Australian Building and Construction Commissioner v Ravbar

The first Legacy Way incident 285 Next, Mr Cradden was asked to describe what occurred during the first Legacy Way incident. He said: I drove to the job site and … pulled up at a gate where there was one of their cranes … I stopped at the gate and the general super of the project come - came out to me and asked me what was I doing .... And I said, "I'm here to stop this crane. We need to get to rid of it." [After identifying the person he spoke to as Mr Young, he went on to say] … He asked me what was I doing, and I told him I was here to stop the crane from operating … He said, "What's the problem?", and … I said, "There's a dispute coming on", and he said, "Well, the crane's not working today because it's raining." … I told him [that the nature of the dispute was] they wouldn't sign an EBA. And he said the crane was not working because it - because it was raining? [He added] … When I told him I was here to stop it, and he says, "Well, if you drive in to the compound, you'll be trespassing and I'll call the police." … I rang Mr Close and told him the project was going to call the police on us … [and] … He just said, "Yes." I didn't get him the first thing, and then he rang me back … And he said, "Yes. Okay. Leave it and we'll regroup." … So I reversed out and left. 286 Finally, he was asked why it was that he went to the Legacy Way project in the first place. His answer was: Because I was told to [by] … I think it was Mr Close. [He said] … Stop the crane … because he wouldn't sign an EBA. When asked how long prior to the first Legacy Way incident it was that he had that conversation with Mr Close, he said: "It would have been - would have been a couple of hours." 287 In cross-examination, he agreed that he was not sure whether it was Mr Ravbar or Mr Close who spoke to him about attending the Legacy Way site prior to the first incident. Nonetheless, he said that he was "not mistaken" that he was directed to go to the site on that occasion. Immediately after giving this answer, he repeated that he could not remember - "No[t] 100 per cent, no" - who out of Mr Ravbar and Mr Close gave him that direction. Finally, in re-examination he reverted to his original position that it was Mr Close. 288 Mr Cradden also said in cross-examination that he did not consider he needed to strengthen his position by saying that "somebody back from head office has told me to do this", although a short time later he agreed that was a reasonable proposition. As well, he said that he did not have any discussion with Mr Close or Mr Ravbar, nor know, whether the Universal Cranes crane at the Legacy Way project was wet hired or dry hired. In this respect, he agreed that it was his responsibility to ensure that the subcontractors on his sites complied with the JUCs. However, he denied that any discussion he had with Mr Ravbar at that time was directed to that question. Further, he said that, even though it was five years ago, he could remember speaking to Mr Close by telephone during the incident because "I was told if I went on to the jobs I - I was going to be arrested for trespassing, and I remember ringing Peter Close." In re-examination, he also said that he rang Mr Close because he was his coordinator. 289 Finally, Mr Cradden said he thought there were two incidents at the Legacy Way project - one where he attended by himself and one where he attended with Mr Toyer. He also said he was sure it was Mr Young he spoke to during the first Legacy Way incident and he was sure it was Mr Young who told him during that incident that if he went onto the site he would call the police. He also said he recalled that it was raining on the day of the first incident, although he was not "100 per cent" sure about that. Finally, he said, while he was "really sure" Mr Young was present at the second incident, he agreed both Mr Young and Mr Atkinson might have been.

The second Legacy Way incident 290 A few weeks after the first Legacy Way incident, Mr Cradden said he was again instructed by Mr Close and Mr Ravbar concerning Universal Cranes and the Legacy Way project. He claimed that instruction was given at an organisers' meeting and it was: "… to get over there because the Universal Cranes were sitting on the project, and take another organiser with me and get rid of the crane." 291 As a result, he said he spoke to Mr Toyer and said: "'Look, will you go over?', whatever morning it was, and we will go to the project and we will stop the crane." He said they discussed how they would stop the crane and decided: "we would either do a safety audit or pull all the guys into the sheds." In cross-examination, he said he could not "recall exactly" what was said in this conversation, but that was normal procedure. In cross-examination, Mr Cradden also claimed that, prior to the second Legacy Way incident, he had a discussion with Mr Toyer about the negotiations between Universal Cranes and the CFMEU for an enterprise agreement, however he agreed that Mr Toyer had no involvement in the process of "discussing with the contract[or]s on civil [construction sites]". He also agreed in cross-examination that, at the time of the second Legacy Way incident, Mr Toyer was "working under [his] wing". He further agreed that, while he asked Mr Toyer to accompany him to the Legacy Way project, that was his site and Mr Toyer was expected to follow his lead. Accordingly, Mr Toyer left him to "do all the talking" during the second Legacy Way incident. 292 Following the discussion with Mr Toyer described above, Mr Cradden said they both went to the Legacy Way project and "[w]e parked the vehicles and we walked over and we stood in front of the crane … [to] Stop it being moved". While they were doing that, he said Mr Young came and spoke to him and said: "The crane was getting demobbed and getting removed off site over the next couple of days, so it wasn't being used." He said he responded: "Yeah. Well, let's hope it is. Because if it's not, I'll keep coming back or I'll stay here till it is gone." During this conversation, Mr Cradden said Mr Toyer was standing beside him. Having received that assurance, Mr Cradden said they left the site. 293 After they left the Legacy Way project site, Mr Cradden said they went back to the CFMEU offices at Bowen Hills and told Mr Close and Mr Ravbar that the crane "was going off the site in the next couple of days." In cross-examination, he said he could not recall whether it was both of them together, or separately, but he then agreed that, outside of an organisers' meeting, Mr Ravbar and Mr Close were unlikely to be in the same room together. 294 During his cross-examination, Mr Cradden was taken to the following entry notice that had been sent by email from Megan Schulze of the CFMEU: Form 2 Entry Notice (regulation 3.27) Fair Work Regulations 2009, regulation 3.27 ENTRY NOTICE I, Paul Cradden, of the Construction, Forestry, Mining and Energy Union, and having been issued an entry perm section 512 of the Fair Work Act 2009, give notice that I propose to enter: Job Details: Transcity JV - Northern Link Tunnel - Legacy Way - Western End On: Friday 20th July 2012 - Prestart As the entry is authorised by section 484 of the Fair Work Act 2009 (which deals with entry to hold discussions), declare that the Construction, Forestry, Mining and Energy Union, under Rule 2, is entitled to represent the indu (sic - industrial) interests of an employee who performs work on the premises mentioned above. Should you wish to discuss this matter further, please contact me on my mobile number … Given at: 18/07/2012 10:47 AM … (Errors in original) 295 He agreed that this notice reflected his practice at the time to send such an entry notice 48 hours prior to any entry to the Legacy Way project site. It was then put to him that he attended the Legacy Way site on 20 July 2012 pursuant to this notice rather than pursuant to any direction. He responded: "Looks that way, yes." When it was suggested that this notice was not consistent with his earlier evidence about a direction being given by Mr Ravbar or Mr Close, he said: "It's obviously separate issues, as far as I remember." In re-examination, he explained what he meant by this answer as follows: Why do you say they were separate matters?---Because when I would go there for prestart that would just be, well, normal practice. Right?---And the other ones I was directed to go there. I would go to prestarts of my own free will. Yes and when you say the other you were directed to go there, by whom do you say?---Peter Close or Michael Ravbar. This last answer is consistent with his repeated agreement during cross-examination that he could not be sure whether it was Mr Ravbar or Mr Close who gave him the direction to go to the Legacy Way site on this occasion.

Background 296 Mr Atkinson was the General Foreman Structures on the eastern portal of the Legacy Way project. He was based near Victoria Park. He reported to Mr Jeff Young, who was the General Site Superintendent. 297 The transcript records him saying that, in 2012, a subcontractor called Power Pylon was working on the eastern portal and Universal Cranes was subcontracting to that company. I interpose to note that, in his evidence, Mr Young identified this company as Bauer Piling (see at [313] below). He also described that subcontractor by that name in his contemporaneous note of the second Legacy Way incident (see at [320] below). This appears to be the same company to which Mr Smith referred in his evidence (see at [279] above). Accordingly, I will assume that Mr Atkinson's reference to Power Piling and Mr Young's reference to Bauer Piling were both intended to refer to the company Bauer as described by Mr Smith at [279] above.

The first Legacy Way incident 298 Mr Atkinson described the following incident at the Legacy Way project involving Bauer: … [Bauer] had been there for quite a while with Universal Cranes, but on 18 July there was an incident where Paul Cradden of the CFMEU came to site and threatened to tie himself to the cranes. He didn't want the crane to be working. 299 He said he knew Mr Cradden because he had dealt with him in the past. He said this incident occurred later in the morning on Victoria Park Road. He said "[i]t was actually a rainy day, so no one was actually working." He described the crane as a 100 tonne crawler crane. He continued with his description of the incident as follows: … Paul had been told by his boss to go and stop the crane from working, and I said to Paul, "If you stop (sic - step) onsite, Paul, I will call the police because you would be - you've got no right of entry." 300 Mr Atkinson explained that any person wishing to exercise a right of entry was required to give 24 hours' notice and, he said, Mr Cradden had not done that. He described Mr Cradden's response in the following terms: … I also explained to Paul that the crane was leaving site on the Monday. It only had a few days left to go. So what happened then was I had said to Paul, "There's no point doing it." So then he rang his boss, explained the situation to his boss, and then he came back and says, "Look, I've been told this crane isn't working. I've got to go onsite and stop the crane from working." So we had another discussion about the only two people who were actually getting anything out of this was me and him. We were both getting wet because it was like today. It was absolutely lashing it down. So what is the point in tying yourself to a crane that's not working? We're going to get you arrested, and it just seems a strange situation. 301 He said he spent half an hour talking to Mr Cradden and during that discussion Mr Cradden told him the CFMEU had a dispute with Universal Cranes over a "new EBA". He said Mr Cradden "phoned his boss again and said, 'Look, the crane is getting derigged. It's raining. There's nobody here', and then he came back and says, 'Right. I'm leaving', and he just left".

