Australian Building and Construction Commissioner v Hall - [2017] FCA 274 - FCA 2017 case summary — Zoe

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Australian Building and Construction Commissioner v Hall

[2017] FCA 274

Federal Court of Australia|2017-03-22|Before: Flick J

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Court

Federal Court of Australia

Decision date

2017-03-22

Before

Flick J

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Judgment (45 paragraphs)

[1]

Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440, (2014) 243 IR 312 Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 Giorgianni v The Queen (1984) 156 CLR 473 Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188, (2000) 100 FCR 530 Jenkins v The Queen [2004] HCA 57, (2004) 79 ALJR 252 Jones v Dunkel (1959) 101 CLR 298 Kennewell v MG & CG Atkins [2015] FCA 716 Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd [2010] FCA 770, (2010) 188 FCR 221 National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441, (2002) 117 FCR 114 National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99 Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63, (2012) 202 FCR 244 R v Kivalu [2016] ACTSC 138 R v MG [2016] NSWCCA 304 RailPro Services Pty Ltd v Flavel [2015] FCA 504 Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456, (2001) 109 FCR 378 Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160, (2013) 218 FCR 172 Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, (2014) 246 IR 441 Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236

[2]

[12]

REASONS FOR JUDGMENT 1 In June 2016 the Director of the Fair Work Building Industry Inspectorate (as it then was) (the "Director") commenced a proceeding in this Court against Mr Dean Hall and others. The Director alleges that the Respondents contravened various provisions of the Fair Work Act 2009 (Cth) (the "Fair Work Act"). 2 The events which the Director alleges gave rise to the contraventions, in very summary form, centred upon what was said to be a "Blockade" of a building site between 11 and 13 June 2014 at Dickson, in the Australian Capital Territory. The head contractor on site was Built Pty Ltd ("Built"). 3 A Statement of Agreed Facts records that the First Respondent is the Secretary and an employee of the Ninth Respondent, the Construction, Forestry, Mining and Energy Union (the "CFMEU"). The Statement of Agreed Facts also records that the Fourth Respondent, Mr Jason O'Mara, is the Assistant Secretary and an employee of the CFMEU. It is also agreed that the Second, Third, Sixth and Seventh Respondents (Messrs Kenneth Miller, Zachary Smith, Garry Hamilton and Johnny Lomax respectively) were at the time of the events in June 2014, and remain, organisers and employees of the CFMEU. The Fifth and Eighth Respondents (Messrs Kivalu and Vitler) were, but no longer are, organisers and employees of the CFMEU. Messrs Kivalu and Vitler were officials, and therefore officers of the CFMEU, within the meaning of ss 12 and 342(1) of the Fair Work Act. As at June 2014, each of the individual Respondents was a "building industry participant" within the meaning of s 4 of the Fair Work (Building Industry) Act 2012 (Cth). 4 The Director seeks declaratory relief and orders for the payment of pecuniary penalties for contraventions of ss 340, 343 and 355 of the Fair Work Act. Accessorial liability is sought to be imposed pursuant to s 550 of that Act. 5 The Director was represented by Senior and Junior Counsel. All Respondents, other than the Fifth Respondent (Mr Kivalu), were also represented by Senior and Junior Counsel. Mr Kivalu took no part in the proceeding other than to give evidence pursuant to a subpoena. The Respondents, other than Mr Kivalu, have been variously referred to as the CFMEU, the Respondents or the individual respondents. 6 All Respondents, other than Mr Kivalu, deny the allegations made by the Director. Mr Kivalu filed a Defence on 25 May 2016 admitting to the Director's allegations. 7 It is concluded that the Application as made by the Director in large part fails. In so concluding, it is respectfully considered that the Director has failed to discharge the onus of proof required to prove the contraventions.

[15]

The Statement of Agreed Facts 14 In addition to setting forth an agreement as to the positions occupied by each of the individual Respondents, the Statement of Agreed Facts conveniently set forth the background to the events as they unfolded in June 2014, as follows (without alteration): Background 13. From approximately February 2014 to December 2014, construction of the Kim Harvey School of Dance was occurring at 11 Rosevear Place, Dickson, in the Australian Capital Territory (the KHSD Project). The KHSD Project involved the construction of a three-storey single building, including an underground carpark. 14. One access gate to the KHSD Project was from Hawdon Place in Dickson (the Hawdon Place Gate), in the Australian Capital Territory (ACT). 15. Access from the Hawdon Place Gate required workers and plant to traverse a block of land owned by Hadwon Pty Ltd (ACN 114 173 634) (the Hadwon Land), in order to access the KHSD Project. 16. Another access gate to the KHSD Project was on Rosevear Place, Dickson in the ACT. Access through the Rosevear Place gate required workers and plant to traverse a carpark used by Pinocchio Childcare Centre, adjacent to the Rosevear Place Gate. 11 June 2014 17. On 11 June 2014, the Hawdon Place Gate was locked. 18. At around 7.30am on 11 June 2014, Hall and O'Mara met with Moore and Tonkovic at the Praga Café in Dickson, ACT (the Praga Café Meeting). 19. At the conclusion of the Praga Café Meeting, Hall returned to the KHSD Project. 20. ACT Policing arrived at the Hawdon Place Gate to the KHSD Project in or around the morning. ACT Police officers spoke to Hall. 12 and 13 June 2014 21. On 12 and 13 June 2014 Built sought to access the KHSD Project via the Rosevear Place Gate. 15 It was also common ground that: the gates located at Hawdon Place were first blockaded on 11 June 2014; the gates located at the rear of the carpark to the Pinocchio Early Learning Centre were first blockaded on 12 June 2014; and WorkSafe ACT visited the Project site and issued a number of Prohibition Notices on 13 June 2014, one of which prohibited the "[u]se of Rosevear Place Dickson to access plant and construction equipment onto and from" the Project Site. The Prohibition Notice issued in respect to the means of accessing the Project Site and issued pursuant to s 195 of the Work Health and Safety Act 2011 (ACT) provided in part as follows: 16 What was not common ground were the reasons for the "Blockade".

[16]

Onus of proof 17 At least four matters need to be borne in mind when considering the question of who bears the onus of proof when contraventions of the Fair Work Act are alleged. 18 First, when making findings of fact, due regard must be had to the gravity of the matters alleged: Evidence Act, s 140(2). Section 140 provides as follows: 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. The contraventions alleged by the Director have to take into account the fact that the contraventions alleged are contraventions of civil remedy provisions of the Fair Work Act. They are, accordingly, properly to be regarded as "quasi-criminal": Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294 at [53], (2002) ATPR ¶41-901 at 45,414 per Goldberg J; BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291 at [68] to [69], (2013) 239 IR 363 at 388 to 389 per Collier J. 19 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: Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd [2010] FCA 770 at [13], (2010) 188 FCR 221 at 225 per Logan J. When commenting upon the evidence required in a petition for divorce on the ground of adultery under the Marriage Act 1928 (Vic), Dixon J in Briginshaw observed (at 362): But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. See also: (1938) 60 CLR 336 at 347 per Latham CJ. See also: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 at [29] to [32], (2007) 162 FCR 466 at 479 to 480 per Weinberg, Bennett and Rares JJ; Darlaston v Parker [2010] FCA 771 at [17], (2010) 189 FCR 1 at 6 to 7 per Flick J. 20 All such findings of fact as have been made in respect to the Director's allegations as to contraventions have been made against the standard imposed by s 140(2) of the Evidence Act. Findings as to a contravention of the Fair Work Act are not findings lightly to be made. 21 Second, ss 360 and 361 of the Fair Work Act are directed to those contraventions which require proof that a person takes action "for a particular reason" or "with a particular intent" - as is the case in respect to contraventions of ss 340, 343 and 355. Section 360 provides as follows: Multiple reasons for action For the purposes of this part, a person takes action for a particular reason if the reasons for the action include that reason. Section 361 is the "reverse onus of proof" provision and is as follows: Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 22 When addressing s 346 of the Fair Work Act and the prohibition there contained against the taking of "adverse action" because (inter alia) a person was not a member of an industrial association, in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500 French CJ and Crennan J observed in respect to that provision and s 361: [5] The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason … Their Honours later continued: [44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?" [45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (References omitted) See also: Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32], (2014) 246 IR 441 at 447 to 448 per Tracey and Buchanan JJ. Upon proof (for example) that an employee has exercised a "workplace right" and upon proof that "adverse action" has been taken, it is then presumed that the action was taken for the reason alleged unless the employer proves to the contrary: Kennewell v MG & CG Atkins [2015] FCA 716 at [52] per Tracey J; Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [14] to [15]. The rationale for s 361 casting the onus in this way is that the facts lie peculiarly within the knowledge of the employer: General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J; RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [23] per Perry J. 23 Whether a respondent has discharged the "reverse onus of proof" is a question to be resolved at the end of a proceeding and upon consideration of the entirety of the evidence adduced: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 at 279. Jessup J there observed in respect to an alleged contravention of s 340: [27] In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question. The need to consider the entirety of the evidence, with respect, is hardly surprising. See also: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333 at [372], (2011) 193 FCR 526 at 583 per Barker J. 24 With respect to the separate question as to the standard of proof to be applied when seeking to rebut the presumption, it was common ground between the parties to the present litigation that the standard at that point in the analysis is the balance of probabilities. This approach is consistent with the following observations of Gray J in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 at 146: [20] … Further, s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption. 25 Third, in order to invoke the reverse onus of proof, an applicant need only establish that "the evidence is consistent with the hypothesis" that a respondent was actuated by a proscribed reason: Bowling (1976) 51 ALJR at 241. When addressing a predecessor provision to s 361 (namely s 5(4) of the Conciliation and Arbitration Act 1904 (Cth)), Mason J there concluded: Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge. See also: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [22] to [23], (2013) 234 IR 139 at 147 per Gray J; Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 at [80] to [81], (2015) 253 IR 166 at 186 to 187 per Reeves J. 26 Fourthly, the reverse onus of proof provisions found in s 361 do not apply to claims for accessorial liability under s 550 of the Fair Work Act: Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99 at [448] per Rangiah J. See also: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 at [241], (2013) 216 FCR 70 at 117 per Murphy J.

[17]

THE EVENTS ON 11, 12 & 13 JUNE 2014 27 In very summary form, the Director alleges that the "Blockade" of the Project Site on 11, 12 and 13 June 2014 was pursued because the CFMEU wanted Built to: sign a new Enterprise Bargaining Agreement or to vary an existing New South Wales or Victorian Agreement to include the ACT. An associated concern relied upon by the Director to be of relevance to the contravention of s 355 of the Fair Work Act was the alleged purpose of exerting pressure upon Built to: employ a particular person or to allocate particular duties to a particular person. Underpinning these allegations is a series of statements sought to be attributed to Mr Hall. Mr Hall denies each of the allegations. 28 Although the allegations being advanced for resolution intertwined to the extent that the case being advanced on behalf of the Director was sought to be substantiated largely by reference to the context in which words were said and by reference to words attributed to Mr Hall on a number of occasions (with each of these occasions propounding a common theme, and indeed allegations also sought to be supported by other events), the allegations centred upon: an "informal meeting" at the CFMEU headquarters in Canberra in "early 2014 sometime"; a weekly organisers' meeting on 3 June 2014, chaired by Mr Hall; a meeting on the afternoon of 10 June 2014; and a meeting on 11 June 2014 at the Praga Café. In addition to these events, there were also: a series of statements sought to be ascribed to one or other of the individual Respondents. The Amended Statement of Claim, it should be noted, only relevantly makes allegations in respect to the events on 11 June 2014 and thereafter. But the evidence of Mr Kivalu as to earlier comments sought to be attributed to Mr Hall, presumably, were relied upon as providing the background or the context against which the events of 11, 12 and 13 June 2014 could be assessed. 29 Central to the events in "early 2014" and on 3 and 10 June 2014 was the evidence of Mr Kivalu. The meeting at the Praga Café was a meeting attended by Messrs Hall and O'Mara on behalf of the CFMEU and Messrs Moore and Tonkovic on behalf of Built. A Construction Manager for Built, Mr Michael Riley, arrived "right at the end of the conversation" and "didn't say anything". Although Mr Hall accepts that during the course of that meeting there was discussion about an enterprise agreement, any such discussion that did occur has to be considered against the backdrop of the events immediately preceding that meeting. 30 Some of those background facts supported the Director's case; other background facts supported the CFMEU's case. 31 It is relevantly concluded that the factual case sought to be advanced on behalf of the Director fails. In reaching that conclusion, it has been concluded that: the evidence of Mr Kivalu is subject to such serious reservation that no reliance can be placed upon it; and that whether each of the events relied upon by the Director be considered either individually or cumulatively, the Director has failed to discharge the onus of proof imposed upon him - especially bearing in mind the necessary caution mandated by s 140(2) of the Evidence Act and Briginshaw. It is further concluded that no different factual finding should be made by reason of: other statements made by those participating in the "Blockade", in particular, statements made by Messrs Smith and Miller on 11 and 13 June 2014. It is also concluded that: the CFMEU's reasons for taking the actions that it did - namely, expressed concern as to safety (initially founded upon concerns relating to asbestos on the site formerly occupied by the Canberra Tradies' Club and thereafter concerns as to traffic management) should be accepted. The members of the Tradies' Club, it was explained, were also members of the CFMEU.

[18]

The early 2014 events & the 3 June 2014 meeting 32 The evidence of Mr Kivalu of relevance to the Director's case started with what he described as an "informal meeting" at the CFMEU headquarters in Canberra "in early 2014 sometime". Mr Hall came out of his office and said in an open area of the office, in the presence of Messrs Kivalu, Vitler and Smith, words to the effect: Built are not signing an EBA. That is all that Mr Kivalu could recall of that event. Mr Hall denied those words having been said. 33 Mr Kivalu also maintained that he had a meeting with Mr Hall in about May 2014 when (on Mr Kivalu's account) Mr Hall said words to the effect: We will not have Built building next door to us and not have an EBA. They will not fucken use our land as … access. The reference to "our land" was a reference to the site numbered 25, being the land formerly occupied by the Canberra Tradies' Club. Mr Kivalu also maintained that Mr Hall said words to the following effect: Access/egress is an issue that we could look at, that's a start. Mr Hall was also said to have mentioned asbestos but did not go into any detail. Mr Hall denied having said those words. 34 The 3 June Meeting, on Mr Kivalu's account, was a weekly organisers' meeting held on or about Tuesday 3 June 2014 at 2.00pm. According to Mr Kivalu, Ms Susan Benton attended at that meeting to record the matters discussed but was told by Mr Hall: "don't record anything". Mr Hall was said to have chaired the meeting and was said to have told the meeting: I think we have a problem with Built, they haven't signed an EBA, and that's a problem. He was also said to have told the meeting: We cannot have a builder building next to us that does not have a relationship with the CFMEU. I'm not going to allow someone building next to us not to have an EBA or use non-EBA companies. Not tolerated. The reference to "a builder building next to us" was presumably a reference to the proximity of the headquarters of the CFMEU in Canberra and the Project Site. Mr Hall was also said to have told the meeting: We need to up the ante because Built hasn't signed the EBA. We will have a meeting to strategise what we are going to do on the day. In addition to Messrs Kivalu and Hall, Messrs O'Mara, Jennings, Lomax, Vitler, Smith and Miller were also said to have been in attendance.

