence Act 1995 (Cth) establish the standard of proof which is required to make good such an allegation. Adverse findings are not lightly to be made particularly where, as in a case such as the present, those findings are sought on the basis of inferences rather than direct evidence: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 at [60]-[62] (Flick J). 467 I am not satisfied Mr Theodorou was involved in Mr Silvestro's contravention of s 354. 468 Mr Theodorou was not present at the Site when Mr Silvestro gave the direction that the Hughes Demolition employees were not to commence work. There was no direct evidence that he had any foreknowledge that such a direction was to be given. This is so despite his earlier threat on 15 November 2013 that he would not let the boys work on the Site. His arrival on the Site coincided with or, at least, immediately preceded a scheduled work break for the Hughes Demolition employees. It was hardly surprising then that he found them in the sheds. Not long afterwards the workers either commenced work for the day or resumed work. 469 In these circumstances I am not prepared to infer that Mr Theodorou had knowledge of Mr Silvestro's decision to prevent the commencement of work. Section 550 is not engaged. 470 Nor am I satisfied that Mr Theodorou advised, encouraged or incited Mr Silvestro to take such action for the purposes of s 362. 471 It has not been established that Mr Theodorou has contravened s 354.

Harris Interiors' submissions 485 Harris Interiors accepted that Messrs Dwyer, Darker and Silvestro were acting within the scope of their actual and apparent authority at all times and that, therefore, their actions were to be taken to be those of Harris Interiors. It nevertheless denied all of the alleged contraventions. 486 The "alternative claim" added nothing, it submitted, to the existing vicarious liability claims for the individual alleged contraventions. Counsel relied, to the extent that it was relevant, on the fact that intent was to be judged on an individual rather than a group basis: Geelong Wool Combing Ltd v Textile, Clothing and Footwear Union of Australia (2003) 130 FCR 447 at 454; [2003] FCA 773 at [17] (Finkelstein J).

(2016) 259 IR 209

(2014) 314 ALR 84

(2017) 266 IR 204

(2012) 203 FCR 345

(2012) 248 CLR 500

(2015) 238 FCR 273

(2015) 230 FCR 298

(2008) 170 FCR 574

(2013) 232 IR 290

(2006) 156 FCR 275

(2016) 245 FCR 39

(2017) 350 ALR 404