The second Legacy Way incident 302 Mr Atkinson then described the following further incident involving the same Universal Cranes crane which, he claimed, occurred two days later, on the Friday of the same week: … So when I walked over [to prestart] about 7 o'clock - by 7.30 Paul [Cradden] had appeared with Steve [Toyer]. I didn't know Steve's second name at that time. And again, this time they were walking around the eastern portal on the job. They had gone through the gates and walked from the eastern portal … So I told them they couldn't be there because they had no right of entry permit … I talked to Paul. Paul was explaining again that the crane could not work. He didn't want the Crane to work ….. Steve wouldn't keep still. Steve just kept walking around the job and I kept saying to Steve, "Please don't walk around the job. You're not allowed onsite." And Steve's like, "No, mate, I can go wherever I want. You can't stop me." I said, "Okay then I'll call the police." … 303 He said Mr Cradden gave him the same reason for wanting to stop the Universal Cranes crane, namely "the wage dispute between Universal [Cranes] and [the] CFMEU". He said Mr Cradden told him that. He said they would not leave the site so he telephoned his general superintendent, Mr Young, who was on the western side of the project and had a discussion with him. As a result of that discussion, he said Mr Young and he came to a decision "as a programming thing" to use two other cranes on the Legacy Way site. He said they could not use the Universal Cranes crane because the CFMEU was "boycotting it". 304 Having reached that decision, he said he went back to Mr Cradden and "… said, 'Look, what we will do is we will use the Legacy Way cranes. If you stand down the Universal Crane because it has only got two days to go, use my two cranes for two days and we will just stop Universal Crane today.' So that's what we do. We stopped the Universal Crane there. Paul said that's fine. Him and Steve left site." 305 Once Mr Cradden and Mr Toyer left the site, Mr Atkinson said he completed a right of entry form together with a "deposition" and emailed them to Mr Young and a person in the company's Human Resources section. The deposition was as follows: … At 7.30am two union representatives from the CFMEU including Paul Cradden came on to site and began boycotting the use of the 100t Universal crawler crane hired to Bauer piling in box 2. They were informed that by doing so they were in breach of the regulations and had no right to be on site without prior notice. They were asked to leave site by myself, but refused to do so. Paul Cradden understood the implications of his and his co-delegate's action and again they both refused saying they had been told by his Regional Queensland manager under no circumstances were they going to leave site allowing the crane to be used. I explained to Paul Cradden that it was the last day it would be used on site as the crane was off hired by Bauer as off Monday morning and would not be returning. He said they knew the situation but still wouldn't leave site. I contacted Jeff Young to inform him of the situation, it was agreed after more discussion with the CFMEU, that Bauer would not use the 100t crane, and TRANSCITY would cover the short fall by utilising both the 55t and 20t L&L cranes to allow the last two piles to be complete in box 2. With this compromise Paul Cradden and the other delegate agreed to leave site. … 306 In his cross-examination, Mr Atkinson claimed that these two incidents were the only "disputes" about rights of entry that he was aware of for the entire Legacy Way project. He denied that his recollection of the events had been significantly affected by the five years that had elapsed since they occurred. His explanation for this response was: "No, I wouldn't [accept that my recollection has been affected], actually. The first [Legacy Way incident] was just hilarious. I've remembered that really, really well, because not many people want to tie themselves to a crane in …". 307 Mr Atkinson also said that if an official attended at the Legacy Way site without having given a right of entry notice, he would normally threaten to call the police, report the incident to Mr Young and make a note of it. Asked to explain why he had not reported the first incident to Mr Young and made a note of that incident, when he had threatened to call the police during it, he said: "he never stepped on site, and he just walked away." 308 Mr Atkinson was adamant in cross-examination that there had been two incidents at the Legacy Way site in that particular week, one on the Wednesday and one on the Friday. He also confirmed his recollection that it was raining on the day of the first incident and that it was a clear day on the second. Finally, he said he did not recall Mr Cradden speaking to Mr Young at the time of the second incident and he said, on that occasion, Mr Cradden told him he had spoken to "his boss".

Background 309 As is already noted above, Mr Young was the general superintendent at the Legacy Way project in 2012. He said he held that position from 4 April 2011 until 31 August 2015. In that role, he said he dealt with four unions: the AWU, the CFMEU, the Electrical Trades Union and the Plumbers and Mechanical Trades Union. However, in the early stages, he said most of his dealings were with the CFMEU and the AWU. With respect to the CFMEU, he said most of his dealings during the project were with an organiser called Paul Cradden. 310 Mr Young said that there were three enterprise agreements operating with respect to the Legacy Way project and one of those agreements covered crane works on the site. He agreed that clauses 7.5 and 7.6 of that enterprise agreement required contributions to be made to the BERT fund. He also agreed that the use of subcontractors on the Legacy Way site was regulated by clause 12 of that agreement. That clause required consultation with the CFMEU before a subcontractor was engaged on the Legacy Way project. With respect to that clause, he said "[w]e would inform the … the union that we were using subcontractors, but we didn't ask for permission to use them." He also agreed that clause 12 required that "… any subcontractors engaged on the project paid terms and conditions either the same as or not less favourable than what was contained in the Transcity agreement". He said that in 2012 such clauses were common in the construction industry and they were taken seriously by principal contractors. 311 On being asked about the enforcement of such clauses he said: If it turned out that the subcontractor was paying rates which were inferior to the Transcity agreement, you would tell them that they had to rectify that?---Yes, that was the case. Ultimately if the subcontractor refused to provide terms and conditions that were the same as or not less favourable than the enterprise agreement the subcontract would be brought to an end?---That's the ultimate end game, but there was a lot - there's a lot of water goes under the bridge before that happens. He said he could not recall any occasion during the Legacy Way project when issues arose concerning subcontractors not meeting the requirements of such clauses. 312 Mr Young said it was common for Mr Cradden and other CFMEU officials to come to the Legacy Way project site and exercise rights of entry. He said from time to time there were disputes about the way in which certain officials chose to exercise those rights. He agreed that was not an uncommon event and that the incident on 20 July 2012 was not the only such entry dispute that had occurred on the project. He said Mr Atkinson would have been aware of those other disputes. He said that the usual practice was for such disputes to be reported to him and for the employee concerned to make a file note of the incident. He said he followed that practice with respect to the 20 July 2012 incident. He also said that if a CFMEU organiser had turned up to the Legacy Way site without having given a right of entry notice, attempted to gain entry, and threatened to tie himself to a crawler crane, consistent with that practice, he would have expected such an incident would have been reported to him. 313 In 2012, he said he was aware of a company called Universal Cranes. He said Universal Cranes was one of the companies that was engaged on the project from the outset. As well, a company called Bauer Piling (sic - Bauer - see at [297] above) hired a 100 tonne crawler crane from Universal Cranes to work near the eastern portal of the project site. That crane was hired on a dry hire arrangement. He said Universal Cranes was engaged on both a wet and dry hire arrangement, but mostly under the latter. He said that with the wet hire arrangement it was "… what I call a pick and carry, would come in a day at a time, leave the site and come back." On those occasions, he agreed that clause 12 of the Transcity enterprise agreement mentioned above would apply to the arrangement. In that respect, he said he was not aware whether Universal Cranes was contributing to the BERT fund, nor the mechanics of how clause 12 would operate in such circumstances. 314 Mr Young said that, during 2011/2012, Mr Cradden asked him on a number of occasions "what were we doing using Universal Cranes". He said the first of those occasions was probably in October/November 2011 when Mr Cradden said "[w]e don't like Universal Cranes". However, he said Mr Cradden did not give an explanation for that dislike. Mr Young said his response was: "We don't need any help sorting out who we're going to use for crane hire. We certainly - we use whoever we choose to use." He said he did not recall Mr Cradden ever complaining about Universal Cranes not complying with JUCs on the Legacy Way project.

The second Legacy Way incident 315 Mr Young said that on 20 July 2012: … I got a phone call from the general foreman at the eastern site, Steve Atkinson, informing me that the CFMEU had turned up at around about 7.30 in the morning and wanted to - had walked onto the site unannounced to stop work and - and directing our foreman or Steve to stop work and tell the subcontractor to stop using the 100 tonne crawler crane. 316 Mr Young said one of the persons who came onto the site was identified to him as Mr Cradden, but he did not know the other person. He said he had Mr Cradden's telephone number so he rang him immediately and had the following conversation with him: … I said, "What are you doing bringing - you know, stopping - trying to stop the crane?" I said, "You haven't got a right of entry that's relevant for the worksite." It was during work time. And I said, "I find it a bit strange that, you know, normally you would ring me and let me know if there was any issues boiling," but I said, "You've turned up unannounced, so you know, you need to leave the site." And he said, "No, I can't do that." I said, "Why not?" "Well, you know, I've got to stop the crane." I said, "Well, you're not going to stop the crane. The crane is going to continue to work." And in fact, I said, "The crane is actually being de-rigged and demobilised." The company had finished with it and it was due to leave the site the next day. And he said, "Well, no." I got the impression that he really didn't want to stop the site. He had been - you know, over the time he had been fairly reasonable to deal with, but I got the impression that he was operate - he - he was under instructions from other people to - to stop the crane. 317 Mr Young explained that the Universal Cranes crane in question was "finishing the last pile", that it had been raining that day and that the crane was to be demobilised the next day and taken off site. Once that happened, he said that, to the best of his knowledge, Bauer paid Universal Cranes for the hire of it. 318 In cross-examination, Mr Young said that Mr Cradden did not explicitly say to him that he was acting on someone else's direction. Then he said the conversation continued as follows: … [He said] "Look, you know, this is unreasonable. You can't," and I said, "If you don't leave the site, we will have no option but to report it to the authorities, because it's a right of entry breach." And he's - anyway, he sort of - I said, "Look, you know, by the way, it's - it's raining. It has been raining and the guys are not working anyway and the crane is being de-rigged." So after sort of, I don't know, 10, 15 minutes with him, he - he sort of said, "Okay." And - and a few minutes later Steve Atkinson, the General Foreman, rang me and said that he had left the site … and that was about the extent of it." 319 Mr Young said, in cross-examination, that when he spoke to Mr Cradden he did not make any threats to tie himself to the crawler crane. He also confirmed his evidence above that it was raining at the time of the incident and that, "[t]o the best of [his] recollection, there was only one occasion when Mr Cradden attended [the Legacy Way] site and sought to have a Universal crane removed … And that was [on] 20 July 2012". Finally, he also said no occupational health and safety issues had been raised and it appeared to him that they just wanted to stop Universal Cranes. 320 Immediately after this incident, Mr Young said that he reported it to his superior and made a file note which he emailed to the project's Industrial Relations or Human Resources division. That file note stated as follows: … At 0730 hours on the 20/7/12 I received a phone call from Steve Atkinson the General Foreman at the eastern portal. Steve informed me that union officials from the CFMEU ,names Paul Cradden and an unknown official were on site to stop the piling contractor Bauer from continuing to use the 100 tonne crawler crane which Bauer had dry hired from Universal Crane Hire. Steve informed me that his conversation with the CFMEU officials was based on the fact that they had entered the site illegally and they were not entitled to stop the piling contractor from using the crane. Steve asked the officials to leave site, they refused. I rang Paul Cradden and ask him what was going on and why they had entered the site illegally and that their actions in stopping work was in breach of our site agreement. Paul acknowledged that their actions in entering and stopping the crane from working was a breach but said that he had been directed to carry out this action by senior officials of the CFMEU. I informed Paul that unless he left the site that I would have no other option but to report his behaviour the relevant authorities in order to protect our site. I also informed Paul that the crane had been off hired and was leaving site the next day. Paul indicated that he knew that the crane had been off hired but still refused to leave site. I said to Paul that the crane only had a few lifts and then it was being de-rigged later in the day and transported off site on sat 21/7/12. Paul then reluctantly accepted this and agreed to leave site. Steve Atkinson rang me back in about 15 minutes and said that the CFMEU had left the site. I informed our HR department of the situation. … (Errors and omissions in original)