[19]

The events on 10 June 2014 35 Mr Kivalu's evidence was also of central importance to the Director's case in respect to his account of a meeting held at the CFMEU Canberra headquarters on the afternoon before the "Blockade", namely on 10 June 2014. 36 On the afternoon of 10 June 2014, Mr Kivalu said that at about 3.00pm there was a "blockade meeting at which the Built project was discussed". On his account, those attending were him and Messrs Hall, O'Mara, Jennings, Lomax, Vitler, Smith, Miller and Cousins. The meeting was said to have been in Mr Hall's office and Mr Hall is said to have told those present: The whole point of the blockade is to get Built to sign an EBA and to show them that we mean business. We need to have a blockade. Mr Hall is alleged to have continued as follows: Anthony and Zac, you guys need to go and talk to Built regarding a safety person and we will place a safety delegate with them. ... You all need to be at the office at 5.30 am. How many blokes are we going to have there? Have we got numbers? Who do we need to come there? I want you guys as organisers to organise our key delegates to ensure they are there also. Mr Kivalu understood the reference to "you all" was a reference to himself and Messrs Lomax, Miller, Vitler and Smith. Mr Hall was then alleged to have said: You organise food and water. Mr Hamilton replied: OK. Mr Hall then addressed Mr Vitler and said: You organise the entrance from the Downer Side. All you guys, you need to be at the school at the front entrance, park your cars across the front entrance. If anyone comes this is a community rally, it's a safety issue. Mr Hall was also said to have told the meeting: Don't let anyone in … Let the management in, they are ok. Definitely don't let any subcontractors in. All of the CFMEU officials present are then alleged by Mr Kivalu to have said: OK. Mr Hall then said: You will use safety to stop the job. It is a safety issue. If anyone asks there is a safety issue on the site we need to rectify and address before we can re-open it. The issue is asbestos. That's a good one. We will use the asbestos issue to do a safety walk and stop work at this site. The CFMEU officials were again alleged by Mr Kivalu to have said: OK. Mr Hall continued on to say, on Mr Kivalu's account: If the builder or anyone else like the Police, FWBC or MBA ask, tell them it is a safety issue. Asbestos is the obvious issue. Once we're on, have a look at access, egress, fall protection and amenities. 37 Mr Hall either denied the words attributed to him or had no recollection of having said those words. And, again, the other Respondents said to have been present all denied the account given by Mr Kivalu, or had no recollection of those words having been said.

[20]

The unreliability of Mr Kivalu's evidence 38 If Mr Kivalu's account were to be accepted, the case for the Director would significantly be advanced. 39 His evidence, considered alone, may also be considered to have some semblance of reality. Although the Project Site could not be seen from the CFMEU Canberra headquarters, it was very close by. Any heavy machinery required on site - unless it could gain access via Hawdon Place - would necessarily have to travel down Rosevear Place and right outside the Canberra headquarters. 40 But Mr Kivalu's evidence cannot be relied upon. 41 As the evidence developed, it emerged that: Mr Kivalu was facing criminal charges for blackmail at the time and entered into an arrangement with the prosecuting authorities which included an agreement to give evidence on behalf of the Director. Although a matter for the sentencing Magistrate, Mr Kivalu sought to avoid a custodial sentence. As Mr Kivalu accepted in cross-examination, "who wants to go to [gaol]?" and he did not go to gaol "thank God". Moreover, Mr Kivalu's evidence was: open to question. There was, for example, no self-evident reason or occasion why in "early 2014 sometime" Mr Hall would suddenly emerge from his office and simply state to those present that "Built are not signing an EBA"; and either denied by Mr Hall and each of those other persons said to have been present or not supported by any other witness. Those other witnesses (like Mr Hall) either denying that those words were said or having no recollection of those words having been said. Moreover, Mr Kivalu's evidence was not consistent with: the evidence (for example) that there was no meeting at 2.00pm on 3 June 2014 - that time being the time of the meeting of the executive; the evidence that on 10 June 2014 there was no meeting at 3.00pm, that time being "a 38-hour rostered day off" - as supported by a calendar for 2014 indicating rostered days off, public holidays and the like; the evidence that Mr Jennings, who was said by Mr Kivalu to have been in attendance, was overseas at the time - as verified apparently by a stamp in his passport; and the evidence that Ms Benton, who was said by Mr Kivalu to have been in attendance, did not attend the meeting. 42 Such, with respect to Mr Kivalu, is the assessment as to his evidence. But two further points should be expressly made. 43 First, although reference is repeatedly made in judicial decisions to the "demeanour of the witness" as a reason for either accepting or rejecting evidence, "demeanour" is respectfully considered to be a very uncertain touchstone of reliability. Although it is accepted that a trial judge is entitled to make observations relating to the demeanour of witnesses, it has been observed that "it is a notoriously crude and inaccurate methodology": Craig v Silverbrook [2013] NSWSC 1687 at [140] per Sackar J. See also: Fox v Percy [2003] HCA 22 at [30] to [31], (2003) 214 CLR 118 at 128 to 129 per Gleeson CJ, Gummow and Kirby JJ. In not accepting Mr Kivalu's evidence, some reliance has nevertheless been placed upon his "demeanour" and in particular his: apparently "dogged" determination to "stick to" his account of the events and not accept reasons that could well be regarded as reasons for questioning his account; and apparent unwillingness to agree to the proposition that it was his co-operation with the prosecutors of the blackmail charge that contributed to his not getting a custodial sentence (his response repeatedly being that you would "have to ask my legal team") and the proposition that it was not a mere "coincidence" that the date of the filing of his defence in the proceeding now before this Court was the same day upon which the criminal proceeding was resolved. 44 Although in some circumstances it may well be accepted that one party's witnesses may all seek jointly to deny evidence against their common interest, the denials of the individual Respondents in the present case are accepted. 45 CFMEU witnesses also denied that it was unacceptable for the Project Site to be in such close proximity to its Canberra headquarters and yet not be bound by an enterprise bargaining agreement. And that was so notwithstanding that Mr Hall accepted that he wanted the CFMEU to have 100% coverage. In other words, Mr Hall did want all construction workers to have the benefit of such an agreement. 46 Second, in making the finding as to the unreliability of Mr Kivalu's evidence, express reference should be made to the submissions advanced on behalf of the CFMEU in respect to Jenkins v The Queen [2004] HCA 57, (2004) 79 ALJR 252 and the decision in R v Kivalu [2016] ACTSC 138. In respect to the Jenkins decision, Senior Counsel for the CFMEU placed reliance upon the caution expressed by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ as to the reliability of the evidence of "an accomplice". When considering the position of a trial judge and the warnings that should be given to a jury, their Honours there observed: [30] In the practical application of the rule, it must be observed that what is involved is a warning about the danger of "convicting upon the evidence" of the accomplice, unless it is corroborated. This is not a mere incantation. It must be related to a forensic contest, and its operation in a particular case must be explained to the jury by reference to the evidence and the issues. Those issues will be determined partly by the conduct of trial counsel, and might not emerge in final form until the closing addresses. The rule exists for a reason. That reason is related to the potential unreliability of accomplices, an unreliability thought to be so well known in the experience of courts that judges are required, not merely to point it out to jurors, but to tell them that it would be dangerous to convict upon the evidence of an accomplice unless it is corroborated. The principal source of unreliability, although it may be compounded by the circumstances of a particular case, is what is regarded as the natural tendency of an accomplice to minimise the accomplice's role in a criminal episode, and to exaggerate the role of others, including the accused. Accomplices are regarded by the law as a notoriously unreliable class of witness, having a special lack of objectivity. The warning to the jury is for the protection of the accused… In rejecting the CFMEU's reliance upon these observations, the Director maintained that the law "has now generally been overtaken by statute", being the Evidence Act, s 164 and that the "circumstances of cases are infinitely various". Rather than shunning Mr Kivalu's evidence, the Director urged that consideration should be given "to the extent to which [it] is corroborated by other evidence". The "caution" urged by Senior Counsel on behalf of the CFMEU is heeded. But the approach urged by the Director has been largely followed - Mr Kivalu's evidence has been considered both by reference to his evidence standing alone (a consideration which has led to the conclusion that it has been found to be wanting) and considered (and repeatedly re-considered) by reference to such evidence adduced by the Director which corroborates Mr Kivalu's account. Pursuing either approach, with respect, has led to no different conclusion. 47 No reliance has been placed upon the decision of the Supreme Court of the Australian Capital Territory in R v Kivalu. No reliance has been placed upon that decision, in particular, to prove "the existence of a fact". Indeed, to do so would be contrary to s 91 of the Evidence Act. See: Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582 at [82] per Katzmann J. That section, as Rothman J in R v MG [2016] NSWCCA 304 has observed, serves to: [65] … exclude the use in a proceeding of reasons for judgment to prove the existence of a fact in issue in that proceeding. Such an exclusion applies even where the reasons involve an opinion that indirectly affects the assessment of the probability of the existence of the fact: s 55 of the Evidence Act. Moreover, it applies even where the reasons for judgment are otherwise before the Court and/or admissible: s 91(2) of the Evidence Act. No attempt was made by the Respondents to tender in the present proceeding a copy of the decision of the Supreme Court or its reasons for decision: cf. [2016] NSWCCA 304 at [21] per Meagher JA. 48 The rejection of this part of the Director's case which placed reliance upon the evidence of Mr Kivalu nevertheless left open for consideration the prospect (for example) that Mr Hall on 11 June 2014 said words from which the purpose for imposing the "Blockade" could be discerned. The reservations expressed in respect to Mr Kivalu's evidence should not "poison" any separate analysis of later events. Nor should his evidence be summarily disregarded when considering whether his account - whatever may be the reservations expressed in respect to its own reliability - may nevertheless remain as corroborative of other evidence.

[21]

The meeting at the Praga Café - 11 June 2014 49 There was a level of agreement in respect to the meeting at the Praga Café. 50 There was at least agreement that: the meeting did in fact take place on 11 June 2014. On Mr Moore's account it started after 8.30am; on Mr Hall's account it started after 7.15 or 7.30am; those in attendance were Messrs Hall and O'Mara on behalf of the CFMEU and Messrs Moore and Tonkovic on behalf of Built (with Mr Michael Riley arriving late); and that the topic of an enterprise agreement was raised. But there was significant disagreement as to: the sequence in which topics were discussed; and what was said in respect to each topic. There was also no agreement as to the topic of an "attendant labourer" being raised. 51 It is sufficient to contrast the accounts given by Messrs Moore and Hall. 52 On Mr Moore's account, he tried to contact Mr Hall at approximately 8.30am and the meeting started thereafter. On his account there was the following exchange between himself and Mr Hall: Hall: Can this conversation be 'without prejudice'? Is that okay? Mr Moore understood that what Mr Hall meant by the expression "without prejudice" was that the conversation would be off-the-record. Mr Moore's account of the conversation continued: Moore: Fine, but I reserve the right to stop the conversation where I see fit. Hall: Adam, I've got a solution for you. Moore: What you are doing on my site is illegal. Hall: You can vary the NSW EBA Agreement to include the ACT or sign the existing agreement. Moore: Our NSW agreement expires on 30 June. Hall: Then vary the Victorian agreement. Moore: Those are both non-options as varying an agreement is essentially a new agreement and that would make the agreement non-compliant with the new Code. Hall: This has happened before and it's not non-compliant with the new Code. The conversation, on Mr Moore's account, continued as follows: Hall: The site needs to have an attendant labourer with appropriate skills for identifying unsafe work. We have a guy that you can take on for four weeks. He has a scaffold certificate and rigging certificate. He can sort out your safety issues onsite. Moore: There is no need to have a fulltime labourer on the job. It's a five million dollar job, we have our regional safety manager doing regular audits and the site supervisors are administering our safety system on the job. Hall: That's bullshit. We've seen numerous safety breaches on your site. Moore: We've got a really good safety system and our boys are administering it really well. We've got four staff and no need for an attendant labourer. On Mr Moore's account, Mr Hall returned to the topic of a proposed enterprise agreement and the conversation continued as follows: Hall: Varying an agreement does not constitute a new agreement. Moore: I will make some calls and let you know if I agree with that. Mr Moore then walked out of the Praga Café and called Messrs Giffin and Wilson concerning the question of whether "varying" an agreement constituted a new agreement. Mr Moore then telephoned Mr Hall and the following conversation occurred: Moore: Your options are non-options and you are blockading my site illegally. You need to remove the CFMEU members so my guys can get back to work including the subcontractors. Hall: That's bullshit, I can show you another agreement that has been varied. Moore: That's fine, anything can be varied, but it would still be non-Code compliant based on our interpretation. The conversation ended abruptly, on the account given by Mr Moore, with Mr Hall hanging up. Mr Moore's account of the conversation is substantially similar to the account given by Mr Tonkovic. 53 The contrary account as advanced by Messrs Hall and O'Mara was put by Senior Counsel on behalf of the Respondents (other than Mr Kivalu) to both Messrs Moore and Tonkovic. Mr Moore largely adhered to his own account of what was said and the sequence of it. 54 The account given by Mr Hall departed in significant respects from that given by Mr Moore. Mr Hall maintained that the meeting at the Praga Café started sometime after 7.15 or 7.30am. But this discrepancy between the time given by Mr Moore and Mr Hall matters not. 55 Mr Hall's account of the substance of the conversation was initially set forth in his affidavit. The form in which parts of that account was set forth led to objections being taken and to those parts being rejected but with leave being granted to call further oral evidence. The case largely proceeded upon Mr Hall's account as given orally in his evidence-in-chief. Given the criticism that is sometimes made in respect to affidavits being a "more prepared" and perhaps "edited" version of a conversation, greater reliance can (in some cases) be placed upon an account given orally - especially when the conversation assumes central importance. 56 On Mr Hall's oral account, it was Mr Moore who started off the meeting. His account then proceeded with the following exchange between his Senior Counsel and himself: ... And can you recall, as close as you can to his words, what he said: - He started off saying - it was, "What are you doing? This is illegal. This is illegal" and words along those lines to me. Okay. And did you respond or someone else respond? - I said we had safety concerns - serious ones - about asbestos. Okay. And did you say anything else? - I said we needed to deal with it and I didn't have faith in himself or his company in dealing with it because of my previous - There was then an objection and the exchange thereafter continued as follows: Mr Borenstein: And was there any response to that? - He said to me ... Who's that? - Mr Moore - words to the effect, "Our company has got a good safety record. I've got a good personal safety record. I haven't had anyone killed on my jobs". Right. And what was said after that? - I said, "That's just pure luck." Based on my experience on being on construction sites around the territory I said to him, "Your company is one of the worst performing companies in the way that you're dismissive and I've been on to your sites a number of times, pointed out several safety issues and your management are always quite thankful and they say words to the effect to me that, 'Thank God you're here because now maybe Adam [Moore] and the rest of the management will do something about the safety concerns'." Right. Can you recall what was said next? - Adam said this - he tried to make it about the EBA. He said it's really ... Can you try to remember it.…… object. The witness: Adam said, "Well, let's - words to the effect - Mr Moore said, "I want to deal with the EBA." And what did you say? - I said, "Adam, we have to deal with the serious safety issues of asbestos first. I'm here to talk about that, Adam. I'm not here to talk about the EBA." All right. And what happened after that? - He kept on - Adam kept on pressing the issue. He kept on saying, "No, listen, let's talk about the EBA. I would like to talk about the EBA." Okay. And what did you say? - I kept on - well, it was a roundabout conversation. I could keep on going, your Honour. But I kept on saying, "I'm here to talk about safety and I don't want to talk about the EBA. I do not want it to be confused in that way. I didn't want any suggestion that us dealing with the serious safety issues on your site is anything to do with your enterprise bargaining agreement negotiations." All right. What happened after that was said? - He kept on pressing me. So eventually I said - I want to make it quite clear to both of them ... Both of who? - …to Adam Moore and Joe Tonkovic - I said to them - and Jason O'Mara - "I want everybody at the table to understand this. If we can't progress the safety issue, I want to draw a clear line under it now. I want everybody to understand that this is not to be mixed up - do not want to be - or in the future to be accused that this had anything to do with your EBA." So they - at that point, they all acknowledged that. What did they say? - I got them to individually acknowledge it. What did they say? - Like, yes or no - yes, they all nodded and accepted. I made them individually do it. Okay. And what happened after that? - We talked about options about the EBA. And can you tell us what the options were? - Well, there were problems with the code which - the proposed code which wouldn't allow... Well, can you tell us what was said? - I said to him, "We have options around - we could possibly vary agreements. We've done that with other companies." I gave him an example of another company. Ms Eastman: I object. His Honour: What [did] he say? The Witness: I said to him that there was another company that had - that we've done this and it was successful. We believe we could do the same thing. He said - Mr Moore said, to the best of my recollection - he said, "I take that back - I can't make that decision here. I've got to take back to people in Sydney." And I said, "Well" - at that point - I said, "Adam, is there - you can do that, but is there" - I said to him, "Is there much point negotiating with you if you can't make any decision? Maybe the people from Sydney should get down here." All right. And did he reply to that? - He said he would go back and talk to them. Okay. And was that the point at which the meeting ended? - Well, I think - I believe that there was further that I said to him, "We need to address the safety issues," and I explained them to him and he accepted ... Well ... Ms Eastman: I object. …. The Witness: Actually, sorry, I will retract. I said, "You" - I said to him, "We still have to resolve the asbestos issue", and he acknowledged that. Mr Borenstein: How did he do that? - By saying yes. Mr Hall's account of the conversation is substantially the same as the account given by Mr O'Mara, although there were some differences. Mr Hall, for example, denied that the conversation at the Praga Café started with him asking whether the conversation could be "without prejudice". Mr O'Mara, on the other hand, accepted that the "meeting started off with Dean saying 'Can this conversation be without prejudice? Is that okay?'" Also to be taken into account is the fact that Mr O'Mara acknowledged that it would be "fair to say" that he "kn[ew] bits about the meeting, but I can't give you a start-to-finish". Notwithstanding that qualification, Mr O'Mara's account did render support to that provided by Mr Hall. 57 It will be noted that missing from Mr Hall's oral account of the conversation at the Praga Café was any reference to the topic of an "attendant labourer". Paragraphs of Mr Hall's affidavit which were not rejected included the following: 41. Contrary to Moore's allegation in paragraph 36 of this affidavit, I did not say the site needs an "attendant labourer". I have never used that term and don't know what it means. I also did not say that we had a particular person who could be taken on for four weeks. 42. I also did not say that "we have a guy you can take for four weeks" or "he can sort out your safety issues on site". 43. I said they should employ someone to look after safety on the site. He said he would look into it. I said we had a list of qualified people we could give him and he said "OK". Mr Hall's denial of any reference being made to an "attendant labourer" was tested in cross-examination as follows: Now, do you remember in this conversation that it turned to you suggesting that the site needed an "attendant labourer"? - No. And you've been in court, have you not, when witnesses have been asked about that expression? - No. You haven't? - No. You don't remember any of the witnesses over the past two days being asked about that? - In here? Mm? - I thought you were talking about me being in the box. No, I'm talking about in here. No, I'm not asking you about you being in the box. But you have been sitting in court…? - I've heard - I've heard that term. … listening to the evidence? - Yes. All right? - Bits and pieces, yes. Could you have said rather than "attendant labourer", but an attending labourer or something of that nature? - No. Do you remember using those words? - Never. And you suggested that that they needed to have on site somebody appropriate for identifying unsafe work; is that right? --- I didn't use those words, no. 58 One major divergence between the accounts of Messrs Moore and Hall is that (on Mr Hall's account) he was seeking to address the safety issues first and the enterprise agreement thereafter; on Mr Moore's account, it was Mr Hall who was seeking to elevate the enterprise agreement as the reason for the "Blockade". A further major difference is the divergence of evidence as to whether the topic of an "attendant labourer" was raised. 59 The contrary account as advanced by Messrs Moore and Tonkovic was put to Messrs Hall and O'Mara by Senior Counsel for the Director. There was thus the following exchange, being but one of many, between Mr Hall and his cross-examiner: And it's the case, isn't it, that at no time over these three days did you ever tell anybody from Built that there was an asbestos issue? - That's wrong. And in terms of other safety issues, if you used the word safety, you only really used that as a cover up or a sham to achieve what you wished to achieve, and that was that Built would execute an EBA. Isn't that right? - I don't understand that question. Mr Hall's later rejection of the Director's case was unequivocal.

