Onus of proof
137 The respondents submitted that it remains necessary for the Commissioner to establish that the officials had subjective knowledge of the particular facts and circumstances that would render the threatened action objectively unlawful, illegitimate or unconscionable. On the present state of the authorities, that submission is to be accepted. Whilst in Esso the High Court proceeded on the basis that the onus of proving any such knowledge would (subject to a series of assumptions) fall on the alleged contravener "as s 361 requires", that case did not involve a "threat" to take or organise action.
138 The issue is whether s 361 operates to reverse the onus of proof in a case where it is alleged that a person threatens to take action.
139 Section 361 relevantly provides:
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.
…
140 The respondents submit that, on its terms, s 361 applies to cases where action is in fact taken or in fact organised, and does not apply in cases where action or the organisation of action is merely threatened. There are divergent views expressed by single judges of this Court on that point.
141 The earliest judgment to which I was taken is Director of Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union (The Red & Blue Case) [2015] FCA 1125. Justice Jessup, in the context of considering s 355 of the FW Act and the phrase "threaten to organise or take", expressed the view that s 361 did not apply to a threat to take action. His Honour said:
111 In making findings as to Mr Edwards' intent on 14 June 2013, I have placed no reliance on s 361 of the FW Act. In the submissions made on behalf of the applicant, it was treated as self-evident that s 361 applied to so much of s 355 as dealt with the matter of intent. Although counsel for the respondents said nothing on the subject, I regard the position as unclear at best. Section 355 makes a distinction between organising and taking action, on the one hand, and threatening to do so, on the other hand. Section 361 applies only to the mental element involved in taking action. In terms, it does not apply to a threat to take action. Historically, the prohibitions now to be found in s 355 were located in s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) ('the BCII Act'). Their antecedents were not in Pt 16 of the Workplace Relations Act 1996 (Cth) ('the WR Act'), to which the reverse onus provision, then s 809, applied. No such provision applied to s 43 of the BCII Act. Section 361 now does apply to s 355, of course, but its extension beyond its actual terms, ie to threats, would be more than a mere continuation of a pre-existing legislative regime. It would be law reform of a kind which went unmentioned in the relevant Explanatory Memorandum. The result of applying s 361 as proposed by the applicant would, of course, be to expose a respondent to penal liability in a case in which the relevant applicant had not independently proved the facts relied on. Before taking such a step, and in the face of the plain language of s 361, I would require a more definite indication of legislative intention than the history of the legislation, and the parliamentary materials, disclose.
…
114 In relation to Mr Edwards' intent, I have found that his relevant wrongdoing under s 355 was by way of organising, rather than of directly taking, action. The question arises whether the reverse onus provisions of s 361 apply to conduct which amounts to organising someone else to take action but not to the taking of action as such. They do not do so in terms. What I have said about threats in para 111 above applies equally, mutatis mutandis, here. For reasons which I there expressed, I am not disposed to rely on s 361. But the applicant's case is a sufficiently obvious one, in my view, to sustain the inference, which I draw, that Mr Edwards' intent was to negate Red & Blue's choice in the matter of the employment of Mr Cannon. From the tenor of Mr Edwards' conversation with Mr Notarfransesco on 14 June 2013, Red & Blue would reasonably have supposed that the treatment it received at the hands of Mr Harris at the La Scala site was neither isolated nor referable to some local difficulty arising on that site as such. I find that, in organising that action, Mr Edwards intended to negate Red & Blue's choice, and thus to coerce it.
142 The views expressed by Jessup J as to the proper construction of s 361 of the FW Act are properly to be considered obiter: his Honour expressly disavowed reliance upon s 361 and decided the matter on a different basis.
143 The question was next considered by White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 (Lend Lease). Expressing a contrary view to that expressed by Jessup J, his Honour said:
101 The respondents submitted that, because s 361 referred only to the taking of 'action', it could have no application to a threat to take, or to organise to take, action in contravention of s 348.
102 In my opinion, this submission should not be accepted. The word 'action' is used in s 361(1) without qualification. This Court should not readily impose a limitation which the legislature itself has not imposed so as to exclude from the operation of s 361 actions which consist of threats.
103 Counsel submitted that the legislature may have intended to draw a distinction between action, on the one hand, and threats to take action, on the other because the purpose for which a threat is made will often be apparent in the terms of the threat itself, whereas that may not always be so in the case of actions. I doubt that this provides a sound basis for the distinction which the respondents sought to draw: it is commonly the case that the purpose for which a threat is made is not disclosed in the terms of the threat but is to be implied from a range of antecedent, or even subsequent, circumstances. Contrary to the respondents' submission, the Minister's statement in the Explanatory Memorandum for the introduction of the Fair Work Bill 2008 does not provide support for their submission. In relation to the then cl 361, the Minister said:
Clause 361 reverses the onus of proof applicable to civil proceedings for a contravention of Part 3-1. It is intended to broadly cover s 809 of the WR Act.
Section 809 was the counterpart provision in the Workplace Relations Act 2006 to s 361 in the FW Act. As is apparent, the Minister did not draw a distinction between the kinds of conduct to which s 361 may apply. Further still, s 809 of the former Workplace Relations Act 1996 (Cth) did not draw that distinction.
104 I observe that s 361 has been applied by this Court in relation to threatened action under s 348 in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 at [264]-[265] (Tracey J) and CFMEU (No 2) at [100] (Mansfield J). It seems however, that the point now raised by the respondents in this case was not raised in either of those cases.
144 It is common ground between the parties that the reasoning of White J in Lend Lease is obiter. I will proceed in accordance with that common position.
145 In the next decided case, Australian Building and Construction Commissioner v Parker [2017] FCA 564, Flick J said:
105 Some attention has been given to the circumstances in which s 361 operates. According to its terms, s 361 applies where it is alleged that 'a person took, or is taking, action for a particular reason or with a particular intent'. Some provisions of the Fair Work Act do not require proof of any particular reason or intent. Other provisions have an element of intent as but one of the elements which needs to be established in order to make out a contravention. Section 355 is an example. That section contains, as alternatives to the manner in which a contravention may occur, either a 'threat to … take … action' or the taking of action 'with intent' to coerce. In such circumstances, s 361 is confined in its operation to 'reversing the onus of proof' to the element of taking action with intent and does not apply to a threat to take action. Such was the view of Jessup J in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1125, (2015) 254 IR 200 at 231.
…
106 This approach taken to the construction of s 361 in respect to s 355 is, with respect, correct. Section 355 by its terms is expressed to cover a broader range of conduct than is the area of operation of s 361. Section 361 should be confined to the circumstances which its terms expressly cover.
107 Further, section 361 does 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.
146 The Commissioner acknowledges (correctly) that the above passage forms a necessary part of the ratio of the judgment in Parker. I am nonetheless urged by the Commissioner to follow the reasoning of White J in Lend Lease on the basis that the construction favoured by White J is correct. I decline to do so. Whether or not the obiter reasons in Lend Lease are correct, the alternative construction preferred by Flick J in Parker is not plainly wrong and so should be followed by another single judge of the Court.
147 For completeness, I should note that the reasoning in Parker has been followed in a number of subsequent decisions, including on the basis that it is not plainly wrong: see Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046 at [364] (Wigney J); Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847 (at [119]) (Barker J); Australian Building and Construction Commissioner v O'Connor (No 3) [2018] FCA 43 at [128] (Besanko J).