Background 321 As is already mentioned above, Mr Toyer said that in 2012 he spent about three to four weeks working with Mr Cradden "to learn the ropes" in the civil area. That entailed "[j]ust to observe how Paul would do things in the industry and learning contacts and what have you for the civil industry." In July 2012, he said, it was unusual for him to have conversations with Mr Ravbar and he usually obtained his directions from Mr Close. 322 Mr Toyer said he did not recall Universal Cranes being discussed at organisers' meetings in July 2012. He said he specifically did not recall an organisers' meeting where: "… Universal Cranes was discussed as an agenda item and a meeting attendee stated to the effect that a Universal Cranes crawler crane had been seen again at the Legacy Way project …". Nor did he recall an organisers' meeting where: "Mr Ravbar or Mr Close in the presence of and acting in conjunction with the other stated … that Mr Cradden was to return to the Legacy Way project and stop the Universal Cranes crawler crane from working and Mr Cradden was to take Mr Toyer with him to stop the crane." In cross-examination, he also said that he did not recall Mr Ravbar and Mr Close stating at an organisers' meeting that "the union wasn't happy because Universal Cranes wouldn't sign the union EBA …". 323 Mr Toyer claimed to have no knowledge of negotiations between Universal Cranes and the CFMEU for an enterprise agreement. He specifically denied having any discussions with Mr Cradden about Universal Cranes negotiating an enterprise agreement with the CFMEU, or that their visit to the Legacy Way project site was in any way related to those negotiations.He also denied being involved in any discussion with Mr Cradden, before going to the Legacy Way site, about stopping a crane or what they were going to do at that site. He further denied that they went to the Legacy Way site to cause "disruption to the Universal Cranes crane" to put pressure on Universal Cranes to sign the CFMEU enterprise agreement. Finally, he also denied knowing who owned the crane, or why it was on the Legacy Way project site.

The second Legacy Way incident 324 Mr Toyer said he recalled the visit to the Legacy Way project site in July 2012. He said he made that visit at Mr Cradden's request. In cross-examination, he said he was "directed" to go to that site by Mr Cradden and denied that any such direction was given by Mr Ravbar or Mr Close. As is already noted above, he also said he did not recall such a direction being given at an organisers' meeting. 325 Mr Toyer said he could not remember what time it was when they arrived at the Legacy Way site, but he believed prestart had finished when they did.He said he could not recall whether they attended at the site pursuant to a right of entry notice. While he was at the site, he said he recalled standing beside a crawler crane, but he denied standing in front of it. He added "[i]t wasn't good practice to stand in front of machinery and mobile plant like that" because it was dangerous. He said he did a safety audit on the crane, but he could not recall walking around the crane. 326 He also said he did not know Mr Atkinson and nor did he recall having any discussion with him at the site on that occasion. He said he did not recall being told by Mr Atkinson to leave the site or that he would call the police. He also did not recall saying to Mr Atkinson "I can do whatever I want". He also said that he could not recall having a discussion with any of the site supervisors or employees at the Legacy Way site that day. 327 Mr Toyer denied hearing Mr Cradden saying words to the effect: "We're here to hold the crane. It has to go.", or "Because it does. We won't be leaving until it's moved. Use some other crane.", or "You know what will happen if it's not moved, we'll just stay here until it is." He said Mr Young would have been "around" at the time of the incident, but he did not recall having any conversation with him. He said he was not a party to any conversation Mr Cradden had with Mr Young. He said he was aware that the crane was due to leave the site that day in any event. He said he did not recall where they went after they left the Legacy Way site, but it was not common for an organiser to go back to the CFMEU offices and report what had happened.

Mr Close and the directions 328 Before completing this summary of the evidence relating to the two Legacy Way incidents, it is necessary to summarise the evidence of Mr Close and Mr Ravbar concerning the directions they allegedly gave to Mr Cradden prior to those incidents. Dealing first with Mr Close, he denied that he had any discussion with Mr Cradden about the Legacy Way project in mid 2012, nor any discussion where he said words to Mr Cradden to the effect pleaded in [23] of the ASOC. He also denied having a telephone conversation with Mr Cradden where he had reported having attended the Legacy Way site and been told to leave the site or he would be arrested. In the course of making these denials, Mr Close claimed Mr Cradden "wasn't my responsibility". Mr Close also denied saying words to Mr Cradden at an organisers' meeting to the effect pleaded in [35]-[37] of the ASOC. In making those denials, Mr Close claimed, among other things, that Universal Cranes was not "a big ticket to the union" (see at [271] above). 329 In cross-examination, he repeated some of these denials but with others, rather than denying them outright, he said "I don't recall", as the following series of questions and answers about the allegations in [23] and [35]-[37] of the ASOC disclose: Now, I suggest to you that you, in July of 2012, said to Mr Cradden, by reference to a Universal Cranes crawler crane that was at the Legacy Way project - that he was to stop the crane?---No, I did not. And that he was to stop the crane because Universal Cranes wouldn't sign the model agreement?---No, I did not. And I would suggest to you that following you giving that instruction to him, Mr Cradden contacted you by phone and told you that the crane wasn't working because of the rain?---I don't recall, I'm sorry. And that you told him to fall back to come back?---I don't recall the conversation with Paul regarding Legacy - I think you said Legacy Way. Yes. I suggest to you that at an organisers meeting in July 2012, Universal Cranes was ---?---Is this the same month? Yes. An organisers meeting that you were present at. Universal Cranes was discussed. And that it was raised at that meeting that a Universal Cranes crawler crane had been seen at the Legacy Way project?---I don't recall. And I suggest that after that comment was made, that you told Mr Cradden to go to the Legacy Way project with Mr Toyer and to stop the crane from working?---I don't recall that conversation. In the course of making these denials, Mr Close repeated his claim that he was not the civil coordinator in 2012. 330 Further, with respect to the allegation that Mr Cradden had reported back to him after the first Legacy Way incident, Mr Close said: Well, I'm suggesting to you that following an instruction given to you by Mr - given to you and Mr Cradden to go out there and stop a crane - a crawler crane at the Legacy Way project, he returned and said to you that the crane was going off the site within a few days?---Are you asking me do I remember that? Yes?---No, I don't remember that. I'm sorry. I - I had no idea what you're talking about.

Mr Ravbar and the directions 331 Mr Ravbar made similar denials with respect to the allegations made against him concerning the second Legacy Way incident (at ASOC [35]-[37]). In support of some of those denials, he said: … I don't even recall Peter or anyone else - we just - we don't ever get into details about subbies. Like, Albert's - just a company. We just - we don't have time. We talk about industry issues ….. campaigns with local government, EBA - like, all these big-ticket items. We never - we just wouldn't - we wouldn't get into the next level down, if you want to call it, in regards to talking about these matters. So I don't even recall Peter or even Steve Toyer. I just know we didn't talk about it. 332 Furthermore, in examination-in-chief, he gave the following series of answers: I suggest that … at an organisers' meeting in July of 2012, it was stated that a Universal Cranes' crawler crane had been seen at the Legacy Way project?---No. And that you told Mr Cradden at that meeting to go to the Legacy Way project with Mr Toyer and to stop the crane from working?---No. I don't even recall any issues with Universal at any meeting. I don't recall even Steve or Peter - it just didn't happen. And I suggest that you did that because Universal Cranes had not agreed to a union agreement?---I keep saying is that there's no use having an agreement. The thing when I had the meeting with Albert was to get him to agree to industry standards. They weren't the unions, it was industry standards. If I can get through that threshold argument with Albert, then we might end up having - hopefully getting an agreement down the track. And I suggest that you did make that statement in order to put pressure on Universal Cranes to enter into a union agreement?---No. I reject that. And I suggest that Mr Cradden later reported back to you that the crane in question was going off the site within a few days?---No.

Mr Ingham and the directions 333 Finally on this topic, it should be noted that Mr Ingham was asked specifically about the allegations at [35]-[37] of the ASOC concerning the organisers' meeting that preceded the second Legacy Way incident. With respect to the details of the organisers' meeting described at the beginning of [36] of the ASOC, Mr Ingham's response is already recorded above (see at [264]). As to the allegations at the conclusion of that paragraph about an attendee at that meeting having seen a crane "again at the Legacy Way project", Mr Ingham said "I don't remember that being said". Finally with respect to the allegation in [37] of the ASOC, about the direction that was given by Mr Ravbar or Mr Close, Mr Ingham said "I didn't hear any direction. I didn't hear any direction like that."

THE TWO PORT CONNECT INCIDENTS 334 Finally, it is necessary to summarise the evidence relating to the two Port Connect incidents. As with the two Legacy Way incidents, I will undertake that exercise in the order in which that evidence was given at the trial: Mr Cradden, Mr Zoller and Mr Toyer. I will then summarise the evidence given by Mr Close, Mr Ravbar and Mr Ingham in relation to the directions allegedly given by Mr Close and Mr Ravbar. Finally, while he was not directly involved in either of the two Port Connect incidents, I will also summarise some evidence Mr Smith gave which related to those incidents.

Background to the second Port Connect incident 335 Prior to the second Port Connect incident, Mr Cradden said he received a telephone call from Mr Ravbar. He said Mr Ravbar asked him "was that crane still operating" and he responded "I don't know". He then claimed Mr Ravbar "told me to get myself and Steve Toyer … to go over to the project first thing tomorrow and then … get rid of it." 336 However, in cross-examination, Mr Cradden was taken again to the 11 August 2015 interview where he said the conversation with Mr Ravbar about the Port Connect project had occurred at an organisers' meeting, not during a telephone call. It was also put to him that Mr Zoller and Mr Toyer would say the visit to the Port Connect site on that occasion was prompted by a telephone call about a suspected safety breach. Further, that Mr Toyer would say that he (Mr Cradden) had told him the complaint about the safety breach had come from a member. In response to this questioning, he agreed that he could not be sure where it was that he received the direction, nor who it came from. Nor could he remember receiving a telephone call from a member about a suspected safety breach. Nonetheless, he maintained that: "On one occasion I did get a phone call. I was told to go there, but which visit it was, I can't remember." Further, he claimed he was sure it was Mr Ravbar who called him on that occasion, but then agreed he could not "be confident about that". 337 In re-examination, Mr Cradden was taken back to this issue and asked: "On that occasion you gave evidence about a phone call and the phone call came from whom?" He responded "Mr Ravbar". Then he was asked "… is there anything about that discussion that you say you had with Mr Ravbar that sticks in your mind?" Mr Cradden's response was "[h]e was extremely angry at me … about … Universal Crane[s] being still on the project".