[22]

The meeting at the Praga Café - a failure to discharge the onus of proof 60 The factual conclusion that is ultimately reached is that the Director has failed to establish - according to the requisite standard set forth in s 140(2) of the Evidence Act and Briginshaw - that the conversation at the Praga Café was substantially as advanced by Mr Moore, and as supported by Mr Tonkovic. The cross-examination by Senior Counsel for both the Director and the CFMEU of those witnesses advancing a contrary case provided no more than an opportunity for each "side" to deny or not admit the opposing case. Little "fell out", with respect, in the cross-examination which provided a reason for accepting one account rather than the other. 61 The conclusion that the Director has failed to discharge his onus of proof does not (accordingly) turn on any consideration of Browne v Dunn (1893) 6 R 67. The conclusion is reached notwithstanding the force of submissions advanced on behalf of the Director that Mr Hall's account should be rejected or not prevail by reason (inter alia) of the fact that: it was Mr Hall (at least on Mr Moore's account) who called for the meeting to be held; and Mr Hall, a person who had previously not taken the carriage of the negotiation with Built for an enterprise agreement, nevertheless came to the meeting with considerable familiarity with the issues presented - the inference being that the meeting was called by Mr Hall so that he could discuss the enterprise agreement. The Director's account also gains some further considerable support when viewed against later developments, including: the fact of the "Blockade" on 11, 12 and 13 June 2014; the anger expressed by Mr Hall when he learnt that Mr Moore had telephoned the police and the attendance of the police on site after the conclusion of the meeting at the Praga Café; and the account given by Messrs Smith and Miller of the events of 11 and 13 June 2014. The Director's account also gains some support from: the acknowledged objective of the CFMEU securing "100% coverage" of enterprise agreements in the Australian Capital Territory. These are but instances of the sources drawn upon by the Director to support his position; the common element being that any finding of fact necessarily has to take into account the entirety of the evidence and the context in which a particular fact emerges for resolution. 62 The force of the Director's submission occasioned considerable reservation before the conclusion was reached that the Director had failed to discharge his onus of proof. In reaching the conclusion that the onus of proof had not been discharged some limited reliance was placed upon: the failure to call Mr Riley to give evidence: Jones v Dunkel (1959) 101 CLR 298. Although he arrived late at the meeting at the Praga Café, his account may have been of some assistance as to how the conversation "ended up". Reliance is also placed upon (inter alia): the fact that if the CFMEU wished to exert pressure upon Built to sign an enterprise agreement, at least one of the points of time to do so would have been prior to granting Built a right of access across the land of the Canberra Tradies' Club - the grant of that right being agreed to on 7 February 2014. Consistent with that chronology and consistent with a conclusion that action was not being taken by the CFMEU to exert pressure upon Built to sign an enterprise agreement is the fact that there was apparently some measure of agreement in late December 2013 as to the terms of an enterprise agreement and the ability to accommodate changes proposed by a new Building Code to be introduced in the Australian Capital Territory with effect from July 2014 (as evidenced by an email from Mr Nikolic in December 2013), although divergences seemed to emerge early in the new year in 2014 (as evidence by an email from Mr Nikolic in January 2014); the rejection of the Director's criticism of the evidence of Mr O'Mara and the conclusion that Mr O'Mara's evidence lends considerable force to - and corroborates - the evidence of Mr Hall; and the finding as to the balance of the evidence of the Director also failing to discharge the onus of proof imposed by Briginshaw v Briginshaw. Greater reliance was also placed on a number of other factors which lent some support for Mr Hall's account, including the fact that: after 12 June 2014 construction at the Project Site apparently continued without any enterprise agreement being signed. The conclusion that the Director has failed to discharge his onus of proof does not necessarily also involve any further finding having to be made that Mr Hall's account is to be accepted. But it is nevertheless further concluded that his account of the conversation should be accepted. To some extent this conclusion is founded not only upon those factors already mentioned but also upon: the demeanour of Mr Hall when giving evidence, albeit demeanour being accepted as a very uncertain touchstone of reliability.

[23]

The Blockade on 11, 12 & 13 June 2014 63 If factual scrutiny be shifted from the meeting at the Praga Café to the other events that were unfolding on that day, the most significant event was the closure of the Hawdon Place Gate. Those events preceded that meeting and continued thereafter. 64 It was common ground that the Hawdon Place Gate was blockaded on 11 June 2014, with the blockade commencing at about 7.00am. The blockading of that gate precluded access being obtained to the Project Site in accordance with the agreement entered into between the Canberra Tradies' Club and Built on 7 February 2014. 65 The meeting at the Praga Café commenced sometime thereafter. 66 On Mr Moore's account, he was advised by Mr Ault that the "CFMEU are blockading the Hawdon Place Gates and they won't say what it's about". The meeting at the Praga Café was then arranged. 67 After the meeting at the Praga Café, Mr Moore maintained that he called the ACT police and the police arranged for a police vehicle to be sent out to the Project Site. On his account, he received a phone call from Mr Hall and had the following conversation: Hall: Did you call the police? Moore: Yes I did. Hall: Don't involve the fucking police. Do you want a war? I will fuck you over. I know a lot of people in this town and you won't be working in this town long. Moore: Dean, I won't be spoken to like that. On Mr Hall's account, the conversation was as follows: Hall: "Why did you involve the fucking Police? It's our land why the fuck involve the Police?" Moore: "I was acting under instructions from the FWBC and the MBA. They told me to do it. They have been telling me." Hall: "You're fucked. Fuck you." Mr Hall did not believe that he said the words "Do you want a war?", "I will fuck you over" or "I know a lot of people in this town". 68 After putting Mr Moore's account of the telephone conversation to Mr Hall, Senior Counsel for the Director pursued her cross-examination of Mr Hall as follows: And would you agree that the tone that you used in this conversation was aggressive? - Angry. You were angry, were you? - Yes. But you were aggressive, weren't you? - Angry and assertive. Assertive? You were seeking to intimidate Mr Moore, were you not? - I was not. You wanted to threaten him … ? - No. … and he made it pretty clear to you that he won't be spoken to like that? - No. And can I suggest to you, you would have absolutely no reason to be so angry because Mr Moore had called the police. Nothing in calling the police could have engendered this degree of anger? - Yes. Your anger stemmed from the fact that you weren't getting your own way about the EBA; isn't that right? - No. Moore wasn't going to come to the party and work around the code, as you've suggested, and that is the thing that made you angry, isn't that right? - No. And Moore wasn't giving into what you wanted to see by way of getting the EBA signed. That's the basis for it, isn't it? - No. Are you sure about that? - Yes. The forensic course being plotted by Senior Counsel for the Director was to rely upon Mr Hall's response as part of the context in which the claim for coercion was to be later advanced in final submissions. Senior Counsel's characterisation of Mr Hall's response as "hysterical", however, was misplaced. Taken in either isolation or in the context of other facts, it has been concluded that this exchange does not discharge the Director's onus of proof and that Mr Hall's account of the conversation should be accepted. 69 An even more important factual dispute between the parties focussed upon the reasons why the blockade was put into place on 11 June 2014 and why the further blockade of the Rosevear Place Gate was put in place on 12 and 13 June 2014. 70 On Mr Hall's account, the closure of the gates at Hawdon Place on 11 June 2014 was occasioned by safety concerns arising out of the prospect of asbestos being located on the land formerly occupied by the Canberra Tradies' Club. 71 By 12 June 2014 any concern on the part of the CFMEU as to asbestos being on the Hadwon Land, however, had been adequately addressed by closing access at the Hawdon Place Gate. By closing those gates, no vehicles or persons could move across the land potentially affected by asbestos. 72 But the closure of those gates left Built able to access the Project Site by using the Rosevear Place Gate. 73 It was common ground that the Rosevear Place Gate was blockaded on 12 and 13 June 2014. 74 It was the case for the Director that the CFMEU's commitment to having an enterprise agreement signed and an "attendant labourer" on site persisted. The blockade on 12 and 13 June 2014, on the Director's case, was but a "continuation" of the 11 June 2014 blockade. Mr Hall's reliance upon concerns as to asbestos or safety was characterised by the Director as a "sham" or a "convenient excuse" cloaking the real reasons for the "Blockade". 75 It is further concluded that the Director has failed to discharge the onus of proof imposed by reference to the Briginshaw standard in respect to either: the CFMEU imposing the "Blockade" as a means of exerting pressure on Built to sign an enterprise agreement and/or to secure the employment of an "attendant labourer"; or the CFMEU's reliance upon "safety issues" as a reason for the continuation of the "Blockade" as a "sham" concealing its true objective of exerting "pressure" on Built.