The second Port Connect incident 338 In examination-in-chief, Mr Cradden said that, following the telephone call from Mr Ravbar, he spoke to Mr Toyer and arranged to attend the Port Connect project the following morning. In cross-examination, he agreed that a CFMEU organiser named Tucker also attended with them. 339 Mr Cradden said that when he arrived at the project with Mr Toyer the next morning, "we parked on the project and walked over to the crane and we started doing a safety audit [and observed that] … [t]he wind meter was broken." He explained that the wind meter "shows the speed of the wind, so it indicates whether it's safe or not safe to operate lifting heavy loads." Mr Cradden said he then said to Mr Zoller: "The crane is not operational and it has to go." Ordinarily, Mr Cradden claimed, a broken wind meter would not be a sufficient reason to remove a crane from a site. Instead, he claimed it would just be "tagged" until it was fixed. 340 Mr Cradden identified two documents that were completed in connection with the visit to the site on that occasion: a Right of Entry Notice (the entry notice) and a CFMEU Official OH&S Complaint Notification form (the complaint form). He agreed he had signed each of those documents. A copy of each document was tendered in evidence. 341 The entry notice was undated, however, the word and dates "Received 23/7/2012 [and] 22/7/2012" were handwritten in the top left hand corner of it. The nominated workplace was "Port Connect". The stated purpose of the entry was: "Section 117 - To inquire into a suspected contravention of the WHS Act that relates to or affects a relevant worker". The following five items appeared in the section headed "Details of the suspected contravention to which this notice relates:" • Non-compliance scaffold rigs • Access egress poorly managed • Falls from hieghts (sic - heights) • Trip hazards from poor housekeeping • Cranes noncompliant 342 Mr Cradden said the complaint form would have been completed as they did the safety audit. He said that form related to the Port Connect job site and was dated 22 July 2012. It was directed to Brady Civil and Marine. Most of the contents of that document were illegible. To remedy that, Mr Toyer, who actually completed the document, later read its contents onto the transcript. The pertinent parts of the complaint form are as follows: NATURE OF COMPLAINT: Occupational Health and Safety: • Fix ladder access eastern end of bridge • No fire extinguishers for gas axes (x 2) • Cranes have no wind vane • Star pickets not capped • Barricade around excavations non compliant • Timber hand rails non compliant • Hand rail … rusting (engineer to check) • Life preserver not hung correctly • Lead not hung on hooks • Fall from height risk on Universal Crane at entry point to cabin • Leads not to be doubled up • Ladder to middle bridge support not secured properly • Trip hazards at access point for above ladder 343 In cross-examination, Mr Cradden agreed that both of those documents were consistent with him attending the Port Connect site on that occasion to deal with a safety breach. Since the Port Connect site was his site, he also agreed that he took the lead in any discussions during that visit and Mr Toyer's only involvement was to complete the complaint form.

Background to the third Port Connect incident 344 In his evidence-in-chief, Mr Cradden described the third Port Connect incident immediately after he described the first Port Connect incident and before he described the second Port Connect incident above. He gave the following description of the third Port Connect incident. 345 Prior to that incident, he said: "We were told in an organisers' meeting to be at Universe's yard the next morning … We just have a lot of organisers and follow the cranes to see where they go … When they get to where they're going to stop them". He claimed Mr Ravbar told him to do this. Despite it being put to him in cross-examination that Mr Ravbar would deny giving such a direction at an organisers' meeting in 2012 and Mr Toyer would deny having heard any such direction being given, Mr Cradden did not resile from this claim. Mr Cradden also disagreed with the proposition that if an organiser wanted to know where a Universal Cranes crane was going he would "just ask one of the members in the [Universal Cranes] yard". 346 It was put to Mr Cradden in cross-examination that he had asked for assistance from other organisers and organised the visit to the Port Connect site because it was "not a very good look" for him to have Universal Cranes on his sites when he knew they were not contributing to the BERT fund and they were not complying with the JUCs. He denied this suggestion as follows: All right. Knowing what you did know about Universal Cranes' notorious non-compliance with the BERT terms, did you consider that it was not a very good look for you, as an organiser, to have Universal Cranes on your sites in circumstances where you knew they were not compliant - they were not paying BERT …?---I didn't consider whether it was a good look for me or not. May I suggest to you that you did consider that very thing? And you took matters in your own hands. And you decided that you should ask some people for assistance?---No. And you should follow a crane and make some representations about their ability to work on the job?---No. That was your proposition?---No. You don't agree?---No. All right. You do agree with me that one of the important things discussed in organisers' meeting was compliance with jump-up clauses?---Yes. And that was something that you, as an organiser, were acutely aware of, especially with respect to Universal Cranes?---Yes. And you were acutely aware of the fact that they were working on your sites, when it was notorious in the industry, that they were not providing the same terms and conditions as all principal contractors?---Yes. You were aware of all of those things?---Yes. And are you saying to me, honestly today, that you didn't think that was a bad look for you?---No.

The third Port Connect incident 347 On the morning after the direction described above (at [345]), Mr Cradden said Mr Sutherland, some other organisers (the names of whom he could not remember) and himself attended outside the Universal Cranes yard. He could not recall whether Mr Toyer was one of the other organisers present. He denied requesting Mr Toyer, or anyone else, to attend to assist him. He said Mr Sutherland and he were in separate vehicles. He said he saw a franna crane come out of the Universal Cranes yard and he followed it to the Port Connect site. While he was following this crane, he said Mr Sutherland and he were in contact by telephone. He said he told Mr Sutherland that he thought the crane was heading to the Port Connect site. He said the crane stopped on a slip road off the Gateway Motorway on the Port Connect project site and he parked his vehicle directly behind it "[s]o it couldn't move". He said Mr Sutherland parked his vehicle to the left of his vehicle. 348 A short time later, Mr Cradden said Mr Zoller came and spoke to him and asked him "what was going on". He said he responded, "As I told you before, we're here to stop these cranes from … We need to get this crane off the site." He said they had a discussion with Mr Zoller about the work being done by another crane and then Mr Zoller had a discussion with the crane operator. He said Mr Zoller said "Look, let him go. He has gone off site." During this discussion, he said Mr Sutherland was with them. 349 After the crane left the site, Mr Cradden said Mr Sutherland and he went back to Mr Zoller's office which was a couple of minutes away and had a further discussion with him. In that discussion, he said he told Mr Zoller "… we would continue to block Universal Cranes … until he got someone else in." Mr Zoller's response was that "… he didn't want any dramas on this job and it wasn't him that made the final decision … who was used and who wasn't … And he would see what he could do." Mr Cradden said they (he could not recall which of them) then provided Mr Zoller with a list of crane companies that had "EBAs … with … [the] CFMEU". During this conversation, Mr Cradden said Mr Sutherland was with him.

Background 350 In 2012, Mr Zoller was the construction manager for the Port Connect project. He described that project as "a joint venture between BMD Constructions and Seymour Whyte Constructions. It was working for the … Queensland Government building a motorway from the Gateway Arterial through to the port, basically a four-lane project, an infrastructure project". 351 Mr Zoller said Universal Cranes provided plant hire services to the Port Connect project on a "wet" hire arrangement. He said that arrangement did not provide Universal Cranes with a guaranteed minimum amount of work. He said Universal Cranes were engaged from the inception of the project, having entered into a plant hire agreement with respect to the project on 18 July 2011. He said that Universal Cranes were selected partly because their main office was close to the Port Connect project and they were therefore readily able to provide the different types of cranes the project required. That included crawler cranes, bigger mobile cranes and franna type mobile cranes that could be driven up and down the project site to undertake smaller lifting and the loading of trucks. 352 Mr Zoller said that in the weeks leading up to the second Port Connect incident Mr Cradden had discussions with him about the engagement of Universal Cranes on the Port Connect site. He said he was "… urging me to consider the ongoing use of Universal Cranes" but he responded that he had no reason to do that. While the following relates to the third Port Connect incident, it is appropriate to interpose it at this point. In cross-examination, Mr Zoller agreed that during an interview with officers of FWBC in November 2015 (the November 2015 interview), he described the issue that the CFMEU had with Universal Cranes in the lead up to the third Port Connect incident in October as "… they weren't paying their guys correctly …" and that it was "… over what funds they were paying some of their redundancies and all that into". He also agreed those statements were based on what Mr Cradden and Mr Schalck had told him.

The second Port Connect incident 353 In July 2012, Mr Zoller said he had a visit from Mr Cradden and Mr Toyer from the CFMEU in relation to a Universal Cranes crane that was subcontracted to Brady Civil and Marine. He said that crane was working on one of the large bridge structures on the Port Connect site. He said the crane was a crawler crane of at least 100 tonne size but he could not recall the exact size. He said he knew Mr Cradden and "he was our organiser" for the Port Connect site. He claimed to have been given no warning of this visit. In cross-examination, he said Mr Cradden told him that the reason for the visit was because he had received a call from a member at the site who had made a complaint about safety. 354 Mr Zoller described the visit in the following terms: … There was a site office down there near the gate, and they came to the site office down there … I [went] … down to the site [office] … and … Mr Toyer in particular, … told me that there was … a reported breach that they were coming to investigate, which I said was fine. So … we went and walked … maybe a 200-metre walk up to where the crane was positioned. They wanted to go up and inspect the crane, due to these allegations of it not being in a safe operating condition, so I walked up with them. And the general conversations around that time were focusing around … the crane, and … on the way up there they picked up on some other … safety issues that needed addressing at the time. 355 Mr Zoller said that when he spoke to Mr Cradden and Mr Toyer at the site office the only site issue they raised "… was that the crane wasn't compliant because it didn't have a wind meter …". However, in cross-examination, he agreed that the entry notice that was issued shortly after their entry did more than notify suspected safety contraventions with respect to a crane. Furthermore, he agreed that the crane was not the only safety related item they looked at during the visit. Nonetheless, he said: "… they were specifically on site to look at the crane. I remember that clearly."He also said there were other cranes onsite, but no other Universal Cranes cranes. 356 When they arrived at the crane, Mr Zoller said: "… they stopped the crane from operating, pulled the driver out and asked him some questions as to why the crane was non-compliant." He added: "… They were requesting that the crane be shut down until it was safe to be operated again." However, in cross-examination, he agreed that he told FWBC during the November 2015 interview, that they made no request "in respect of what should happen with the crane". 357 During the visit, he said Mr Cradden spoke most about the suitability of Universal Cranes and Mr Toyer was "more vocal" about the safety issues. Before they left the site, he said they gave him "an OH&S notice" to remedy some safety breaches on the site. He agreed that this notice raised a number of "genuine safety issues". He identified this document as the complaint form (see at [340] above). He also identified the entry notice (see at [340] above) and said that he did not know who wrote "Received 23/7/2012 [and] 22/7/2012" on the top left hand corner of it. 358 Mr Zoller said he did not think a crane of the size in question required a wind meter. He also said that a wind meter was not ultimately installed on the crane and it remained on site and recommenced work. However, he agreed in cross-examination that this view about the necessity for a wind meter was based on something he was told rather than any particular knowledge he had of the provisions of the Office of Industrial Relations Workplace Health and Safety Queensland - Mobile Crane Code of Practice. He also agreed in cross-examination that Universal Cranes continued to work on the site after this incident and they were paid for their work between July 2012 and October 2012. 359 Following this visit, Mr Zoller said the Human Resources manager for the site assisted him to prepare a "right of entry report".

The third Port Connect incident 360 In October 2012, Mr Zoller said he received a telephone call from Mr Cradden early one morning before pre-start. He said Mr Cradden told him that "these issues with Universal Cranes had … escalated and that … he was basically advising me ahead of time that they were going to come out and … cause some … work stoppages at our site and a number of others that day". Sometime later he said he received a report from his staff that a number of CFMEU organisers had entered the site at gate 11 and blocked the entry gate. He said it was early in the morning, probably around 7am. 361 Mr Zoller said he went to gate 11 and noticed a number of vehicles belonging to the CFMEU organisers parked in the entryway at the end of the gate. He said that particular entry was about 4 to 5 metres wide. He said there was a Universal Cranes mobile franna crane located about 30 metres in front of those vehicles. He said he approached Mr Cradden who was among the group and said he thought they were causing a safety risk because "… we couldn't pull off the motorway safely into our worksite". He said he asked Mr Cradden to move the vehicles. He said Mr Cradden responded that he was "stopping the crane going to work". Mr Zoller said his major concern was to "clear the gate entry" because they were "on an 80 kilometre an hour motorway with trucks scheduled to [arrive]". Accordingly, he said he wanted to clear the job site and move the discussion to another place. 362 Mr Zoller claimed that he saw a number of other people in the vicinity of gate 11 including Mr Toyer. He said Mr Toyer "was definitely there". He said he did not know the names of the other people. When it was put to him in cross-examination that Mr Toyer was in Ipswich at that time that morning, he agreed that he was mistaken "from memory now". In examination-in-chief, he went on to say that Mr Toyer spoke to him quite vocally and said: "this crane wasn't going to work, 'you had better sign it off and get it off the job. We don't want them - we don't want them working here any more'." In cross-examination, he also qualified this saying he remembered the conversation with Mr Cradden but "… in terms of the others I don't know - I don't recall who said … what at the time." Earlier in cross-examination, Mr Zoller agreed that he had had many interactions with CFMEU officials in 2012 and since then and it was therefore difficult to remember what was said during those interactions and who said it. 363 Mr Zoller said that the crane was to be used to lift form work in place to construct a central median concrete barrier, but it had not started work for that day. He said he weighed his options and decided to defuse the situation. To do that he said he spoke to the crane operator "… and I requested the docket off him; explained to him that I wanted him to, … pack up and move off onsite and go and see his manager back at Murarrie." He said as soon as the crane drove out the CFMEU organisers got in their vehicles and left the site. 364 On the following morning, he said he met with Mr Cradden at the Port Connect project site office on Lytton Road. During that discussion, Mr Cradden said that he wanted Universal Cranes removed from the site and replaced by another contractor. He said Mr Cradden then produced a document listing six or more crane companies that had been ratified by the CFMEU and deemed suitable to be engaged. Despite having received that list, Mr Zoller said in cross-examination that he decided to retain Universal Cranes on the site. 365 After the day of this incident Mr Zoller said Universal Cranes did not perform any more franna crane work on the site during the day. Instead, he said they undertook night time work on the site. He said there was still about six weeks of critical work to do until practical completion on the site. He said "… I sat down with our project manager and team and talked about a strategy going forward, and I made the decision that to keep Universal Cranes on night shift on the basis that I didn't think that it would attract any union attention at night because those guys don't get out of bed at night time too much." 366 In the days following this incident, Mr Zoller said the Human Resources manager for the site assisted him to prepare a "right of entry report" with respect to the incident. That report was dated 16 October 2012. It recorded the CFMEU officials involved as Paul Cradden and four other officials. The details of the incident were recorded in the body of that report as follows: … 16/10/12 Approx. 0615 Jason Zoller received advice from Paul Cradden that CFMEU would be targeting Universal Cranes plant in use at Port Connect Approx. 0630 2 CFMEU representatives in 2 vehicles (no UHF, flashing lights, or Port Connect access permit) pulled into Gate 11, westbound on the Port of Brisbane Motorway, parking in the live traffic lane/median blocking the Universal Cranes' franner access to the Port Connect site. Gate 11 dogger called LH Gary Grant, who advised Superintendent Rob Pickard, who advised Construction Manager Jason Zoller of CFMEU presence at Gate 11. 3 additional CFMEU representatives in 2 additional vehicles arrived to Gate 11. GG directed CFMEU personnel and vehicles to enter within the site away from live traffic to make the area safer. JZ arrived to Gate 11. JZ advised Paul Cradden CFMEU was holding up the work activity by preventing the franner to commence work. PC advised JZ that CFMEU intention was to prevent any Universal Cranes plant from commencing work. CFMEU representatives stated they had followed the plant from the Universal Cranes' yard that morning and had undertaken similar action on a variety of sites this morning. CFMEU representatives stated it was their intention to remain on site as long as the Universal Cranes' plant was present and that they sought JZ's cooperation in having the plant removed from site immediately and the prevention of any Universal Cranes' plant entering Port Connect site in future. JZ call Joachim (Manager at Universal Cranes). JZ stated CFMEU presence holding up work so to keep the activity progressing, a cross hire arrangement needed to be actioned immediately. Universal Cranes' franner was removed from site with Gate 11 crews waiting on cross hire crane. JZ and CFMEU representatives discussion post removal of Universal Crane plant included CFMEU recommending a list of preferred suppliers to JZ, with desire for Port Connect not to allow Universal Cranes to return to site. JZ stated that due to a) Universal Cranes' operators' knowledge of the work site, team members, activities and safety culture and b) short (>10 weeks) amount of time until practical completion of the project, Port Connect preference would be to encourage Universal Cranes' management to sort out CFMEU concerns directly, without involving or impacting on Port Connect. JZ stated Port Connect would investigate prices, etc of some of CFMEU's preferred suppliers. CFMEU representatives departed before 0830 No cross-hire plant was supplied by Universal Cranes so by 1030 Gate 11 crew commenced work activity with alternative plant and methodology.

Background 367 It is convenient to begin with the allegations in the ASOC concerning the events leading up to the three Port Connect incidents. First, with respect to the allegations in [63] of the ASOC, Mr Toyer said he did not recall hearing any of the statements Mr Ravbar and Mr Close allegedly made at an organisers' meeting in the lead up to the first Port Connect incident. 368 Next, with respect to the allegations in [82]-[84] of the ASOC, Mr Toyer also said he did not recall hearing any of the statements Mr Ravbar allegedly made to Mr Cradden at an organisers' meeting in the lead up to the second Port Connect incident. In particular, he said, he did not think Mr Ravbar would have made the statement in [82] of the ASOC about having driven past the Port Connect project site because: "… I don't even know why Michael Ravbar would be driving out in that area [Port of Brisbane] anyway." 369 Finally, with respect to the allegations in [134]-[136] of the ASOC, Mr Toyer said he would have attended an organisers' meeting in October 2012 but he did not "recall any organisers' meeting discussing Universal Cranes". He said he did not recall hearing any of the statements Mr Ravbar allegedly made to an organisers' meeting in the lead up to the third Port Connect incident and, if they had been made, he thought he would recall that. He specifically said that Mr Ravbar had "never directed [him] to follow a crane". He also denied coercing Universal Cranes to enter into a CFMEU model agreement during the third Port Connect incident or discriminating against Universal Cranes as a result of that incident.