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The reason for the "Blockade" - the objective of securing an enterprise agreement 76 As is apparent from both the evidence-in-chief relied upon by the Director and the Director's cross-examination of the CFMEU witnesses, a significant part of the case advanced on behalf of the Director was that the CFMEU sought to exert pressure upon Built to sign an enterprise agreement. 77 The importance sought to be ascribed to the CFMEU's attempts to secure an agreement was advanced on a number of different fronts. 78 One front was to suggest that the CFMEU was concerned at the fact of a builder constructing a building so close to the Canberra headquarters of the CFMEU where the builder did not have in place an enterprise agreement. This was part of the evidence given by Mr Kivalu and was the topic sought to be advanced by Mr Hall at the Praga Café meeting. There was, accordingly the following exchange between Mr Hall and his cross-examiner: … Did you make it clear to Mr Moore that you wanted to get this EBA signed? - I - I would like to get an EBA signed, yes. And you particularly wanted this EBA signed because it just irked you, did it not, that there was a construction site right under your nose - the CFMEU offices - where there was no EBA in operation? - No. That would have been somewhat embarrassing, wouldn't it? - No. You would have been mightily unhappy that right under your very nose, here, there was a construction and no EBA? - No. That would have brought some shame, would it not? - No. And it didn't meet your intention of having 100 per cent coverage? - Unfortunately, it didn't. And if you weren't able to get somebody literally under your nose to sign an EBA, that would have been something where you would have wanted to bring some pressure to bear to achieve that outcome of 100 per cent coverage; is that right? - No. No. No. And you had been asked specifically by Mr O'Mara to become involved to put that pressure on Built to execute the EBA? - No. That's right, isn't it? - No Mr O'Mara was equally dismissive of the same suggestion when made to him. During Mr O'Mara's cross-examination there was thus the following exchange: And was it the case that you decided to chase them up because it frankly wasn't a good look to have a construction sites so close to the headquarters where the builders on the construction site didn't have an EBA. That's not a good look, is it? - We endeavour to get … No, no? - … EBAs to everyone. No - no. That's not correct. It's not a good look, is it? It's not a good look, is it? - It's - EBAs aren't about a look. It's about … Well, it's embarrassing, isn't it, for there to be a construction going on, in effect, under the nose of the CFMEU headquarters and there not to be an EBA in place? - No. I … That would be very embarrassing, would it not? - I don't believe so. If that became a matter of public knowledge that would cause some concern to the Union, would it not? - I don't believe so. Another exchange with Mr Hall occurred after he was taken to an email exchange in which Built were raising concerns as to whether the proposed agreement was compliant with - or would be compliant with - the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014. There was thus the following exchange again between Mr Hall and his cross-examiner: Can I suggest this to you, that the reason that you became involved on 5 June, was that it was looking pretty obvious that the concerns raised by Mr Moore was a pretty clear indication to you that Built were not going to enter into an EBA? - No. And can I suggest that that would have annoyed you - and I might use a more common phrase - you're pissed off about that, weren't you? - About what? That Built was raising issues about code compliance and that gave an indication in your mind that Built wasn't going to be signing the proposed agreement? - Built had been indicating - I believe - I've been told that they were going to sign the agreement. The later involvement of Mr Hall in the negotiations to bring about an enterprise agreement signed by Built, namely at a point of time close to the events that occurred on 11, 12 and 13 June 2014, was part of the context relied upon by the Director as a reason for discrediting his account of the conversation at the Praga Café on 11 June 2014 and part of the reason for accepting the account given by Mr Moore. 79 Others involved in the events of 11, 12 and 13 June 2014 had but little knowledge as to why they were there - other than because they had been asked to attend. Mr Smith, for example, had been an organiser of the CFMEU since 2012. But, at the time, he was an organiser with the Forestry and Furnishing Products Division of the Union. It was not until January 2015 that he joined the ACT Branch of the Construction and General Division of the CFMEU. When cross-examined as to his attendance on 11 June 2014 there was thus the following exchange: Well, at this stage aren't you working for the forestry side of things? - That's right. And what possible part of your role would involve you turning up at the gates in Hawdon Place on 11 June? - Asked by another division it's not unreasonable to - to offer your support. Separate divisions can still - it wouldn't be unreasonable or unusual to assist or to offer your support. Were you directed to attend? - No. You went voluntarily, did you? - I was asked to attend and I voluntarily went. And who asked you? - I can't recall. Mr Hall? - I can't say. A little later he explained his knowledge of why he was asked to attend as follows: Well, do you remember what you were told at all? - Not in so many words. No. Not in exact words. I understood there was a general concern about safety, but I was not told anything of that nature. Well, what was the general concern about safety that you were told? - That - exactly that. That there was concerns about safety. What sort of safety? I mean, safety could be tripping over a wire, couldn't it? Or it can be something quite significant? - Well, I wasn't made aware of the specifics at that stage. Did you ask? - No. Well, if you've been taken away from your normal duties to go and stand on a winter's morning in front of a gate surely you would have asked, "Why do you want me to come down? What's this about?" Surely you would have asked for that, Mr Smith, wouldn't you? - Well, I didn't. Although it may have been expected that a person of Mr Smith's seniority within the CFMEU would have asked why he was being asked to attend, his evidence is accepted. Had Mr Smith at the time been within the Construction and General Division of the CFMEU, it may have been expected that he would have greater knowledge as to matters of concern to that Division; but it was not to be expected that his position within the Forestry and Furnishing Division would necessarily expose him to more generally expressed concerns of the CFMEU in respect to a specific building site. Nor, with respect, did his cross-examination expose any reason to question the account he provided. 80 Mr Miller (also known as "Dusty") also sought to characterise his presence as simply occasioned by a request to be there, albeit as a person with limited knowledge of why that request had been made. When cross-examined, there was thus the following exchange in relation to his attendance on 11 June 2014: Well, if Mr Hall gave some evidence that he directed you and others to attend the Hawdon Place gate site, would you take issue with that? - I can't recall who instructed me to attend that day. Someone from the union told me to attend that morning, so I attended. But it could have been Mr Hall? - I've no recollection who it was. When you say you've got no recollection, is it the case that you just can't say one way or the other because you don't remember? - That's right. If Mr Hall had asked you to attend, do you think it was he who told you the matters that are set out in paragraph 7? - If Mr Hall had have asked me that - I can't recall. It could have been someone else, because Kivalu was - thought he was the boss back then. Basically it was there because the asbestos problem in that site, and the cars driving through that site might cause a problem. A little later, there was also the following exchange (without alteration): And I think you've said that you were a soldier on the day. Is that right? - I was just there as one of the organisers. I come along. I wasn't involved in any discussions with the company about the safety on that job. Okay. And in terms of what you were told to do - your instructions were to make sure no one could come in through the gates at Hawdon Place. Isn't that right? - Well, I was there to let people know there was a problem with asbestos on that site. Well, if you were there to let people know that there was problems with asbestos on the site, who did you let know that morning? - I don't think I had much to do it. I just there with the group. 81 When cross-examined in respect to his attendance on 12 and 13 June 2014, there was a similar exchange as follows: Now, you attended a blockade on 12 June outside the front of the Rosevear Gates, isn't that right? - The 12th? 12 June. The next day? - That was around the gate around the front? Yes. You went there? - Yes. Who told you to go there? - One of my colleagues. All right. You can't remember who? No. And you were told, weren't you, that you were to prevent anybody accessing the site through that gate? - No. It was a community protest about safety. And you knew that if you prevented anybody accessing the site through that gate that there would be no work done on the site that day. You knew that? - It shouldn't be done if there are safety concerns and those safety concerns have to be addressed. You saw no Franna cranes on the morning of 12 June did you? - I can't recall. You saw no concrete trucks on the morning of 12 June? You saw no concrete trucks on the 12 June? - I think they were planning … Do you need to think about that? - … to bring them in there. I think there was a plan to bring trucks in. 82 The accounts given by Messrs Smith and Miller have necessarily to be considered both by reference to the explanations provided as to their presence and their knowledge - but also by reference to evidence that Messrs Smith and Miller were also heard to say that nobody was allowed on site "because Built doesn't have an EBA" and that Built "should sort this out, sign the EBA". Albeit with considerable reservation, it is concluded that the explanation provided by Messrs Smith and Miller as to why they were present on site, their limited state of knowledge as to what was happening on Site and their state of knowledge as to why they were asked to be present is to be accepted. 83 Notwithstanding the necessity to consider (and re-consider) evidence in its entirety, it is respectfully concluded more generally that this part of the case advanced on behalf of the Director fails. 84 No satisfactory conclusion can be reached, founded upon the standard required by Briginshaw, that the negotiations between the CFMEU and Built for the execution of an enterprise agreement formed a part of the reasons for the "Blockade" on 11, 12 and 13 June 2014. This part of the Director's case does not sit comfortably with the fact that: the negotiations had commenced in mid-2013 and were on-going; the construction of the Kim Harvey School of Dance started in February/March 2014 without any apparent earlier like industrial action; and there remains no enterprise agreement signed by Built with the CFMEU. The Director's suggestion that the email exchanges concerning the negotiations were "copied in" to Mr Hall by 5 June 2014 and that the timing of those emails exposed a concerted effort to exert pressure on Built is also rejected. 85 It is further accepted that the "Blockade" that did occur on those days had the potential to prejudice or was "detrimental" to the progress of the negotiations for the completion of such an agreement. Thus, during the cross-examination of Mr O'Mara as to a conversation that he was alleged to have had with Mr Hall, the following exchange occurred: … What he actually said to you is "I now think we've got something we can hold against Built, and this will get them to agree to the EBA". That's how the conversation went, didn't it? - I don't believe so. That's exactly how it went, did it not? - No, it's not. You and he thought that this would be the exact lever that you would need to put pressure on Built to sign the enterprise agreement? - I do a lot of safety - a lot of EBAs… I'm not asking you what you do, Mr O'Mara. I'm not asking you what you do with other EBAs. I am asking you a fairly direct question, which I would like an answer? - Stopping their access to the job would be detrimental to getting the EBA signed. Stopping their access to the job would put pressure on them to come to the party to the terms you wanted, and that was the purpose of you and Mr Hall saying "Let's see if we can use the asbestos lever to get what we want". Isn't that right - That's not correct. That was the sole purpose of you and Mr Hall deciding the site was - quote - too dangerous to allow continued access? - That's not correct. In re-examination the following exchange was directed to what Mr O'Mara had meant by the term "detrimental": … And you said words to the effect, stopping the site would be detrimental to getting the EBA signed? - Yes. Do you remember saying that? - Yes, I do. Could you explain what you mean by that? - Well, you know, standing up to a builder for safety issues doesn't put him on your Christmas card list and, you know, so by sitting in the middle of an EBA - EBA negotiations and having issues around safety doesn't, you know - the easy thing would have been to let them go, let the risk go and try and push through with the agreement. You know, the courageous thing for us to do was to stand up for the safety issues and, you know, if it blew the EBA it blew the EBA. That exchange, it is respectfully considered, forms a further reason to maintain reservations as to the case sought to be advanced on behalf of the Director, and contributes to the conclusion that the Director has not discharged the onus of proof required by Briginshaw.

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The concern as to asbestos - 11 June 2014 87 It is accepted that the CFMEU had a concern as to asbestos on the Project Site; that the concern relevantly arose by reason of a conversation between Mr Brennan and Mr Hall on 10 June 2014; and that as a result of that concern it was decided to immediately close the Hawdon Place Gate so as to avoid disturbing any asbestos until further testing was carried out. The concern as to asbestos was the prospect of asbestos being located on the land formerly occupied by the Canberra Tradies' Club, being the land over which the right of access had been granted to Built on 7 February 2014. There was no concern as to asbestos being located on the Project Site itself. A map of the Canberra Tradies' Club site shows "stockpiles" of asbestos, or suspected asbestos, including "asbestos pipes" close to that part of the land over which the right of access had been granted. 88 Concerns as to the costs to be potentially borne by the CFMEU in remediating the site was one concern; another concern, however, remained safety. So much emerges from a number of references in the documentary and oral evidence. It is sufficient for present purposes to make reference to the following exchange between Mr Hall and his cross-examiner when it was suggested to Mr Hall that Mr Brennan had not raised a concern as to asbestos on 10 June 2014: He said nothing to you about asbestos on that site on 10 June, did he? - I'm sorry? He said nothing about asbestos… ? - No, he did. …on 10 June? - He did. Are you sure about that? - Yes. You can remember that clearly? - I remember it because it was in the middle of the Mr Fluffy issue and asbestos was a trigger point. I'm not asking you about that. I'm just about the conversation on 10 June, and what I'm putting to you is he said nothing about asbestos on that day, did he? - He did. He did. And you're sure of that? - 100 per cent. And what did he say, then, about the asbestos? - I can't recall the exact details. But you just remember that he said something about asbestos? - I - no, he said something along the lines of, "We're getting ready - the - the block - there's a problem with the block. The government has identified a problem. They believe asbestos is on the block. This could cost a lot of money. We will be responsible. Could run into hundreds of thousands of dollars." So your main concern was the cost of the remediation? - No, that - no, that was Mr Brennan's. Mr Hall's professed concern arising from the prospect of asbestos being on site was further tested in the following exchange: … But you jumped to the immediate conclusion that it was all over the site, the whole site? - Could be. In my experience as a person who has been involved in numerous issues with asbestos on construction sites, yes. Well, if you in your capacity as the chair and a director [of the Canberra Tradies' Club], formed a view on 10 June that the asbestos was all over the site…? - Possibly could be. ... why didn't you ring WorkSafe immediately? - Because I can take control of the situation myself. What, to clear it yourself? - No, we could shut it up and then get the testing done. What are WorkSafe going to do? If - well, you didn't ring them, did you? - But what are WorkSafe going to do? They don't conduct testing. And did you make any inquiries yourself to confirm the view that the asbestos was all over the site? - What, I was going to do a physical inspection of an asbestos area without contamination gear on? I'm asking you whether you made any independent inquiries or not? - I'm not an assessor or a removalist. You just believed what Mr Brennan told you, is that right? - No, what I did as a duty of care as the director of the company, I took a very conservative position, which was protect the company from possible litigation. But I - as a secretary of a union who's concerned about people's Occupational Health and Safety in their life, I took the position that I wasn't going to risk workers or the public being contaminated. But in terms of your knowledge of what was on the site, it was based entirely on what Mr Brennan told you, isn't that right? - Yes. And as far as you knew, Mr Brennan's understanding was based entirely on what someone from the government might have told him at some unidentified point in time. Is that right? - I wasn't prepared to take the risk. The topic was further pursued a little later as follows: Did you ask anybody whether there was any danger in anybody having access to the land? - I don't understand your question. Well, you said you had decided it was too dangerous to allow continued access to the land? - Yes. We didn't want to disturb any potential asbestos. But you didn't know whether there was any there? - When - I wasn't prepared to take the risk. And so how did you form the view that it was too dangerous? - Because of my experience with asbestos. And had anything happened in the preceding days and weeks before 10 June that had come to your attention as being any potential danger? - Where at? On this site? - No. And so the only thing you did was that you formed a view that it was too dangerous. And if you have a look at paragraph 12, you say the three of you decided that you should go down and make sure no one accessed the site? - Yes. The reference to "the three of you" is a reference to Messrs Hall, O'Mara and Jennings. 89 This concern expressed by Mr Hall is accepted. But no matter how genuine his concern may be by reason of asbestos, there remains open the prospect that even a genuine concern as to safety may nevertheless be relied upon as a convenient "excuse" for exerting pressure on Built. 90 Notwithstanding a general acceptance of this evidence of Mr Hall, some aspects of his evidence nevertheless occasion concern. There was (for example) his professed insistence that he telephoned Mr Moore on the afternoon of 10 June 2014 with a view to informing him of the asbestos issue. But there was no telephone record of any such call having been placed using Mr Hall's mobile phone. Mr Hall suggested that he may have used Mr O'Mara's telephone to call Mr Moore. And Mr O'Mara's telephone records do disclose a telephone call to Mr Moore at 2.28pm on 10 June 2014. Mr O'Mara said that he did not believe that he "got through to him" and believed that "we were calling him about the asbestos the next day". But it emerged that Messrs O'Mara and Hall were not together at about that time as Mr O'Mara called Mr Hall at 2.29pm. 91 Some criticisms advanced on behalf of the Director as to the conduct of Mr Hall and his response to being told by Mr Brennan on 10 June 2014 of a concern as to asbestos, with respect, missed their mark. The Director's submission, for example, that "the blockade was targeted to inconvenience Built and Built alone" because a genuine concern as to asbestos would have led Mr Hall to notify the neighbouring properties, is rejected. If the asbestos remained undisturbed, pending further testing on site, there was no immediate danger. 92 The genuineness of Mr Hall's concern as to safety, however, remains a reason to question the case sought to be advanced by the Director. It contributes to the conclusion that the Director has not discharged the onus of proof required by Briginshaw. The Director's submission, that there was no "credible" evidence upon which Mr Hall could base his concern, is rejected. 93 Mr Hall's expressed concerns as to safety occasioned by the need to resolve any dangers presented by asbestos are also accepted as the reason why the Hawdon Place Gate was closed on 11 June 2014.

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The concern as to traffic - 12 and 13 June 2014 94 It is also accepted that the CFMEU had from the outset a concern as to the safety of children and others walking in close proximity to the Project Site. 95 It is further accepted that the CFMEU's concern could not be summarily dismissed. Thus, for example, when cross-examined as to the instructions that he would have given to Mr Brennan when negotiating the terms of access to the site in February 2014, Mr Hall was taken to an enlarged aerial photograph of the Project Site and the following exchange occurred: I'm asking what you remember doing? - I would have an emphasis on safety. I would have said to him that - "Whatever they do, make sure it's safe." "Make sure it's safe." Well, safe in terms of - safe for the workers using that access point? - And safe for the public. There's a lot of houses in that area and a lot of people walk their dogs and stuff. All right. Well, just show me where a lot of houses are on that map, please? - There's a whole suburb called Dickson. Here is a whole suburb called Downer. All right. But in terms of…? - Here is a school. There's, like, this college, which is an 11 and 12 facility. In the ACT, it's called a college and that's just here and they use this part here - this very big thoroughfare where they walk along the treeline ... the drain. All the college kids walk along here - all the kids that walk into the primary school just here - the kids use this area to walk through. All right? - I said, "Make sure they don't run over anyone." All right. So your concern for safety was primarily about pedestrian access? - At that time. Yes. For children; is that right? - And the general public. A little later the following exchange also occurred: But do you agree, just looking at the map there that on the part that's marked 76, there's no residential houses on that part of 76, is there? - No that's a sports oval … if you're going up … that's … But no residential housing there? - No, only children playing sport. 96 The concern for safety, it is concluded, continued on 12 June 2014 and became an issue when any heavy vehicle traffic could only gain access via Rosevear Place and via the Rosevear Place Gate. It matters not, with respect, that the CFMEU witnesses agreed that on that and surrounding dates they had not seen any heavy vehicles such as cement trucks. The stage of construction was such that a concrete pour was foreseeable, and founded a concern to ensure that a traffic management plan was in place. Such, too, it may be noted, was the concern of the WorkSafe inspector (Mr Mason) who issued the Prohibition Notice on 13 June 2014. The basis for issuing that Notice was expressly stated to be due to "serious concerns regarding workers and public safety due to the proposed movement of construction plant and equipment through the preschool carpark with the current traffic management systems in place". 97 Mr Hall's expressed concerns as to safety occasioned by the prospect of increased traffic (including possibly heavy vehicle traffic) seeking to gain access to the Project Site by means of the Rosevear Place Gate are accepted, and are accepted as the reason why the Rosevear Place Gate were closed on 12 June 2014. 98 The Rosevear Place Gate remained closed on 12 and 13 June 2014. WorkSafe inspectors arrived on site on 13 June and issued Built with Prohibition Notices. After they were issued, the safety concerns arising from traffic were resolved and the blockade lifted.