The second Port Connect incident 370 Mr Toyer said he remembered attending at the Port Connect project site in about mid 2012. He said: "… Paul Cradden had notified me that he had received a phone call in regards to a safety issue at the site and asked if I would go along and assist him … in investigating." He said Port Connect was one of Mr Cradden's sites. He said he did not recall having a conversation with Mr Cradden later that day about removing a Universal Cranes crawler crane from the Port Connect site as alleged in [85] of the ASOC. He also said the allegation in [86] of the ASOC about attending at the Port Connect site and trying "to identify a safety issue with the crane that they could rely upon so as to disrupt its use" was untrue. In addition, he said it was untrue to suggest that he attended the Port Connect site on that day "… to disrupt the Universal Cranes so as to coerce Universal Cranes to enter into an agreement with the CFMEU …". He reiterated that the reason for his visit to the site that day was because "… Paul [Cradden] asked me to go in relation to a safety issue that he had received a phone call about." 371 With respect to the statement in [87] of the ASOC that Mr Cradden and he "attended at the [Port Connect] Project and stood in front of a Universal Cranes crawler crane", Mr Toyer said he did not believe he would have done that because "[i]t's not safe to do so". 372 As to the allegation in [88] of the ASOC, he said that he did a safety audit on a crawler crane at the Port Connect site during that visit. Specifically he said: "I recall we were looking at the work area where this crane was, inspecting the crane itself to see that it met the safety standards and the work area and I found numerous issues … Issues other than the crane." However, he agreed that, apart from the absence of a wind meter and the "fall from height" risk, the other items detected in the safety audit related to Brady Civil and Marine. He said Brady Civil and Marine was a company that built bridges, wharves and similar constructions and they were the contractor in the area in question and he thought "the crane was theirs". 373 In cross-examination, Mr Toyer agreed that when they arrived at the Port Connect site that day the first thing they did was to walk over to the area where the crane was located. However, he claimed there was more than a crane in that area and he then performed a safety audit on the whole work area including the crane. Before he went to the site he said he was aware that safety issues had been raised but he was not exactly sure what they were. 374 Mr Toyer said he knew Mr Zoller, and that he was the site manager or superintendent on the Port Connect site. He said he did not believe that Mr Zoller was present when they first arrived at the site. He said he could not remember having a conversation with Mr Zoller on the Port Connect site that day. Instead, he said Mr Cradden did the talking that day and decided where on the site they went. He said his role was to do the safety audit. He said he did not make the statement alleged in [90] of the ASOC and he did not hear Mr Cradden making that statement. 375 Mr Toyer said he was familiar with the Office of Industrial Relations Workplace Health and Safety Queensland - Mobile Crane Code of Practice 2006. With respect to the use to which wind meters on cranes are put, he said: "My understanding was … cranes are limited by how much wind is around as to what they can lift and how they can lift it. Without a wind meter, the operator of the crane has no way of telling whether or not he's partaking in a safe lift or safe work practice …". He added that "The Port of Brisbane is open to … Moreton Bay and, as such, [it] … experiences a lot of high winds, being on the coast. So I would think … it would be more important to have one [wind meter] there than anywhere else." 376 He also said a wind meter on a crane provides a reading inside the cabin so the crane operator can see whether or not it is operating. To install a replacement wind meter while a crane is on site, he said a qualified rigger would have to climb up the jib of the crane. In cross-examination, he agreed that the absence of a wind meter did not warrant the crane being removed from the site and he denied that he asked to have that occur that day. He also maintained his view that without a wind meter the operator would not know what the wind speed was and it would not be safe to lift with the crane. 377 Mr Toyer identified the entry notice (see at [340] above) which, he said, they were required to give as soon as reasonably practicable on arrival at a site. He said he completed that form. He also identified the complaint form (see at [340] above) and his handwriting and signature on that form. He said the complaint form is usually given to the principal contractor in order that they may "rectify the [safety] issues in a timely manner". He said on this occasion the complaint form was issued to Brady Civil and Marine. He also said he completed that form on the site after he had undertaken the safety audit. As is already noted above, because both those documents were barely legible, Mr Toyer read their contents into the transcript at trial. 378 Mr Toyer explained what the entry "falls from heights" in the complaint form meant. He said: When the Work Health hand (sic - and) Safety Act was brought in, in 2011, there's provisions in that against falls from heights. They talk about protecting a worker from falling from one level to another, and that's what that's in relation to … It's one of the leading causes of injury in the industry, over the years … I believe that [entry] would be in relation to the entry points of the cabin on the Universal Crane, … they've got to be about two metres off the ground before they're getting safely into the cabin … plus there's other issues … in relation to the ladders and scaffold, … if the scaffold is not right, it can create a risk of a fall from a height. 379 Mr Toyer also said the entry in the complaint form referring to "cranes" having no wind veins was a mistake because there was "definitely" only one crane in the area. 380 In cross-examination, Mr Toyer denied that he had no legitimate reason to go to the Port Connect site on that day. He claimed that the reason he made the visit was "due to suspected contraventions of the Work Health and Safety Act." On the same theme, he also denied that it was fortuitous that he found the safety issues that he did on the site and thereby justified his visit.

The third Port Connect incident 381 Mr Toyer said he remembered in October 2012 "turning up to the café around the corner from Universal Cranes' yard." He said it was "fairly early in the morning" when he did that but he could not recall the exact time. He said he did that because he was told to "by Paul [Cradden] at the meeting". He said he did not recall why Mr Cradden told him to do that. 382 He said Mr Cradden and Mr Sutherland were amongst the other organisers who met at the café that morning. He said they had breakfast at the café and he was then asked by Mr Cradden to follow a Universal Cranes crane. He did not know why Mr Cradden asked him to do that. However, he said he followed the crane because "… It's something I had done before, to follow a crane or a … truck that I knew to be part of the industry, to see where work was, where potential members are." 383 He said he followed that crane to Ipswich and "[t]hey pulled up at a gate to a paddock. When they pulled up there, I got out of the car and had a chat to them about union membership, promoting the CFMEU, and a bit of a look at their crane and that was it."He said he did not attend at the Port Connect site that day and accordingly he did not have any conversations with anyone at that site on that day. 384 In cross-examination, Mr Toyer denied that this account of him having taken a two hour round trip to follow a crane to Ipswich was "just nonsense". He also repeated that it was Mr Cradden who asked him to follow the crane that day.

Mr Close and the directions for the three Port Connect incidents 385 As with the two Legacy Way incidents, both Mr Close and Mr Ravbar denied the allegations in the ASOC that they had given any directions to Mr Cradden prior to any of the Port Connect incidents. The following is a summary of those denials and some supporting explanations that they provided. 386 First, while he queried the proposition that there were two organisers' meetings in July 2012 and he, like Mr Ingham, eschewed the use of the expression "pattern" agreement, Mr Close agreed that there were discussions at organisers' meetings in 2012 about how the negotiations with Universal Cranes were proceeding. He said: "… I remember being questioned by the organisers about how you're going. 'Albert has still got the same ideology as he had in 2006. He's not interested in the award structure, he's not interested in the classification structure.' Those sorts of answers would have been given, which I think is - we're not making any headway with him." 387 However, he denied that he used the word "campaign" in those discussions and he also denied saying that "Universal Cranes could not work on CFMEU sites until Mr Smith was prepared to play ball". He added: "Bearing in mind, the industry was starting to strangle him with - with - with the jump-up clauses and things. And as I said earlier, you can't comply if you're not in the funds." 388 Asked whether he had ever used the word "campaign" in his conversations with Mr Smith, he said: "It's a long time ago now, but I don't think so because we weren't campaigning him. I could - I could have taken him or left him. He came to us." He added: "Albert spoke to me a number of times about a ban, and I told him, 'We don't have a ban on you. The CFMEU has no ban on Universal Cranes.' I think, once again, he's getting confused with what's happening in his discussion trying to win contracts. He can't comply because he's not in the funds …". 389 As to the allegations at [82]-[84] of the ASOC concerning the second Port Connect incident, Mr Close denied having heard Mr Ravbar say at an organisers' meeting in July 2012, or anywhere in his presence: "… that he had driven past the … Port Connect project - and had seen a Universal Cranes crane operating at the project." 390 Finally, with respect to the allegation at [134]-[136] of the ASOC concerning the third Port Connect incident, Mr Close said: "… I don't believe they [Universal Cranes] were an agenda item, but, once again, there would have been general business questions asked of myself or the secretary about how we're going with Universal." However, he denied hearing Mr Ravbar, or anyone else, giving any directions at an organisers' meeting, or anywhere, to the effect pleaded at [136] of the ASOC, namely about following Universal Cranes' cranes and stopping them from working. 391 He added that: "That's the kind of thing that an organiser could organise himself with his mates." When asked to explain what he meant by that, he said: … from time to time, an organiser will say, "Hey, give me a hand with something", you know, I mean, they do it all the time. We don't always know exactly what organisers are doing, if they're pairing up to go and - and - onto a difficult job or if they themselves think, shit, I'm in a bit of trouble here, I might have to bail myself out, so I'm - all I'm saying is I - I - I wouldn't put it past - and I'm not saying this derogatory, but I wouldn't put it past Paul to get his mates to help him.

Mr Ravbar and the directions for the three Port Connect incidents 392 Initially, when taken to the allegations in the ASOC relating to the Port Connect incidents and being asked what he recalled about the Port Connect project in 2012, Mr Ravbar said: "Not a lot. Had never any dealings with it. I only found out, just recently, who actually built the thing." Asked to explain what he meant by "recently" he said: "When this case started, in regards to … the Port Connect and I was trying to think who did the job and who was the principal contractor …". Similarly, in cross-examination he said he "… knew of the project with the announcement, but, other than that, just didn't deal with it." 393 Mr Ravbar specifically denied saying the things alleged at [63] of the ASOC with respect to the first Port Connect incident or participating in discussions about those matters. 394 With respect to the allegations at [82] of the ASOC concerning the second Port Connect incident, he added to his denial that: "… The actual Port Connect is down the port of Brisbane. It's nowhere near where I live. I've never been to the projects, so why would I want to mention it? But it just didn't happen." And further: "I didn't even know that Universal was on the job. Universal was - this might be a bit disrespectful - was a nothing. It wasn't a big issue for me. It was - we don't discuss those things at organisers' meetings, in regards to subbies. It's - but as I said, I didn't even - never been to the Port Connect job. Didn't know - you know, I didn't even know Universal were there. There you go." 395 Mr Ravbar made similar denials with respect to the allegations at [134]-[136] of the ASOC concerning the third Port Connect incident, adding that those alleged events: … Never happened at those organisers meetings. If - it's not my job. It's the senior officers. But whatever happened in regards to enterprise bargaining or any issue on the job, it's up to those senior officers. I would never give instructions because it's not my job, it's not my responsibility - is that there's senior officers in the organisation. They're elected like I am - is that I've got millions of other jobs - is that that would never, ever happen in regards to - what would have been left at the meeting is that whatever the issues were, that assistant secretary, that coordinator would talk to that official or officials and they would give those instructions, if there was instructions given, to do whatever needed to happen. But it wouldn't come from me. (Errors in original) 396 He also said that an operation of the kind described involving following Universal Cranes' cranes to work sites was a "silly idea". He said: … if you want to find out where the cranes were going the next day … we had a good union membership there. We had good delegates. Simple phone call. Even if you went out in the morning and spoke to a few of the boys, you would find out straight away where the cranes were going. So why you would send four people there … you wouldn't do it. Sorry, I have to say it's silly. 397 When tested on this proposition in cross-examination he said: "… we had extremely strong union membership there [at Universal Cranes], and we had some really good delegates." However, he agreed that, if an organiser needed to have a face to face discussion with a delegate about crane movements, he would need to have a right to enter the Universal Cranes' yard and speak to that delegate. Nonetheless, he repeated his view that it was a "silly idea" to follow Universal Cranes' cranes to detect where they were working.

Mr Ingham and the directions 398 Mr Ingham was also asked about the organisers' meetings described in the ASOC that preceded the Port Connect incidents. First, with respect to the allegations in 63 of the ASOC (see at 54 above), Mr Ingham said: "I don't remember it specifically, but I remember Universal being discussed, along with other subbies that we hadn't yet reached agreement with and so, without speculating, it's likely there was a report given to that effect". Secondly, with respect to the allegations in 63 of the ASOC (see at 54 above), Mr Ingham said "I don't remember that ever being said. It's unlikely that language would be used, but I don't remember it being said at all". He then explained that the unlikely language was the use of the expression "pattern agreement". As to the allegations in 63 and 63 of the ASOC (see at 54 above, Mr Ingham responded that "I didn't hear that said". 399 Similarly, as to the organisers' meeting described at [82]-[84] of the ASOC concerning the second Port Connect incident (see at [34] above), Mr Ingham said "I don't remember that being said at an organisers' meeting specifically …" and "… I didn't hear that, sir". Finally, with respect to the organisers' meeting described at [134]-[136] of the ASOC (see at [42] above) and, in particular, the direction to follow cranes from the Universal Cranes' yard, Mr Ingham said "If that was said [at] an organiser's meeting, I wasn't there. I don't remember it being said. It seems unlikely to me that that would get said". His explanation as to why that seemed unlikely to him was as follows: Well, the organiser's meetings are normally about reports about what's going on. Specific directions for industrial campaigns are not typically given at a big organiser's meeting, mainly because there's - you know, there's other people in the room or on the phone that aren't relevant to every single, you know, employer that we're dealing with. The similar explanation Mr Ingham gave in cross-examination is already set out above (see at [265]-[266]).

Mr Smith's involvement in the Port Connect incidents 400 Mr Smith was not present at any of the four incidents at the centre of this proceeding. However, he had some involvement immediately after the second Port Connect incident and he made some observations immediately after the third Port Connect incident. Mr Smith said the Port Connect project was close to Universal Cranes' depot. He said Universal Cranes worked for both the head contractor and subcontractors on that project. He described the cranage services it supplied as: "… dry hire cranes and … crawler cranes on hand and maintained, and we did a lot of casual crane hire". He said they did both night work and day work. 401 With respect to the second Port Connect incident, Mr Smith said that upon being informed about that incident by his employees he instructed them "… to immediately put a wind meter on the crane". He did that even though he considered it was technically unnecessary. He said that he then went to the site and inspected all the cranes there, including those supplied by other organisations, and he claimed that none of them had wind meters. 402 With respect to the third Port Connect incident, Mr Smith said that, when he was going to work one morning, he observed some cars parked outside the front gate of the Universal Cranes' yard. He said later that day a crane from the Port Connect project "… got sent back to the depot, and the client paid for the day." Beyond claiming that it was before the end of October, he was not able to say when these events had occurred.

ANALYSIS - THE FOUR INCIDENTS AND THE ALLEGED CONTRAVENTIONS

Resolving the contextual issues 403 With the possible exceptions of the first Legacy Way incident and the second Port Connect incident, the analysis of the four incidents and the alleged contraventions arising from them requires the resolution of many of the contextual issues outlined above (at [146]-[282]). For that reason I will return to those issues now. It is convenient to commence with the issue which is identified at 154 above: whether in or about 2012, Mr Ravbar and Mr Close wanted Universal Cranes to seek to enter into a CFMEU model agreement. Next, it is convenient to deal with the issue identified at 154 above: the progress of negotiations in 2012 directed to Universal Cranes entering into either a CFMEU model agreement or a non-union enterprise agreement. Because the three issues identified in [156] above concern specific aspects of that issue, I will address them concurrently with that issue. Then I will address the issue identified at 154 above concerning the discussions that occurred at CFMEU organisers' meetings in 2012. Finally, I will address the remaining contextual issue identified at 154 above when I come to consider the Legacy Way incidents below. The following are my findings on the issues I have identified above. 404 As an abstract proposition, there was, in 2012, a general desire on the part of the three senior officials of the CFMEU to have Universal Cranes enter into a CFMEU model agreement. Mr Ingham agreed there was such a general desire (see at [238] above). While he attempted to claim it was not a priority, Mr Close agreed they were hopeful of getting an agreement with Universal Cranes. Mr Ravbar's desire in this regard is evidenced by the request he made of Mr Smith during the 23 August 2012 meeting (see [232] above). However, for the purposes of this proceeding and the rationale pleaded in the ASOC (see at [148]-[152] above), this issue is more nuanced. It is not concerned with a general desire, but rather with whether Mr Close and/or Mr Ravbar were specifically motivated to achieve that outcome in 2012 such that it formed the central rationale for their conduct when the four incidents at the centre of this proceeding took place. 405 To answer that question, it is instructive, first, to consider the second issue mentioned above: the progress of the negotiations in 2012. Furthermore, it is convenient to begin that exercise by examining the history of those negotiations. That is so because that history shows that, from the outset, the sticking point in those negotiations was Mr Smith's refusal to join the BERT fund. That first emerged in 2005/2006 when Mr Smith indicated to Mr Close that he was unwilling to agree to continue contributing to the BERT fund, as he had done under the extended enterprise agreement in the transitional period immediately after he purchased the Universal Cranes business in 2003. While Mr Smith also had concerns about the classification structure for employees and the RDO arrangements (see at [161] above), his overriding objection throughout was BERT fund membership. On that issue, apart from lack of choice and cost, Mr Smith said he had "some problems in principle with those funds" (see at [162] above). I infer that this is a reference to his view that the BERT fund was a union "slush fund". In addition, Mr Smith believed that the equivalent funds and schemes he maintained for Universal Cranes' employees offered the same level of benefits as the BERT fund (see at [165] above). 406 Because of these divergent views about the BERT fund, the negotiations in 2005/2006 failed. Thereafter Universal Cranes entered into a series of non-union enterprise agreements with its employees, the last of which had a nominal expiry date in or about July 2011 (see [166] above). In the meantime, both parties maintained their countering positions on BERT fund membership. When the time came to negotiate a replacement enterprise agreement in early to mid 2012, that issue continued to be the sticking point. Both Mr Smith (see at [179] above) and Mr Close (see at [209] above) gave oral evidence to that effect and Mr Smith confirmed that was so in the email he sent to the CFMEU on 21 June 2012 in which he recorded the history of the negotiations to that point as follows (see at [180] above): Negotiations over the past years between Universal Cranes and the CFMEU have ended in a stalemate where we (Universal Cranes) have refused to participate in the B[E]RT, and the CFMEU have refused to be involved in any employment agreement which does not include compulsory B[E]RT fund membership. Universal Cranes have therefore proceeded with agreements with our employees which are independent of the CFMEU, but which provide equivalent redundancy, severance, training and other benefits as enjoyed by B[E]RT fund members but paid for directly by the company. Universal Cranes have elected to suffer the economic consequences of being locked out of some CFMEU controlled projects as a result of this non B[E]RT participation policy. (Emphasis added) 407 After referring to an agreement which the CFMEU had entered into with one of his competitors (Metro Lift) and which, he claimed, did not contain a requirement to contribute to the BERT fund, Mr Smith went on to say that he had: "recently re visited our policy on B[E]RT fund membership for Universal Cranes employees". That review obviously led to a re-commitment to his existing policy because he went on to state that: "We have therefore maintained our long standing policy of nonparticipation in the fund". Finally, after recording his understanding that, for its part, the CFMEU had not changed its policy on "compulsory membership of B[E]RT", he concluded by stating that, if that were so: "… no further action is required in regard to this matter and the status quo can continue". 408 The definitive statements in this email were, in my view, what Mr Smith was referring to in his evidence when he said he told the CFMEU "very clearly" what his position was with respect to the negotiations in mid 2012 (see at [183] above). In other evidence, he described this decision as a "business decision" which led to him arranging to put the 2012 EA in place (see at [182] above). This description accords with the last paragraph of the 21 June 2012 email emphasised above (see at [406]). Hence, by 21 June 2012, Mr Smith had made a considered "business" decision to continue to maintain the "non B[E]RT participation policy" that had prevailed in his company since 2005/2006. 409 This description of the state of the negotiations up to about mid June 2012 is also broadly consistent with that outlined by Mr Close in his evidence (see at [207]-[209] above). 410 There are two final aspects of the negotiations in this period to be noted. First, on both accounts, it is relatively clear that it was Mr Smith who approached the CFMEU in early to mid 2012 about Universal Cranes entering into a CFMEU model agreement (see at [174], [176] and [207] above). Secondly, Mr Smith described this stage of the negotiations as "amicable" (see at [188] above). 411 After this email of 21 June 2012 and until early to mid August 2012, there is little, if any, evidence that any negotiations occurred. Apart from the "recent conversations" mentioned in Mr Smith's email of 14 August 2012 (see at 189 above), which I take to refer to the period immediately prior to 14 August, Mr Smith did not refer to any such negotiations in his evidence. Mr Smith's email of 14 August 2012, therefore, represents his next recorded contact with Mr Close after his 21 June 2012 email above. It is also apparent on the evidence that it was Mr Smith who initiated this August re-commencement of the negotiations. 412 What little evidence there is of any negotiations occurring in the interim period came from Mr Close. He said that in June 2012 the negotiations were "at a crossroads", but then he claimed they "weren't … all over" (see at [210] above). In what followed, he appeared to suggest that the negotiations continued in the interim and that he handed them over to Mr Ravbar in late July or early August because he did not have the authority to agree to any changes to the classification structure (see at [211] above). 413 I do not consider this is likely to be an accurate account of the state of the negotiations during this period. First, and most significantly, it is not supported by the contemporaneous record, namely the contents of the 21 June 2012 and 14 August 2012 emails mentioned above. Secondly, Mr Close's assertion in this evidence that the classification structure was in contention in July 2012 is not consistent with other evidence which shows that that issue did not come to the fore until after Mr Smith's 14 August 2012 email when the sticking point of BERT fund membership was removed. I therefore consider Mr Close was mistaken in this evidence and was confusing the recommenced negotiations that began in early to mid August 2012. Accordingly, I do not consider any negotiations occurred in the interim period. 414 Notwithstanding this conclusion, during that period, there is, I consider, ample evidence that Mr Close became aware of the 2012 EA. Indeed, he freely acknowledged that fact in his evidence (see at [212] above). Given this acknowledgement by Mr Close and Mr Ravbar's close involvement with the negotiations during August 2012, in particular at the 23 August 2012 meeting, and his own evidence that the CFMEU had "some really good delegates" working at Universal Cranes at this time (see at [229] above), I consider it is also likely that Mr Ravbar was made aware of the existence of that agreement by, at the latest, the time of the 23 August 2012 meeting. I do not, therefore, accept Mr Ravbar's claim in evidence to have had no knowledge of the 2012 EA until the trial of this matter (see at [217] above). 415 Next, in answering this question about the apposite rationale at the time of the four incidents in 2012, it is instructive to examine what it was that caused Mr Smith to change his opposition to BERT fund membership. That is so for two reasons. First, to dispose of a claim Mr Smith made about the cause of that change and, secondly, to identify the true cause. The change in question is first recorded in the second paragraph of Mr Smith's email of 14 August 2012, where he informed Mr Close that he was willing to propose an amended enterprise agreement to Universal Cranes' employees which included them becoming members of the BERT fund. The reason Mr Smith gave for that change is set out in the first paragraph of that email. There, he asserted that decision had been brought about by a "boycott" or "ban" imposed by the CFMEU. He said: I refer to our recent conversations regarding the CFMEU boycott of Universal Cranes on projects where the head contractors are prepared to support your action against us. This action is having a significant effect on our business and will result in our being forced to terminate employees in the near future if it is not lifted. You have previously indicated that you will lift the ban on us if we force our employees to join the BERT fund and the BEWT fund. (Emphasis added) Elsewhere in his evidence, Mr Smith claimed that this "ban" was put in place from late July (see at [188] above). Plainly the implication in those statements and in Mr Smith's other evidence (see at [184]-[188] above) was that this "ban" or "boycott" was illegitimate and it was the cause of his change of mind. 416 Insofar as it asserts that there was an illegitimate ban or boycott in place at this time, I do not consider this claim can be accepted as accurate, at least insofar as it applies to the period prior to Mr Smith's email of 14 August 2012, or shortly before that date. That is so because I consider the notion that the CFMEU had any reason to impose some form of illegitimate ban or boycott on Universal Cranes in or about late July 2012, or did in fact do so, does not withstand close analysis. To demonstrate why that is so, it is convenient to begin with the activities which were said to constitute the "ban" or "boycott" to which Mr Smith was referring. As appears from the paragraph of Mr Smith's email above, those activities were the "projects where the head contractors are prepared to support your action against us". In his oral evidence, Mr Smith also described those activities as "getting my company banned from project sites" (see at [184] above). It is also important to note that in the last sentence of his 14 August 2012 email (as quoted above at [415]), Mr Smith made a link between those activities and BERT fund membership. 