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More generally expressed concern as to safety - the need for an attendant labourer 99 The CFMEU's concern as to safety, it may further be noted, also impacted upon the Director's case that the CFMEU demanded - and brought pressure to bear upon Built - that Built should employ an "attendant labourer with the appropriate skills to identify unsafe work". This demand was said, on behalf of the Director, to have formed part of the conversation at the Praga Café on 11 June 2014. Separate from any assessment as to whether Mr Moore's account of that conversation should be accepted in preference to that of Mr Hall's account, is the following denial by Mr Hall during his cross-examination: And the only reason that you authorised the continuation of the blockade for the 12th and the 13th was that you wanted to put as much pressure as possible on Mr Moore; is that right? - No. You wanted him to agree to your proposal to employ an attendant labourer? That's what you wanted to achieve; isn't that right? - No. I wanted them to have someone on the site who knew what they - to do with safety. But in re-examination, when being questioned as to why he would only speak to Mr Moore and not to people "below Mr Moore on safety issues", the following exchange occurred: And you said that you'd had no satisfaction in speaking to people below Mr Moore on safety issues previously, and that was…? - Yes. …was the reason, and you were challenged on that, and it was suggested to you that you had made that up. Now, can I ask you to tell the court of the previous occasions with this company where you've had safety issues where you haven't been able to get resolution without Mr Moore? - Yes. Once was - and these are the ones I can recall - the Mort Street job that we - cutting MDF, which is particle board which has formaldehyde in it. When you cut that board, you're meant to have it in encapsulated work spaces with breathing apparatus because it is a carcinogen - cancer causing substance, and they didn't do it, and we got reports from there, and I went down there and found workers covered in it, and I told them that they had to do something about it. Well who did you tell? - Told the project management team. I can't remember exactly who, but they were present. It would have - most likely have been Mr Tonkovic because he was there. MS EASTMAN: Your Honour, I object to this? - It was the project management team, but as a result, I went back to the site to check it they had finished it, and they hadn't changed their practices. On another occasion the Australian War Memorial, they were cutting - doing the same technique inside one of the walls that they were building, and we pointed out again to Mr Tonkovic that you must set up a special containment area with - with suction devices to make sure that you - you don't contaminate workers, and workers must have the appropriate personal protective equipment on. They hadn't done that again. I went back two days later, and they did the same thing - they had done the same thing. On the actual site itself, I had been on there on - on two occasions. MR BORENSTEIN: You mean the site? - This - the Kim Harvey School of Dance. On one occasion, I entered the site and there was a crane - an outrigger crane operating without its outriggers out lifting sheds in - in to place, which can potentially make the crane topple over. I pointed it out to Norm Ault what the situation was, and he said, "Yes. No, you're right, Dean. We're just in a hurry. We've got to do it. I'm glad you're down here and pointing out all these things to management, and they won't listen. I will take it up". On another occasion, I went on to the same site, and I found that they had one access point into the - into the - into the excavation. They had no external other access points. They had form workers sitting up on top of a form wall without any fall protection. The actual access point into - across the top of the ramp into the pit an excavator had cut a trench for the stormwater, and they were flopping down formwork planks on occasion when a worker needed to get in and out. I explained - they had a concrete pump on site at the time doing - filling in the walls, and they had a Franna crane on site doing work, and I said, "In the event of an accident…" No, who did you say it to? - I said to Norm Ault. I said, "In the event of an accident, Norm, and that concrete pump goes down or that crane comes down and it goes across the walkway," which - was also designated - he admitted, Norm did, that they were using it both for vehicle access as well as pedestrian access, which is against - you're not allowed to do that. You're meant to have separate access points so people don't get run over - I said to him, "If you have an accident, and that concrete pump comes down," which is, unfortunately, not uncommon in Canberra, "or that crane falls over," which is, again, not uncommon; we have the worst work and health and safety record in the country… Just keep going? - But, anyway, it goes down - and he said to me, "No, you're right, Dean. I've raised that with management on a number of occasions, and, you know what? Thank God you're here because now they will do something," and, as a result, he - he shut the site down and sent everyone home, and he said to me, "What do you reckon if we can leave the plumbers here just to put the stormwater in". I said, "That makes sense, because - will that recreate the access down to the - to the - to the job by the - the ramp?" And he said, "Yes." He said, "I'm going to send everyone else home. I'm going to get on to a scaffolding company now. I'm going to establish a second access point for emergencies". Although these specific concerns were not addressed by the evidence advanced on behalf of the Director, it is to be recalled that Mr Moore during the meeting at the Praga Café on 11 June 2014 maintained that Built had "a good safety record". 100 The concern of the CFMEU in respect to safety, and its concern to secure on site a person with recognised skills in safety, was thus not one which was unfounded - at least as far as Mr Hall was concerned. The significance to be attached to this concern, however, as with many of the CFMEU's concerns, was equivocal. On one view, its concern may be seen as the very reason why (as the Director would have it) the CFMEU made its demands upon Built and employed the "Blockade" as a "sham"; on the other hand, the CFMEU's concern may be seen as a matter which had long been outstanding and that needed to be addressed and a matter not forming any part of the decision-making process in respect to imposing the "Blockade". 101 An unfounded concern as to safety may well have more unequivocally supported the inference sought to be advanced by the Director. On balance, however, the concern of the CFMEU was not unfounded and provides a further reason for concluding that the Director has not discharged the onus of proof as required by Briginshaw. It is further separately concluded that the purpose sought to be achieved by the closure of the Rosevear Place Gate was founded upon concerns as to safety, as was the evidence of (inter alia) Mr Hall.

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This is an EBA issue & Built doesn't have an EBA - 11 June 2014 104 The evidence sought to be attributed to Mr Smith is to be found in the evidence of Mr Ault. Mr Ault was employed by Built as the site foreman on the Project Site. 105 Mr Ault did not file an affidavit but gave oral evidence pursuant to a subpoena requiring his attendance. He gave evidence as to seeing Messrs Hall and O'Mara leave the site on 11 June 2014 to attend the meeting at the Praga Café and the following exchange then occurred with Senior Counsel for the Director (without alteration): … And what was Mr Horsham doing? - Mr Horsham waited with myself. All right. And what did you do as you were waiting? Where did you wait? Do you remember? - So if - my car is not in that picture, the 207, but my car was next to Joe's - out of the picture - so Andrew Horsham and myself stood there. I think we had a cigarette. At that time another union official walked over to our cars. Do you remember who that official was? - Zac Smith. All right. And how did you know it was Zac Smith? - I had previously met Zac Smith on another Built job in town. All right. So he walked over to the car? - Yes. And what happened when he approached the car? - Am I allowed to swear in here? Yes. You can swear. Just say - you've got to tell the truth, Mr Ault? - Yes. Yes. And if they're words that you think might be rude in a court, don't worry. His honour has probably heard them all before? - Yes. So Zac - Zac approached Andrew and myself. What I can recall, the words were - Zac Smith said, "This is an EBA issue. This is bullshit. It should have been sorted out at Mort Street. 106 Mr Horsham, who was said to have been present during this exchange, gave no account of these words or like words having been said. According to Mr Ault, for example, Mr Smith came over and spoke to both himself and Mr Horsham. Mr Ault's cross-examination proceeded as follows: Now, you then gave some evidence about a conversation that you had with Mr Smith and this evidence is at page 198 of the transcript going over to 199. Now, you say that he came over to you and Mr Horsham on that morning? - Yes. Are you clear about that? - Yes, a hundred per cent. Do you say that he spoke to the two of you together? - Yes, he did. And so Mr Horsham would have heard everything he said? - Yes, he would have. And you say that he said to you - I will just find his exact words - "This is an EBA issue. This is bullshit. It should have been sorted out at Mort Street"? - Correct. Right. And you were asked whether you remember if Mr Horsham said anything in response and you said, "No"? - Not that I can recall, no. Nor did Mr Kivalu give a similar account to that provided by Mr Ault. 107 Mr Smith's account of the same exchange as extracted from his affidavit was as follows: Ault: This is about the EBA isn't it. Smith: I don't know about the EBA. I have been working in Sydney with the FFPD. Ault: I have been telling them to get the EBA sorted. Smith: It has dragged on for 12 months, but the Code hasn't helped. Messrs Miller, Lomax, Hamilton and Vitler, who were said to have been present when Mr Smith is said to have made this statement, deny that Mr Smith made any such statement. 108 The account given by Mr Smith was an account returned to on a number of occasions during his cross-examination, including the following exchange: Do you remember approaching Mr Ault when he was at his vehicle? So you walked away from the gate or do you recall Mr Ault coming towards you at the gate? - I remember Mr Ault calling out for me and I came over to him. Right. Are you sure about that? - I am sure about that. Okay. And when you went over to him you said to him, "This is an EBA issue. This is bullshit. It should have been sorted out at Mort Street". Do you remember saying that? - I didn't say that. Are you sure about that? - I'm sure about that. You have a clear recollection of it? - I have a fairly clear recollection of those events. Yes. There was also the following exchange when Mr Smith was taken to the words used in his affidavit: You didn't say to him at any point in time, "I don't know anything about the EBA", did you? Sorry. At the end of paragraph 16, I replied, "I don't know about the EBA". Do you remember saying that? - I remember saying that. Are you sure about that? - I'm sure about that. But you still had a conversation in which you say, "It has dragged on for 12 months but the code hasn't helped"? - That's right. Do you see that that's somewhat inconsistent? - No, I don't think so. But can I suggest to you that you've made up the matter set out in paragraph 16 and 17 to address what you understand to be the allegation concerning you? That you are the one who initiated the conversation by saying: This is an EBA issue. This is bullshit. It should have been sorted out at Mill Street. Isn't that right? - I reject that. 109 The evidence as to the statement sought to be attributed to Mr Miller on 11 June 2014 is to be found in the evidence of Mr Horsham and Mr Ault. 110 Mr Horsham gave evidence as to arriving on site on 11 June 2014 at about 6.50am and at having seen Mr Hall drive off, presumably to the meeting to be held at the Praga Café. His evidence then referred to the police arriving at about 9.15am. At about 12.45pm he then gave an account of a conversation with Mr Miller. Mr Miller was apparently seated in his car and got out of the car and approached Mr Horsham and Mr Ault. The conversation, according to Mr Horsham, was as follows: Miller: Why is the crane onsite? Horsham: To clean the Site to create a safe passage for workers. Miller: That's bullshit, nobody is allowed on this Site today. Horsham: Why is that Dusty? Miller: It's because Built doesn't have an EBA. Horsham: Can you repeat that Dusty? Miller: I am going to call RAR. "RAR" was the crane company on site that day. Mr Horsham maintained that the Franna crane arrived on site at about 12.45pm on 11 June 2014. 111 Mr Ault gave a very similar account. During his examination-in-chief, there was thus the following exchange: … Now, did you speak to anybody else about the Franna crane coming on to the site? - At around - a little bit after - it might have been a bit later, halfway through 11 o'clock, 11.30, sort of quarter to 12, I noticed a blue Ford Falcon drive up through the car park of the child care centre, and approach the Rosevear Gates. I noticed that it was Dusty Miller driving the car. Right. And did anything happen when you noticed him driving the car? Did you do anything? - I didn't do anything. Andrew and I then heard Dusty say to us, "Are you planning on using these gates for access?" And what did you say? - I responded with, "Yes, I've just rang Tony Vitler." He said, "That's bullshit. You don't use…" Sorry, again, not… ? - He - he said… So he said, I said? - Yes, he said that's… So you said, "I've just rang Tony Vitler"? - Yes. All right. Then who said what next? - So Dusty Miller then said, "That's bullshit. You don't have an EBA. You won't be using this access." And as I was trying to explain to him, Dusty - I said to Dusty, "Dusty, I've spoken to [RAR]. I'm aware that [RAR] have an EBA with the CFMEU, and I've asked - specifically asked to make sure they bring a dogman as well." … What does that mean? - So a dogman is someone that assists with the crane driver. All right. And why would that be necessary? - Sometimes with a Franna crane they come with a dogman, sometimes they don't. But it's always good practice to make sure they have a dogman. 112 Mr Miller denies this account and the words attributed to him

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Miller's statement "Just sign the EBA" - 13 June 2014 113 The evidence relied upon by the Director as to the statement sought to be attributed to Mr Miller is to be found in the evidence of Messrs Nikolic, Stafford and Horsham. At the time, Mr Stafford was a Fair Work Building Industry Inspector. 114 Mr Nikolic maintained that as he approached the Project Site on 13 June 2014 at approximately 7.00am, he was advised that "the Rosevear Place entrance has been blocked". He proceeded to approach the Project Site and was "confronted with about 20 or so persons wearing 'Hi-Vis' clothing with CFMEU insignia". These persons were standing in a line in front of the gates, about two persons deep. He recognised some of them to be CFMEU organisers, including Mr Kivalu and Mr Smith. He also recognised a person he believed to be "Dusty" Miller. There was then a conversation directed to the sub-contractors that were also present to the following effect: Kivalu: There is no work today, the Site's unsafe. Nikolic: This is an illegal blockade you have a right to work. Kivalu: The Site is unsafe don't listen to these fucking cunts. Nikolic: Good morning to you too, Fihi. About 30 minutes after arriving at the site, Mr Nikolic overheard Mr Miller say to an employee: Just sort this out, sign the EBA. The employee asked Mr Miller to repeat his comment, but another organiser told Mr Miller words to the effect: Don't say anything. Mr Nikolic was standing about five metres away when he overheard these words being spoken. He thought it was "an amazing admission about why they were there". 115 Mr Nikolic turned to Mr Stafford and inquired whether he also heard what was said and Mr Stafford is said to have replied in the affirmative; later Mr Stafford said that he did not hear what was said. 116 Mr Stafford's account of the events was a little different. His evidence was perhaps the most impartial and most reliable of the witnesses relied upon by the Director. As he explained in his cross-examination, his role on the day was "just as a witness and to assist any industrial relation interpretation". 117 Mr Stafford stated that on 13 June 2014 he met with Mr Walker and approached the Rosevear Place Gate at about 7.30am. He could see "11 or 12 people in CFMEU hi-vis jumpers". He recognised Messrs Vitler, Hamilton, Kivalu, Lomax and Smith. As he approached the gates, Mr Hamilton came forward and made comments directed generally to those present: Hamilton: The Site is closed as there are major safety issues. Stafford: We have not been told by the head contractor or WorkSafe that there are any issues on the Site. Hamilton: There are major safety issues on the site. Mr Stafford also heard Mr Kivalu yell out: Fuck the ABCC! Fuck the MBA! He knew it was Mr Kivalu because he recognised his voice. The police were called. After the police arrived, Mr Stafford stood just outside the Rosevear Place Gate and heard Mr Miller say: Sort out your problems with the union. Mr Nikolic turned to Mr Stafford and, on Mr Stafford's account of the conversation, the following exchange occurred: Nikolic: Did you just hear that? Stafford: Yes. He just said sort your problems out with the union. Nikolic: No, Dusty just said "sort this out, sign the EBA". Mr Stafford turned to one of the Built employees, but could not recall whether it was Mr Ault or Mr Horsham, and the following exchange then occurred: Stafford: What did Dusty just say? Built employee: Sort this out, sign the EBA. He asked the employee to repeat what he had heard and he again said: Sort this out, sign the EBA. Mr Stafford did not say anything in reply as he was "shocked that Dusty [Miller] had just said that". 118 Mr Horsham gave evidence that he arrived on site on 13 June 2014 at about 6.10am. He observed between 10 and 12 CFMEU officials, including Messrs Lomax, Kivalu, Miller, Smith and Vitler. He gave the following account of a conversation between himself and Mr Miller: Miller: You guys can get this sorted out pretty easily. Horsham: How? Miller: Sign the EBA. Horsham: Could you repeat that? At this stage, according to Mr Horsham, most of the CFMEU representatives told Mr Miller to "shut up". 119 Mr Miller denied the words sought to be attributed to him. Similarly, Messrs Smith, Hamilton and Lomax said that they either did not hear Mr Miller say the words sought to be attributed to him or did not recall him saying those words. Mr Vitler was not present at the time.

[32]

Two worrying exchanges on 11 & 13 June 2014 120 These two accounts of what was apparently said by Mr Miller and Mr Smith on 11 and 13 June 2014 are truly worrying. 121 If the Director's account be accepted, they occasion some considerable reason to re-visit the earlier conclusions as to the Director having failed to discharge the onus of proof according to the Briginshaw standard. If accepted, there is considerable merit in the proposition that Messrs Smith and/or Miller got their information as to the reasons for the action being taken from some source; the account not being simply something that each made up as "something to say". If accepted, one or other of these two accounts of what was said may lend some colour and support to the other like evidence sought to be relied upon by the Director. 122 The "flip side" of this same consideration is the fact that the Director has failed to discharge the onus of proof in respect to other matters of evidence but, more importantly, Mr Hall's evidence has been accepted as to the purposes he sought to achieve in taking the action that he did. But for the acceptance of Mr Hall's evidence as to purpose, and had the conclusion simply been that the Director had failed to discharge the onus of proof in respect to these other discrete matters such as the exchange at the Praga Café, the acceptance of the Director's evidence as to these two conversations may have provided greater reason to re-visit the earlier conclusions as to onus of proof. Even then, however, it is doubted whether any different factual finding would have been made. 123 It is concluded that the Director has failed to discharge the onus of proof in respect to the words sought to be attributed to Mr Smith on 11 June 2014. In so concluding primary reliance has been placed upon: the fact that Mr Horsham failed to give any evidence corroborative of the account given by Mr Ault. Reliance has also been placed upon: the account given by Mr Smith; and the evidence of Messrs Miller, Lomax, Hamilton and Vitler. The account given by Mr Smith, it has been concluded, should be accepted. And this is so notwithstanding, for example, Mr Smith's apparent reluctance to accept what was an "inconsistency" between his not having any knowledge "about the EBA" and his statement that it had "dragged on for 12 months". Evidence of some witnesses from time to time occasions concern by reason of reservations as to its reliability, its inconsistency with the evidence of other witnesses and even by reason of internal inconsistency. Such is inevitably part of the process of the evaluation of evidence and the making of findings of fact. In the present case, and subject to s 361 of the Fair Work Act, it is the Director who bears the onus of proof in establishing that his account of the facts should be accepted. And in this respect he has not discharged that onus. 124 Also occurring on 11 June 2014 was the account given by Mr Horsham as to Mr Miller saying that "nobody is allowed on this Site today … because Built doesn't have an EBA". Although Senior Counsel on behalf of the CFMEU sought to characterise the accounts given by Mr Horsham and Mr Ault as involving a "fundamental inconsistency", no such inconsistency is found. Both Mr Horsham and Mr Ault were common in respect to Mr Miller having said to them that Built "doesn't have an EBA". Whatever other differences in the accounts may be discerned, so much is common. Also rejected is any difference in the two accounts given by reason of who "put himself at the centre of the conversation". The submission that an inconsistency arises as to who was the protagonist in the conversation, be it Mr Horsham or Mr Ault, is rejected. But there is one difference of potential significance - on Mr Ault's account, there was an exchange concerning bringing a dogman to the Project Site; Mr Horsham gave no such account. 125 There are three reasons for again concluding that the Director has failed to discharge the onus of proof in respect to the conversation sought to be attributed to Mr Miller on 13 June 2014. The first reason, and the primary reason, is: the inconsistency in the account given by Mr Nikolic and Mr Stafford. Given that it is necessary to choose between these two accounts, the account given by Mr Stafford is preferred. He is more independent than Mr Nikolic (or Mr Horsham) and he was the person present on site "just as a witness". On his account, Mr Miller said "just sort your problems out with the union". A secondary reason, albeit a reason upon which only limited reliance - but some reliance - has been placed, is: the fact that the evidence of Messrs Smith, Hamilton and Lomax tend to support Mr Miller's account. A final reason, albeit again a reason upon which only limited reliance has been placed is: the failure of the Director to cross-examine Messrs Smith, Hamilton and Lomax (although this was most probably due to a desire to avoid unnecessary repetition of the same format of cross-examination as against each individual respondent). The Director has failed to prove that Mr Miller said "just sort this out, sign the EBA" rather than "sort out your problems with the union". 126 The acceptance of Mr Hall's evidence as to the purpose he set out to pursue on 11, 12 and 13 June 2014 provides a further reason for concluding that the Director has failed to discharge the onus of proof in respect to these two conversations. The Director's account of these two conversations on 11 and 13 June 2014 undoubtedly sits comfortably with his case as pleaded; but this account does not sit comfortably with the acceptance of Mr Hall's evidence as to purpose and the evidence in its entirety.

[33]

An intent to coerce 127 Part of the case for the Director rested upon there being an "intent to coerce" Built into either: signing an Enterprise Agreement; or employing a particular person. The Amended Statement of Claim alleges that Mr Hall (at paras [67] and [70]), Mr Miller (at paras [68] and [70]), Mr Smith (at paras [69]) and Mr O'Mara (at para [71]) had an "intent to coerce". 128 Thereafter the Director sought to rely upon s 361 of the Fair Work Act and to cast upon these individual Respondents the onus of proving that their actions were not taken for a prohibited reason. 129 Each of these Respondents in their affidavits denied having the intent as pleaded. 130 Mr Hall's affidavit, for example, stated as follows: [75] I also deny that my participation in the events at the Hawdon Place Gate on 11 June 2014 and at the Rosevear Place Gate on 12 and 13 June 2014: (a) was in any way motivated by the reason or reasons including the reason that Built had not signed or did not propose to sign an enterprise agreement with the union; (b) was done with intent to coerce Built to sign an enterprise agreement with the union; or (c) was done with intent to coerce Built to employ a particular person or allocate particular duties or responsibilities to a particular person. That evidence is accepted. 131 Mr Miller in his affidavit maintained that all he was told was that "there were asbestos issues on the property". He also denied any wrongful purpose in his participation in the events on 11, 12 and 13 June 2014 as follows: [9] It was no part of my reasons for being at the Gate that the union and Built were bargaining for an enterprise agreement and that I was trying to coerce Built to enter into an agreement. … [30] I also deny that my participation in the events at the Hawdon Place Gate on 11 June 2014 and at the Rosevear Place Gate on 12 and 13 June 2014: (a) was in any way motivated by the reason or reasons including the reason that Built had not signed or did not propose to sign an enterprise agreement with the union; or (b) was done with intent to coerce Built to sign an enterprise agreement with the union. [31] I had no knowledge that either Dean Hall or Zachary Smith, or any of the other Branch Officials who attended at the gate on those days, were acting as they did because Built had not signed or did not propose to sign an enterprise agreement with the union, or with the intent to coerce Built to sign an enterprise agreement. That evidence is accepted. 132 Mr Smith gave like evidence in his affidavit (at paras [46] and [47]). Mr Smith's evidence is also accepted. 133 Mr O'Mara gave like evidence in his affidavit (at para [34]). His evidence is also accepted. 134 In each case, and when considering whether each of these Respondents had discharged their onus of proof, consideration has been given to: the benefits that s 361 of the Fair Work Act confer upon the Director and, in particular, the object and purpose sought to be achieved by "reversing" the onus of proof. Consideration has also been given to: the evidence in its entirety; such evidence as was led against each Respondent by the Director; the fact that varying accounts were given by different witnesses as to what was alleged to have been said and the manner in which those variations have been resolved; and the evidence of the individual Respondents, including the limited extent to which the Director sought to expressly challenge the denials made by each Respondent. Notwithstanding the extent of cross-examination directed expressly to the denials, it must also be recognised that the cross-examination of each Respondent was such that no submission could prevail that the Director was not putting each Respondent on notice that their individual accounts was being questioned and impugned: cf. Jones v Dunkel (1959) 101 CLR 298. On the balance of probabilities, it is concluded that each of the denials of an intent to coerce has been made out by each of Messrs Hall, Miller, Smith and O'Mara.

[34]

THE CASE AS PLEADED 135 The Amended Statement of Claim separately addresses (inter alia) the events as they unfolded on 11, 12 and 13 June 2014. 136 It is alleged that the "Blockade" of the Project site commenced on 11 June with the closure of the Hawdon Place Gate and continued on 12 and 13 June 2014 with the continued closure of that gate and the closure of the Rosevear Place Gate. It is alleged that the "Blockade" was a "continuous blockade". 137 In respect to the blockade of the Project Site on 11 June 2014, the Amended Statement of Claim thus pleads in part as follows: Wednesday 11 June 2014 28. On or about 11 June 2014, Hall, O'Mara, Smith and Miller caused a blockade (the 11 June 2014 Blockade) to be organised that, as each of them knew and intended: (a) would be conducted at the KHSD Project, at the Hawdon Place Gate; (b) would commence at about 6.15am on 11 June 2014, and would continue thereafter until it concluded; (c) would be attended by a number of CFMEU officials and employees, including Hall, O'Mara, Miller, Kivalu, Smith, Hamilton, Lomax and Vitler; and (d) would close the KHSD Project, and thereby prevent any building works from being conducted. Particulars (i) At or about 6.15am, each of Hall, O'Mara, Kivalu, Smith, Lomax and Vitler, along with other persons wearing clothing emblazoned with the "CFMEU" insignia, were physically blocking access to the KHSD Project through the Hawdon Place Gate. (ii) In addition, the persons present had caused four (4) motor vehicles to be placed across the Hawdon Place Gate, so as to prevent access to the KHSD Project. (iii) At about 6.15am, Miller said to Mr Norman Ault (Ault) (Site Foreman-Built) that the KHSD Project was closed and that no work would be performed on 11 June 2014. (iv) On several occasions between 6.30am and 7.00am, Kivalu stated to Built sub-contractors, both by phone and in person, that the KHSD Project was closed, and there would be no work performed on 11 June 2014. Reference is then made in the pleadings as to the meeting at the Praga Café as follows (without alteration): 33. During the Praga Café Meeting: (a) Hall made the following demands to Moore: (i) That Built sign the Proposed Enterprise Agreement. (ii) In the alternative, Built vary its NSW enterprise agreement to cover building work in the ACT. (iii) In the alternative, Built vary its Victorian enterprise agreement to cover building work in the ACT. (iv) That Built employ a full-time labourer, nominated by the CFMEU, as a safety officer or the KHSD Project. (b) O'Mara sat next to Hall, and did or said nothing to disassociate himself from any of Hall's conduct as set out in paragraph 33(a). Particulars During the course of the Praga Café Meeting, Hall, in the presence of O'Mara, said words to the following effect to Moore and Tonkovic: (i) "I have a solution for you" (ii) "You can vary the NSW EBA agreement to include the ACT or sign the existing agreement" (iii) "Vary the Victorian Agreement" (iv) "The site needs an attendant labourer with the appropriate skills to identify unsafe work" (v) "We have a guy that you can take for four weeks" (vi) "He can sort out your safety issues on site" 138 With reference to the closure of the Rosevear Place Gate on 12 June 2014, the Amended Statement of Claim pleads in part as follows (without alteration): Thursday 12 June 2014 42. On or about 12 June 2014, Hall, O'Mara, Smith and Miller caused a blockade (the 12 June 2014 Blockade) to be organised that, as each of them knew and intended: (a) would be conducted at the KHSD Project, at the Rosevear Place Gate; (b) would commence at about 6.30 am on 12 June 2014, and would continue thereafter until it concluded; (c) was intended to be a continuation of the 11 June 2014 Blockade; (d) would be attended by a number of CFMEU officials and employees, including Miller, Kivalu, Smith, Lomax and Vitler; and (e) would close the KHSD Project, and thereby prevent any building works from being conducted. Particulars (i) At about 6.30am, each of Miller, Kivalu, Smith, Lomax and Vitler, along with other persons wearing clothing emblazoned with the "CFMEU" insignia, were physically blocking access to the KHSD Project. (ii) In addition, the persons present had caused two (2) motor vehicles to be placed across the Rosevear Place Gate, so as to prevent access to the KHSD Project. (iii) At about 6.35am, Ault approached the Rosevear Place Gate and asked the persons present whether they intended to block the site that day. Miller said words to the effect of: "Yes! And why is Built using this access to site?" Ault replied that the CFMEU had locked access to the Hawdon Place Gate. (iv) Between 6.30am and 7.00am, Built sub-contractors began to arrive at the KHSD Project, and were told by various CFMEU officials that there "is no work today" and that "the site is closed". (v) Throughout the day, various CFMEU officials made statements to the effect that "the site is closed until further notice". (emphasis in original) 139 Much the same allegation is made as follows in respect to the events as they continued on 13 June 2014: 13 June 2014 49. On or about 13 June 2014, Hall, O'Mara, Smith and Miller caused a blockade (the 13 June 2014 Blockade) to be organised that, as each of them knew and intended: (a) would be conducted at the KHSD Project, at the Rosevear Place Gate; (b) would commence at about 5.45am on 13 June 2014, and would continue thereafter until it concluded; (c) was intended to be a continuation of the 11 June 2014 Blockade and 12 June 2014 Blockade; (d) would be attended by a number of CFMEU officials and employees, including Miller, Kivalu, Smith, Lomax, Vitler and Hamilton; and (e) would close the KHSD Project, and thereby prevent any building works from being conducted. Particulars (i) At or about 5.45am, each of Miller, Kivalu, Smith, Lomax and Vitler, along with other persons wearing clothing emblazoned with the "CFMEU" insignia, were physically blocking access to the KHSD Project through the Rosevear Place Gate. (ii) Hamilton arrived at the Rosevear Place Gate sometime prior to 7.00am. (iii) At about 7.00am, Ault, Tonkovic, Paul Stafford (FWBC Inspector), Clint Walker (FWBC Inspector) and John Nikolic (Master Builders Association of the ACT) approached the Rosevear Place Gate and sought entry to the KHSD Project, along with sub-contractors who were present for work. (iv) In response: A. Hamilton made a statement to the effect of: "the site is closed" (the Hamilton Representation); and B. Kivalu made a statement to sub-contractors to the effect of: "everyone should go home, you will be paid for today, we will make sure you get paid" (the Second Kivalu Representation). (v) Stafford, Walker, Nikolic, Ault and Tonkovic were permitted to enter the KHSD Project. (vi) The CFMEU officials who were present, including Miller, Kivalu, Smith, Lomax and Vitler and Hamilton physically blocked the sub-contractors from accessing the KHSD Project by standing shoulder to shoulder at the Rosevear Place Gate. 140 The events on the three days are brought together as follows in para [60] of the Amended Statement of Claim: 60. By reason of the matters pleaded in paragraphs 28, 42 and 49, each of the 11 June Blockade, 12 June Blockade and 13 June Blockade were organised as, and intended to operate with the effect of, a continuous blockade of the KHSD Project (the Blockade). 141 Although a series of contraventions of the Fair Work Act are alleged against each of the Respondents, a central theme to the allegations being made is that the "Blockade" was imposed - not for the purpose of addressing "safety issues" arising from asbestos on the Hadwon Land or from a concern as to increased traffic along Rosevear Place - but rather by reason of a desire to exert pressure upon Built to: sign an enterprise agreement (or, alternatively, to vary an existing New South Wales or Victorian Agreement to cover work in the Australian Capital Territory). Another purpose sought to be achieved, so contended the Director, was to exert pressure on Built to: employ a full-time labourer, nominated by the CFMEU, as a safety officer for the Kim Harvey School of Dance Project. 142 It is against this general background that each of the more specific allegations made against each of the Respondents is to be resolved.

[35]

The pleaded contraventions of s 340 143 Contraventions of s 340 of the Fair Work Act are alleged as against the individual Respondents Messrs Hall, Miller and Smith. 144 By way of example, the pleading as against Mr Hall is as follows: 61. By reason of the Blockade, Hall took adverse action against Built within the meaning of item 7, subparagraph (c) of s. 342(1) of the FW Act. 62. Hall took the adverse action because Built: (a) had not signed the Proposed Enterprise Agreement, within the meaning of s. 340(1)(a)(ii) of the FW Act; and/or (b) proposed not to sign the Proposed Enterprise Agreement, within the meaning of s. 340(1)(a)(iii) of the FW Act. For the purposes of para [61], the reference to "the Blockade" is a reference to "the Blockade" as defined in para [60] of the Amended Statement of Claim. If reference is intended to a particular day, the draftsman of the Amended Statement of Claim specifies (for example) "the 11 June 2014 Blockade". The like pleaded allegations as made against Mr Miller in respect to the "Blockade" are to be found at paras [63] to [64] of the Amended Statement of Claim; those made against Mr Smith are to be found at paras [65] to [66]. The allegation made against each of these two Respondents is that they "took adverse action against Built" for the same stated purposes as sought to be attributed to Mr Hall. 145 Section 340 provides as follows: 340 Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. Section 341 gives content to the phrase "workplace right" and provides in relevant part as follows: Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment. Meaning of process or proceedings under a workplace law or workplace instrument (2) Each of the following is a process or proceedings under a workplace law or workplace instrument: … (e) making, varying or terminating an enterprise agreement; … 146 Section 342 sets out the "meaning of adverse action" relevantly as follows: 342 Meaning of adverse action (1) The following table sets out circumstances in which a person takes adverse action against another person. Meaning of adverse action Item Column 1 Column 2 Adverse action is taken by ... if ... ... ... ... 7 an industrial association, or an officer or member of an industrial association, against a person the industrial association, or the officer or member of the industrial association: (a) organises or takes industrial action against the person; or (b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person's employment or prospective employment; or (c) if the person is an independent contractor - takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or (d) if the person is a member of the association - imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).

[36]

In the present proceeding, reliance is placed by the Director upon Item 7(c). 147 The case for the CFMEU had a number of strands to it, including the propositions that: the closure of the Hawdon Place Gate was not the taking of "industrial action" but rather resulted from the conduct of the owner of the land over which the right of access was granted, namely the Canberra Tradies' Club; and, even if the closure of those gates was to be construed as the taking of "industrial action", then: to fall within Item 7(c) it was necessary to prove that any "prejudice" to Built was real and substantial rather than possible or hypothetical: cf. Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267 at [18], (2001) 107 FCR 93 at 100 per Black CJ, Ryan and Merkel JJ. A refinement of this submission turned on the absence of prejudice by reason of a contractual entitlement on the part of Built to seek a variation of the access agreement by reason of (inter alia) "a dispute with a nearby owner or occupier" and "delay in relation to dangerous or contaminated material". It is ultimately unnecessary to reach any concluded view in respect to these arguments - but some tentative views are nevertheless expressed. 148 As to the former of these propositions, it is considered that there are a number of difficulties in the path of the CFMEU including the fact that as at 11 June 2014: the right of access granted on 7 February 2014 had not been withdrawn; and the withdrawal of any right of access was not communicated to Built. The fact that the police may have been called to the Project Site on 11 June 2014 and that they left on the basis that access had been withdrawn by the owner says very little as to why the Hawdon Place Gate was closed. Nor does the fact that a new right of access was granted on 27 June 2014. 149 Although Mr Hall was a director of the Canberra Tradies' Club and may well have given consideration to the exposure of the Club to the cost of possible remediation of the Project Site, it is concluded that the action taken in closing the Hawdon Place Gate was most probably properly characterised by the Director as "industrial action" for the purposes of Item 7(c) of s 342(1). 150 As to the latter of the propositions, neither the reliance sought to be placed by the CFMEU upon Telstra Corporation, nor the principle sought to be extracted by the CFMEU, was put in question by the Director. It was the application of that principle which divided the parties. Telstra Corporation was a case in which one of the issues to be resolved was whether an email forwarded by the managing director to managers and team leaders during the course of a downsizing of Telstra's operations constituted a threat of prohibited conduct for the purposes of s 298K(1) of the former Workplace Relations Act 1996 (Cth) (the "Workplace Relations Act"). That sub-section provided as follows: An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person. When discussing the former s 298K(1)(c), Black CJ, Ryan and Merkell JJ observed in Telstra Corporation (at 100): [17] The question is whether, by sending the e-mail to its recipients, Telstra had altered the position of any of its employees to the employee's prejudice within the meaning of s 298K(1)(c). In [Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 18] the majority of the High Court held that the sub-section covers "not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question". The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies' businesses being "extremely tenuous" with the "security of the employees' employment [being] consequentially altered to their prejudice". The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(1)(c) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation. [18] Where the alteration of position is alleged to be indirect or consequential, as in Patrick Stevedores and in the present case, a difficult question may arise as to whether a prejudicial alteration of position has in fact occurred. Answering that question may involve questions of degree. It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(1)(c). Similarly, in Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63, (2012) 202 FCR 244 at 250 Gray, North and Besanko JJ referred (inter alia) to Telstra Corporation and continued: [31] Australasian Meat Industry Employees Union v Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165 is an example of a prejudicial alteration which occurred even though the employees in question suffered no loss or infringement of a legal right. The employees were meat workers whose employment was terminated when their employer's premises were destroyed by fire. The employer told them they would be re-employed when the operation resumed. However, the employer subsequently decided not to resume that operation and not to re-employ those employees. The employees had no legal right to re-employment. The statutory provision prohibiting prejudicial alteration applied to them and it was held that the disappointment of their expectation was an alteration of their position to their prejudice. [32] The authorities thus establish that a prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alteration in the employee's position is real and substantial rather than merely possible or hypothetical. 151 The principle sought to be relied upon by the CFMEU was the need to establish a "real and substantial" alteration of position rather than one which is "merely possible or hypothetical". 152 Part of the way in which the CFMEU seeks to resist any conclusion that the Director had established that the closure of the Hawdon Place Gate occasioned any "real and substantial" prejudice to Built was that any "prejudice" was "merely possible or hypothetical". In advancing this submission, the CFMEU placed reliance upon the absence of any evidence as to either: the financial implications for Built and the absence of any evidence as to whether the closure of the Gate "cost the company any money"; or any overall delay to construction being caused by the closure of the Gate. Although it is ultimately unnecessary to resolve these particular submissions, it may presently be doubted whether the "prejudice" to which Item 7(c) refers is to be so narrowly construed. Conversely, however, "prejudice" may potentially be demonstrated if it were possible to show (for example) that on 11 June 2014 vehicle access was sought and denied. But in the absence of any such evidence as to a vehicle seeking access via the Hawdon Place Gate and being denied access on that date, it is concluded that the closure of the Hawdon Place Gate did not occasion any "prejudice" to Built. Any "prejudice", on the facts, remained "merely possible or hypothetical". "Prejudice" for the purposes of considering the closure of that Gate on 11 June 2014 must be judged by reference to the facts as they unfolded on that day rather than on 12 or 13 June 2014. Although there was evidence of a Franna crane gaining access to the Project Site on 11 June 2014, including the exchanges that occurred on 11 June 2014 between Messrs Ault and Miller, the fact remains that on 11 June 2014 the crane did gain access at about 12.45pm. Such was the evidence of Mr Horsham. 153 The reason why it has been concluded that it is ultimately not necessary to resolve these arguments is that, even if the Director had made out a case of "adverse action" having been taken which fell within Item 7(c) of s 342(1), a contravention of s 340 necessarily involves a finding that conduct falls within s 340(1)(a) or (b). A contravention of s 340(1) is made out if "a substantial and operative" reason for action is prohibited: cf. Board of Bendigo Regional Institute of Technical and Further Education [2012] HCA 32, (2012) 248 CLR 500 at 535. Gummow and Hayne JJ there concluded in respect to s 346 of the Fair Work Act: [104] … An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342. See also: Kennewell v MG & CG Atkins [2015] FCA 716 at [51] per Tracey J; Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236 at [8] per Flick J. 154 In respect to Mr Hall it has been concluded that he has discharged the onus of proof imposed upon him by s 361 that the action he took was not for a prohibited reason. It has already been found that: the closure of the Hawdon Place Gate on 11 June 2014 was occasioned by Mr Hall's concerns as to safety arising from the need to resolve any dangers presented by asbestos; and the purpose sought to be achieved in the subsequent closure of the Rosevear Place Gate was founded upon concerns as to safety occasioned by the prospect of increased traffic flows, including heavy vehicles. In particular, Mr Hall's denial in para [75] of his affidavit has been accepted. 155 The case as pleaded against Mr Hall at paras [61] and [62] of the Amended Statement of Claim thus fails. 156 So too does the Director's case pleaded against Mr Miller (at paras [63] and [64]) and Mr Smith (at paras [65] and [66]). Again proceeding on the assumption that the Director has made out the allegation that the "Blockade" occasioned "prejudice" as required by Item 7 of s 342(1) of the Fair Work Act, the pleaded case against Messrs Miller and Smith fails because the Director has failed to establish that either took action that otherwise falls within s 340(1). 157 Section 340(1)(a), for example, prohibits the taking of action against another person "because" that other person has a "workplace right". In the case of Mr Miller, evidence was given by (for example) Mr Horsham that Mr Miller was alleged to have said that "nobody is allowed on this site today … because Built doesn't have an EBA". Mr Horsham also attributes to Mr Smith the words that "[t]his is an EBA issue". This evidence forms part of the evidence that has been characterised as "truly worrying". This evidence forms part of the Director's case in respect to the alleged contraventions of s 340 and also ss 343 and 355. This "truly worrying" aspect of the evidence has necessarily to be revisited in the context of the resolution of the ss 343 and 355 contraventions. For present purposes, it is sufficient to note that (albeit with considerable reservation) acceptance of the Director's evidence has ultimately not prevailed.

[37]

The pleaded contraventions of ss 343 & 355 158 The contraventions of ss 343 and 355 can be dealt with together. 159 Contraventions of s 343 of the Fair Work Act are again alleged against Messrs Hall, Miller and Smith. 160 By way of example, the pleading as against Mr Hall is as follows: 67. Further, and in the alternative to paragraphs 61 and 62, Hall: (a) organised the Blockade, with the intent to coerce, or for the reason of coercing, Built to sign the Proposed Enterprise Agreement, within the meaning of s. 343 of the FW Act; and/or (b) participated in the Blockade, with the intent to coerce, or for the reason of coercing, Built to sign the Proposed Enterprise Agreement, within the meaning of s. 343 of the FW Act. (the Hall s. 343 Contraventions). Particulars The Director relies, amongst other facts, on the following: (i) the facts pleaded in paragraphs 24-26, with respect to Hall's knowledge of the Proposed Enterprise Agreement; (ii) the facts pleaded in paragraphs 28, 42, 45 and 49, with respect to Hall's organisation of the Blockade; and (iii) the facts pleaded in paragraphs 28, 29, 32, 33, 35, 36, 42, 45, 49 and 56, with respect to Hall's conduct in respect of the Blockade. 161 The corresponding allegation pleaded against Mr Miller is to be found at para [68] of the Amended Statement of Claim; that made against Mr Smith is to be found at para [69]. The allegation made, at least as set forth in these paragraphs and as made in para [67], is that each of these Respondents "organised" and/or "participated" in the "Blockade" with a like "intent". 162 Contraventions of s 355 of the Fair Work Act are also alleged against Messrs Hall and O'Mara. 163 The pleading as against Mr Hall is as follows: 70. Further, by reason of the matters pleaded in paragraphs 29, 32, 33, 34, 36, 42, 49 and 56, the Blockade was organised by Hall, and Hall participated in the Blockade, with the intent to coerce, or for the reason of coercing, Built to: (a) employ a particular person, within the meaning of s. 355 of the FW Act; and/or (b) allocate particular duties or responsibilities to a particular person, within the meaning of s. 355 of the FW Act. The corresponding allegation pleaded against Mr O'Mara is to be found at para [71] of the Amended Statement of Claim. The allegation made against Mr O'Mara is that he "organised" and "participated" in the "Blockade" with the same "intent".

[38]

Organising and/or participating 164 The form of pleading in respect to the alleged contraventions of both s 343 and s 355 was that a particular respondent "organised … and/or … participated" in the "Blockade". That, for example, is the form of pleading against Mr Hall at para [67] of the Amended Statement of Claim. 165 Both ss 343 and 355 are expressed in terms of a prohibition that a person "must not organise or take … action" against another person. 166 Notwithstanding the alternative manner in which ss 343 and 355 are expressed, and notwithstanding the form of pleading, there was an absence of any detailed submission in respect to either: whether participation in the "Blockade" was to be equated with the prohibition against a person "taking" action against another; and whether the facts, if they fell short of a particular respondent having "organised" the "Blockade", could nevertheless give rise to a finding that the person "participated" in that event and had thereby "taken" action and contravened ss 343 and/or 355. The focus of the attention of the submissions was very much confined to whether a respondent "organised" the "Blockade". The written submissions advanced by the Director were somewhat unhelpful in maintaining (for example) that it was "enough that Miller participated in the blockade, and the organisation of the blockade, with the intent to coerce". Elsewhere it is (with respect) equally Delphically submitted that "knowledge and participation in the blockade and the discussions that brought the blockade about, caused the blockade to be organised". 167 The apparent explanation for the manner in which the Amended Statement of Claim is drafted is to be found in the Particulars to paras [67], [68] and [69], which refer to the involvement of these Respondents in causing the "Blockade" "to be organised". Paragraph [28], being one of the paragraphs referred to in the Particulars to paras [67], [68] and [69] (for example), provides in part as follows: On or about 11 June 2014, Hall, O'Mara, Smith and Miller caused a blockade (the 11 June 2014 Blockade) to be organised that, as each of them knew and intended: (a) would be conducted at the KHSD Project, at the Hawdon Place Gate; (b) would commence at about 6.15am on 11 June 2014, and would continue thereafter until it concluded; (c) would be attended by a number of CFMEU officials and employees, including Hall, O'Mara, Miller, Kivalu, Smith, Hamilton, Lomax and Vitler; and (d) would close the KHSD Project, and thereby prevent any building works from being conducted. (emphasis in original) Paragraphs [42] and [49] are, by way of further example, also expressed in comparable terms. The case for the CFMEU was that the Court "should decide this case on the basis of the contraventions alleged in the pleadings", the submission presumably being that the pleadings confined the contraventions to those occasioned by an alleged "organisation" of the "Blockade". 168 In the absence of detailed submissions to the contrary, the course that has been taken is to confine findings of fact to whether ss 343 and/or 355 have been contravened by reason of whether a person "organised" action with the requisite intent. It has, in any event, proved unnecessary to consider any question as to the proper construction of ss 343 and 355 and whether "participation" in an event is to be equated with "taking" action. 169 Although Messrs Miller and Smith were in attendance at the "Blockade", no conclusion is reached that either "organised" the action taken as pleaded in the Amended Statement of Claim. That conclusion in respect to Mr Miller is expressed with far greater reservation than is the conclusion in respect to Mr Smith. Although it was submitted that Mr Miller was not an "organiser", it is not to be forgotten that in his cross-examination he did accept that he was "just there as one of the organisers". But such a statement, it has ultimately been concluded, is not sufficient to found a conclusion that Mr Miller organised those events for the purposes of s 343 of the Fair Work Act. It is ultimately concluded that Mr Miller was present, not because he was one of the organisers, but because he had been instructed to be present. The conclusion that neither "organised" the action taken is consistent with their limited state of knowledge as to what was happening on site and their limited state of knowledge as to why they had been asked to attend on site. It is also concluded that neither Mr Miller nor Mr Smith took action for any prohibited reason. The purpose being pursued by Messrs Miller and Smith was that pursued by Mr Hall. 170 Even if "participation" were to fall within ss 343 and/or 355, the question remained as to the "intent" with which each Respondent so "participated".

[39]

An intent to coerce - the elements required to be proved 171 Sections 343 and 355 are two of four provisions in the Fair Work Act directed at proscribing action against another person with "intent to coerce". The other provisions are ss 348 and 362. Section 343 provides as follows: 343 Coercion (1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or (b) exercise, or propose to exercise, a workplace right in a particular way. (2) Subsection (1) does not apply to protected industrial action. 172 As to the requirement that action must not be taken "with intent to coerce", two elements must be established to prove an "intent to coerce": Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 at [41], (2001) 109 FCR 378 at 388. That case concerned threats by the union to take industrial action that would interfere with the televising of football matches and the Olympic Games in August and September 2000, in contravention of s 170NC(1) of the Workplace Relations Act. Section 170NC(1) provided as follows: A person must not: (a) take or threaten to take any industrial action or other action; or (b) refrain or threaten to refrain from taking any action; with intent to coerce another person to agree, nor not to agree, to: (c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or (d) approving any of the things mentioned in para (c). Justice Merkel reviewed the authorities with respect to an intention to coerce and summarised the position as follows (at 348): [41] The above cases establish that there must be two elements to prove "intent to coerce" under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Second, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable. The requirement that the pressure exerted be unlawful, illegitimate or unconscionable must be considered in the context of the scheme of the Act and of the fact that, subject to the immunity in respect of protected industrial action under s 170MT of the Act, many forms of industrial action are unlawful: see Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637. This passage was endorsed by Buchanan and Griffiths JJ in Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160 at [70] to [72], (2013) 218 FCR 172 at 187. There under consideration was s 343 of the Fair Work Act. Buchanan and Griffiths JJ held that the presumption imposed by s 361 applied: [2013] FCAFC 160 at [54]. 173 Proof of an "intent to coerce" thus requires an intent to negate choice - a high degree of compulsion is required: National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441, (2002) 117 FCR 114. In the context of considering s 170NC of the Workplace Relations Act, Weinberg J there reviewed the authorities and concluded (at 143): [103] The approach to the expression "intent to coerce" taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least 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. 174 But it is not necessary to establish that a person intended to act unlawfully, the determination of whether the action engaged in was unlawful is to be determined objectively: Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72, (2016) 258 IR 396. Buchanan J (with whom Siopis J agreed) observed (at 443 and 446): [176] In my view, it should not be accepted that it is necessary to establish that a person intended to act unlawfully etc. Nor would it be a defence to show that a person believed their action would be, or was, lawful. … [194] … The requirement of intent applies to the purpose of negating choice. The additional element that the means employed be unlawful, etc. involves an objective test. That approach is consistent with the common law origins of the notion of coercion which can be traced back to the tort of economic duress, as explained in the cases to which I referred earlier. In that common law context, the notion of purpose, or intent, applies to the first element but not the second. There is no reason to think that the statutory adoption of the common law concept has altered its nature. … A little later, his Honour further observed (at 448): [200] … an examination of intent is relevant to the first element of coercion, and an examination of objective circumstances is relevant to the second element. 175 Similarly, in Seven Network [2001] FCA 456, (2001) 109 FCR 378 at 387 Merkel J referred to Giorgianni v The Queen (1984) 156 CLR 473 at 504 to 507 and continued on to observe: [35] Similarly, the intent required for the purposes of s 170NC relates to actual knowledge of the circumstances that made the conduct in question coercive conduct. For the reasons stated in Giorgianni, if the person in question had such knowledge, that person will not escape liability by establishing that he or she believed that the conduct was lawful … 176 A person engages in conduct intended to coerce a person even if the conduct has one of several other purposes or objectives: Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 at [45], (2000) 100 FCR 530 at 541 per Ryan, Moore and Goldberg JJ. Section 360 of the Fair Work Act only reinforces this conclusion. 177 Section 355 provides as follows: 355 Coercion - allocation of duties etc. to particular person A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) employ, or not employ, a particular person; or (b) engage, or not engage, a particular independent contractor; or (c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or (d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities. 178 The requirement imposed by s 355 that the action be taken "with intent to coerce" is to be construed in the same manner for ss 343 and 348: cf. Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 at [303] to [304], (2014) 243 IR 312 at 354 per Siopis J. 179 Section 355, it should also be noted, makes a distinction between taking action and organising action: Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1125 at [126], (2015) 254 IR 200 at 233 to 234 per Jessup J. The "core policy objective" of s 355 is to ensure a person is not required, under threat of coercion, to employ a particular person: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 at [2] per Jessup J.

[40]

The absence of any intent to coerce 180 The allegations as to contraventions of ss 343 and/or 355 are rejected. 181 The principal reason for so concluding is that the purpose sought to be pursued in closing the Hawdon Place Gate and the Rosevear Place Gate was founded upon concerns as to safety: asbestos in the case of the Hawdon Place Gate and traffic in the case of the Rosevear Place Gate. 182 Moreover, it is further concluded that Mr Hall's denial of any "intent to coerce" as set forth in his affidavit at para [75] should be accepted. So, too, should Mr Hall's denial during his cross-examination that he sought "to put as much pressure as possible on Mr Moore" and his denial that he wanted Mr Moore to agree to his proposal to employ an attendant labourer. The absence of any finding of an "intent to coerce" is also consistent with and supported by - albeit separate from - the finding as to his purpose in effecting the "Blockade". 183 One factual plank relied upon by the Director in his written submissions to support a finding that Mr Hall had the requisite intent to coerce Built was the exchange at the Praga Café in which, on Mr Moore's account, Mr Hall said that the "site needs an attendant labourer" and that the union had "a guy that you can take on for four weeks". But that factual plank falls away with the finding that Mr Hall's account of the conversation at the Praga Café is to be preferred to that of Mr Moore. Even had a different factual finding been made as to whether this part of the conversation had taken place, it would also most probably have been found that such a statement on Mr Hall's part would fall well short of the "high degree of compulsion" required to make good a finding as to "intent to coerce": cf. National Tertiary Education Industry Union [2002] FCA 441 at [103]. The words ascribed by Mr Moore to Mr Hall, standing alone, would not rise to that level of compulsion; when considered against the backdrop of the conversation as given by Mr Hall, the level falls even further short. 184 The denial of any "intent to coerce" as set forth in the affidavits of Messrs Miller and Smith has also been accepted. It is concluded that neither Mr Hall, Mr Miller nor Mr Smith had any "intent to coerce" as pleaded against them. 185 But for that reason, some limited difficulty may have been encountered by the Director in making good (for example) its allegation that: Mr Hall either "organised" (at para [67(a)] of the Amended Statement of Claim) the action taken on 12 June 2014 in circumstances where he was not present on that day and there was a scarcity of other evidence that he had "organised" the action prior to 12 June. The Director may also have encountered some difficulty in making good the allegation that: Messrs Miller and Smith contravened s 343 by reason of their having "organised" the action that took place in circumstances where both Messrs Miller and Smith denied having "organised" those events. 186 In recognising the difficulties that may have been encountered by the Director in proving an allegation that Mr Hall "organised" the "continuation" of the "Blockade", it must also be necessarily recognised that such an allegation was not without considerable substance. Mr Hall in his affidavit, albeit in respect to a paragraph which was "not pressed", maintained that he "authorised the continuation of the blockade". But when cross-examined as to this paragraph, the following exchange occurred between Mr Hall and his cross-examiner: And in terms of what you continued to authorise by way of blockade, who did you authorise to blockade, and what did you actually authorise? - I'm not sure about the question. Well, you've said: So I authorised a continuation of the blockade. I'm sorry, I can't now remember who I spoke to. I'm asking whether you now have a recollection of who you spoke to? - No. But I would have sent the - sent the organisers to go down there. If you remember which particular organisers? - No. All of them, probably. Do you remember what you asked them to do? - Make sure there's no heavy vehicles go through that child-care car park. All right. And did you ask them to start a blockade outside the front of the Pinocchio child-care centre so that no heavy vehicles would go through the child-care centre car park? - No. I didn't. I wasn't so specific. I - actually, I can't recall. Well, if your genuine concern was heavy vehicles going through the child-care car park, then wouldn't it have made sense to exercise your blockade at the entrance of the car park. That would have made sense, wouldn't it? - That would have probably stopped the people dropping their kids off… It would have stopped them? - …and that wasn't the purpose. Given that evidence, it would most probably have been the case that a finding would have been made that Mr Hall "organised the Blockade" as alleged in para [67(a)] of the Amended Statement of Claim. But, even had such a finding been made, the finding which doomed the Director's case against Mr Hall to failure was the finding that he did not act with "any intent to coerce" as alleged. 187 The involvement of Mr Miller and Mr Smith in organising the "Blockade" was less certain. 188 In respect to Mr Miller, there can be no doubt that he "participated" in the "Blockade". It was in this context that the written submission advanced on behalf of the Director conflated the separate pleading as to whether Mr Miller "organised" and/or "participated" in the "Blockade". The submission was that although Mr Miller was "not the mastermind of the blockade and … did not personally decide that the blockade should be imposed", the evidence showed that "he played an instrumental role in organising and participating in the blockade". The ultimate submission was that his "knowledge and participation in the blockade and the discussions that brought the blockade about, caused the blockade to be organised". That is the manner in which para [68] of the Amended Statement of Claim has been construed, namely an allegation as to contravention by reason of Mr Miller having "organised" the "Blockade". Had it been necessary to do so, it would most probably have been concluded that Mr Miller's role in the "Blockade" fell short of a conclusion that he "organised" that event; his "knowledge" and "participation" would have fallen short of "organisation". 189 More difficult to resolve was the question as to Mr Miller's intent. In maintaining that Mr Miller clearly had the requisite intent, reliance was placed by the Director upon (for example) the account given by Mr Horsham as to Mr Miller saying: "[N]obody is allowed on this Site today … because Built doesn't have an EBA". 190 In respect to Mr Smith, there can equally be no doubt that he (like Mr Miller) "participated" in the "Blockade". In seeking to prove Mr Smith's requisite intent, reliance was again placed by the Director upon Mr Horsham's account of Mr Smith saying: "[T]his is an EBA issue". 191 The competing evidence in respect to what was said on 11 and 13 June 2014 has been regarded as "truly worrying". It is a concern which had also to be addressed when considering the Director's alleged contraventions of s 340(1) of the Fair Work Act. 192 But that worry has been resolved by the finding that the Director has failed to discharge the onus of proof in respect to the account given by (in particular) Mr Horsham. 193 The evidence of Mr Smith should also be separately addressed, especially in the context as to whether his denial of any requisite "intent" should be accepted. His evidence has also formed part of the exchanges which have been characterised as "truly worrying". On behalf of the Director it was submitted that Mr Smith's evidence was further open to criticism by reason of: his tendency to "embellish" his evidence; his evidence being contradicted by or inconsistent with the evidence of Mr O'Mara and Mr Kivalu; his evidence being "implausible"; and his evidence being "internally inconsistent". Such a litany of criticisms certainly occasions further reason to pause when assessing whether his denial of the requisite intent should be accepted. The example provided as to Mr Smith's evidence being "implausible" was his account as to who asked him to attend on Site on 11 June 2014 and his absence of knowledge as to why he was asked to attend, other than a reference to a generally expressed concern as to "safety". But this evidence of Mr Smith has been accepted. The example relied upon by the Director to establish "internal inconsistency" in Mr Smith's evidence is the inconsistency between Mr Smith's statement in his affidavit that he knew nothing "about the EBA" and his evidence that the negotiations had "dragged on for 12 months". With respect to this evidence, it has been concluded that the Director has failed to discharge the onus of proof in respect to the words sought to be ascribed to Mr Smith, being "[t]his is an EBA issue". That was a conclusion expressed by reference to the evidence of Mr Ault, Mr Smith and others and the fact that Mr Horsham did not give a like account to Mr Ault. But the present submission as to there being an "internal inconsistency" is to be assessed by reference to the evidence of Mr Smith alone. Mr Smith's reluctance to accept the "inconsistency" is a reason to question his evidence on this particular factual issue and a reason to question the reliability of the balance of his evidence. On balance, however, it is nevertheless concluded that each of the criticisms of Mr Smith's evidence do not lead to a conclusion that his evidence in respect to his denial of the requisite intent should not be accepted on the balance of probabilities. 194 Even if it were to be found that Mr Miller and Smith "participated" in the "Blockade" and thereby "took action" against Built or that either "organised" those events, the allegations as to contraventions of ss 343 and 355 fail either because: the Director has failed to prove the making of the statements upon which reliance is placed to make good the allegation as to "intent"; and/or both Mr Miller and Mr Smith have discharged the onus of proof imposed upon them by s 361 denying the requisite intent and the acceptance of their denials. 195 The allegation of a contravention of s 355 by Mr O'Mara (at para [71] of the Amended Statement of Claim) should be separately addressed. 196 Albeit unnecessary to resolve the allegation that Mr O'Mara "organised" the "Blockade", it would most probably have been concluded that: Mr O'Mara did not "organise … the Blockade" as alleged, although a finding would most probably have been made that he "participated" in the blockade on 11 June 2014; and/or Mr O'Mara's "participation" in the blockade on 12 June 2014 would be open to question given the fact that he was absent from Canberra between lunchtime on 11 June 2014 and did not return until about lunchtime on 13 June 2014. It is unnecessary to express any more than a tentative view because the conclusion has been reached that the pleaded contravention by Mr O'Mara fails because: no finding can be made that he had the requisite "intent to coerce" as alleged in para [71] of the Amended Statement of Claim. As with Messrs Hall, Miller and Smith, Mr O'Mara in his affidavit also denied having any "intent to coerce". In seeking to make good the allegation of an impermissible intent, the Director seeks to rely upon Mr O'Mara's: participation in the meeting at the Praga Café at which the Director submits "that issue is discussed"; together with: his "seniority within the CFMEU". It is submitted that Mr O'Mara had the "same intent as Hall". The submission made by the Director as to Mr O'Mara's contravention of s 355 is rejected because: Mr Hall's account of what was discussed, the order in which topics were discussed and the context in which that discussion took place has been accepted in preference to that given by Mr Moore. Other considerations also include: the fact that someone attended a meeting does not necessarily poison such a person with any intent that may have been held by another - a finding of intent being a finding that has to be necessarily made by reference to the words or conduct of the person involved; and the fact that mere "seniority" does not necessarily involve the consequence that "senior" persons all have the same intent. 197 Paragraphs [67] to [71] of the Amended Statement of Claim have not been made out.

[41]

The pleaded accessorial liability under s 550 198 Accessorial liability under s 550 of the Fair Work Act is again alleged as against the individual Respondents Messrs Miller, Smith, O'Mara, Kivalu, Hamilton, Lomax and Vitler. 199 Section 550 provides as follows: 550 Involvement in contravention treated in same way as actual contravention (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. As that section makes clear, a person can only be held to fall within the reach of the section if he has been "involved" in a "contravention of a civil remedy provision". 200 In very summary form, the Amended Statement of Claim alleges that: Mr Miller was "involved" in the contraventions by Mr Hall of ss 340 and/or 343 of the Fair Work Act (at paras [72] and [74]); Mr Smith was "involved" in the contraventions by Mr Hall of ss 340 and/or 343 (at paras [75] to [77]); Mr O'Mara was "involved" in the contraventions by Mr Hall of ss 340, 343 and/or 355 (at paras [78] and [80]); Mr Kivalu was "involved" in the contraventions by Mr Hall of ss 340 and/or 343 (at paras [81] and [83]); Mr Hamilton was "involved" in the contraventions by Mr Hall of ss 340 and/or 343 (at paras [84] to [86]); Mr Lomax was "involved" in the contraventions by Mr Hall of ss 340 and/or 343 (at paras [87] and [89]); and Mr Vitler was "involved" in the contraventions by Mr Hall of ss 340 and/or 343 (at paras [90] to [92]). 201 By way of example, the pleading against Mr Miller is as follows (without alteration): 72. Through his participation in the conduct or actions set out above, Miller: (a) participated in the 11 June 2014 Blockade; (b) was present when the Smith Representation was made; (c) did not disassociate himself from the Smith Representation; (d) made the First Miller Representation; (e) participated in the 12 June 2014 Blockade; (f) failed to leave the Pinocchio Childcare Centre when asked as set out at paragraphs 43 and 44 above; (g) was present when the First Kivalu Representation was made; (h) did not dissociate himself from the First Kivalu Representation; (i) participated in the 13 June 2014 Blockade; (j) was present when the Hamilton Representation was made; (k) did not disassociate himself from the Hamilton Representation; (l) was present when the Second Kivalu Representation was made; (m) did not disassociate himself from the Second Kivalu Representation; (n) made the Second Miller Representation; (o) was present during Kivalu's conduct as pleaded at paragraph 54 above; (p) did not disassociate himself from Kivalu's conduct as pleaded at paragraph 54 above; (q) was present during Hall's conduct as pleaded at paragraph 56 above. (r) did not disassociate himself from Hall's conduct as pleaded at paragraph 56 above; and/or (s) participated in the blockade. 73. By reason of the matters pleaded at paragraph 72 above, Miller knew of the facts surrounding the Blockade that gave rise to: (a) the Hall s.340 Contraventions; and/or (b) the Hall s.343 Contraventions. 74. Further and in the alternative to the Miller s.340 Contraventions and the Miller s.343 Contraventions, by reason of the matters pleaded at paragraphs 72 and 73 above, Miller was involved in contraventions of the FW Act pursuant to s.550 of that Act in that Miller: (a) aided and abetted: (i) the Hall s.340 Contraventions; and/or (ii) the Hall s.343 Contraventions; and/or (b) was directly or indirectly knowing concerned in or party to each of: (i) the Hall s.340 Contraventions; and/or (ii) the Hall s.343 Contraventions. The corresponding allegations pleaded against the remaining Respondents and their "accessorial liability" are to be found at paras [75] to [92] of the Amended Statement of Claim. 202 In the absence of any finding having been made as to a contravention of ss 340, 343 or 355 of the Fair Work Act by Mr Hall or other individual Respondents, no question arises as to accessorial liability on the part of any of the other individual Respondents. 203 Paragraphs [72] to [92] of the Amended Statement of Claim are thus rejected.