417 Those statements and the evidence which I have summarised earlier in these reasons make it relatively clear that Mr Smith was, in fact, referring to a legitimate campaign undertaken by the CFMEU, in conjunction with the principal contractors on civil project sites in Brisbane, to enforce the JUCs contained in the enterprise agreements that the CFMEU had entered into with those principal contractors with respect to those sites. Significantly, those agreements included the enterprise agreements applying to both the Legacy Way project and the Port Connect project (see at [205] above). Indeed, as Mr Young said in his evidence, such clauses were common in the construction industry in 2012. He also added that they were taken seriously by principal contractors (see at [310]-[311] above). That evidence accords with the history of the use of JUCs as an industrial instrument as described by other witnesses, including Mr Cradden (at [235]-[236] above), Mr Close (at [205]-[206] above), Mr Ravbar (at [218]-[227], [229] and [232] above) and Mr Ingham (at [237]-[238] above). It should be added that there was no suggestion in this proceeding that the insertion of a JUC in an enterprise agreement, or the proper enforcement of such a clause once inserted, by itself, constituted unlawful or illegitimate industrial activity. 418 More significantly, the evidence shows that Mr Smith was well aware of the connection between JUCs and their enforcement, his refusal to join the BERT fund and Universal Cranes' difficulties in obtaining access to particular civil construction project sites in Brisbane (see at [167]-[173] above). One example of that awareness is the content of his email of 21 June 2012, as discussed above (see at [406] above). Another example is the evidence he gave where he identified the head or principal contractors to whom he was referring in his 14 August 2012 email and described how those contractors had taken the opposite view to him on the implementation of JUCs, in particular on whether the scheme he operated provided equal benefits to those provided by the BERT fund. He pointedly described the sites operated by that group of contractors as "union controlled" sites where the CFMEU model agreement applied (see at [172] above). 419 In other evidence, Mr Smith characterised these "union controlled" sites and the sites not in that category as falling into two mutually exclusive markets as follows: "in Brisbane city … we had non-union clients that didn't want any involvement with them [the CFMEU], and we had building sites in the city that were union sites that we couldn't work there unless we were blessed by the union" (see at [198] above). Gaining access to the "union controlled" sites was, he said, what motivated him, in the first place, to approach the CFMEU in early 2012 and to consider entering into a CFMEU model agreement (see at [174] above). At two points in his evidence he described the choice he thought he had to make between these two markets as a "business decision" (see at [174] and [198] above). 420 With respect to that descriptor, it is apparent from Mr Smith's email of 21 June 2012 that, as at that date, he had made a business decision to choose the non-union sites market described above (see the discussion at [408] above). It is equally apparent from his 14 August 2012 email that he had, by that time, decided to reverse that earlier decision and to choose the "union controlled" sites market instead. It is also worth adding that, at another point in his evidence, Mr Smith appeared to nominate the catalyst for this reversal as being "kicked off [the Curtis Island site at Gladstone] on account of the CFMEU". He added that this, too, "was a business decision" (see at [198] above). He was not asked to elaborate on the details of this event at Curtis Island in 2012. Nonetheless, I am satisfied on the evidence that Mr Smith made a considered business decision to abandon his opposition to membership of the BERT fund on or about 14 August 2012 because he wished to gain access to the "union controlled" sites in Brisbane where the principal contractors had entered into agreements that contained JUCs. 421 It follows that I do not consider that the illegitimate "ban" or "boycott" which Mr Smith claimed had been imposed by the CFMEU in late July 2012 existed in fact. Instead, as became relatively clear in cross-examination, those words and the claims made elsewhere in his oral evidence were self-serving misinterpretations of Mr Close's statements to him at about this time which Mr Smith well knew were directed to the CFMEU's legitimate campaign, which did exist, to enforce the JUCs (see at [185]-[187] above). They were, I consider, born out of Mr Smith's deep frustration and annoyance at the increasingly restrictive effect that the CFMEU's campaign to enforce the JUCs was having on his company's operations. This may be a subtle distinction, but I consider it is of particular significance in this matter in resolving the contextual issues I have mentioned above. 422 Nonetheless, while I consider Mr Smith's claims with respect to the period up to late July or early to mid August 2012 were deliberate misinterpretations, the focus of the CFMEU's dealings with respect to Universal Cranes and the tactics it employed in those dealings, after that period, is a very different issue and one to which I will now turn. 423 Mr Smith concluded his 14 August 2012 email by asking (undoubtedly expecting that there were some) "[i]f there are further changes you require to the agreement to get this issue resolved then please advise exactly which clauses and what you require so we can consider the impact this would have on our workforce and our business" (see at 189 above). From that point on, I consider the central focus of the dealings between the CFMEU and Mr Smith shifted from the threshold issue of BERT fund membership and the related enforcement of JUCs to the terms of the CFMEU model agreement itself. As can be seen from the exchange of emails that followed the 14 August 2012 email, the terms which became particularly contentious included the classification structure for employees, the RDO arrangements and the two hour clause. It is apparent from the emails following 14 August 2012 and other evidence Mr Smith gave that he was endeavouring to obtain concessions from Mr Close and Mr Ravbar with respect to each of these provisions of the model agreement (see at [199]-[200] above). 424 By the time of the 23 August 2012 meeting, the classifications provisions of the CFMEU model agreement had caused Mr Close to refer the negotiations with Mr Smith to Mr Ravbar (see at [211] above). That referral led to that meeting. There are, for present purposes, two pertinent features of Mr Smith's evidence about that meeting. They are: his claim that he was told during that meeting "that it would be the pattern agreement or nothing" (see at [194] above); and his evidence, with which Mr Ravbar agreed, that he was told during that meeting to stop playing games, or words to similar effect (see at [195] and [232] above). 425 From the CFMEU's perspective, Mr Close described the 23 August 2012 meeting as "fairly robust". He also confirmed Mr Smith's evidence that, during the meeting, Mr Ravbar told Mr Smith "the time for games has stopped" (see at [215] above). Furthermore, both Mr Close (see at [215] above) and Mr Ravbar (see at [232] above) said that Mr Ravbar asked Mr Smith to enter into a CFMEU model agreement, but Mr Ravbar said Mr Smith refused to do so. I infer that this was a reference to a CFMEU model agreement containing all of the standard clauses. 426 Contrary to Mr Ravbar's denials, I therefore consider that, by this time, the CFMEU had adopted a "take it or leave it" approach in the negotiations (see at [228] above). Taken by itself, there is, of course, nothing improper with the CFMEU adopting such a stance in its negotiations. Nonetheless, Mr Ravbar's denial of this approach gives me reason to pause when assessing other aspects of his evidence concerning Universal Cranes and the incident that occurred at the Port Connect site in October 2012. 427 For similar reasons, I think it is likely that, at some point during this stage of the negotiations in the period from approximately mid August 2012, Mr Close said to Mr Smith (rather than the opposite) words to the effect that "[w]e've got you on your knees" (see at [185] above). This brings me back to the "ban" or "boycott" issue mentioned above (at [422]). While I am persuaded by the evidence that the CFMEU had no reason to, and did not, impose such a ban on Universal Cranes prior to early to mid August 2012 because at that time Universal Cranes was being independently "captured" or "strangled" by the CFMEU's legitimate campaign to enforce the JUCs (see Mr Close at [205] and [387]-[388] above and Mr Ravbar at [225] above), I am not persuaded that was the position once the shift in the central focus of those dealings occurred from about mid August 2012. That is to say, I have concerns about the earnest attempts that both Mr Close and Mr Ravbar made to cloak those refocused dealings with that earlier legitimacy (see Mr Close at [387]-[388] above and Mr Ravbar at [228] above). I will return to this issue when I come to consider the contraventions related to the third Port Connect incident in October 2012 later in these reasons. 428 All of these matters are emblematic of the tension that I consider pervaded the negotiations after the exchange of emails on 14 August 2012, including the 23 August 2012 meeting and throughout September until at least 25 or 26 October 2012, when Mr Smith said he decided "just to bow over and take the whole pattern agreement" (see at [198] above). Ultimately, Universal Cranes entered into a varied form of the CFMEU model agreement in July 2013 (see at [202] above). 429 Having regard to all these matters, I have come to the following conclusions bearing upon the issues and questions I have outlined above (at [403]-[404]). First, I consider there were effectively two stages to the negotiations between the CFMEU and Universal Cranes in 2012 and that Mr Smith initiated both those stages. The first stage of those negotiations began in early to mid 2012 and concluded at about the time of the 21 June 2012 email. The second stage commenced in early to mid August 2012 and is evidenced, at least in part, by the emails of 14 August 2012 and following. That stage did not conclude until July 2013 when Universal Cranes and the CFMEU eventually entered into a varied form of the CFMEU model agreement. In the interim period between late June and early August 2012, I do not consider the evidence supports a conclusion that any active negotiations were on foot. 430 The end of the first stage of the negotiations and the beginning of the second stage were, I consider, each marked by a "business decision" that Mr Smith made. Those decisions were both directed to Mr Smith's perception of the continuing effects on his business of the CFMEU's campaign, in conjunction with the principal contractors on civil project sites in Brisbane, to enforce the JUCs on those sites. In making the second decision at about the time of his email of 14 August 2012, Mr Smith abandoned his long held opposition to joining the BERT fund and he informed Mr Close that he was willing to agree to an enterprise agreement with the CFMEU which included membership of that fund. 431 While the central focus during the first stage of the negotiations was the threshold issue concerning Mr Smith's refusal to join the BERT fund, once he agreed to membership of that fund, that central focus shifted to particular contentious provisions of the CFMEU model agreement itself and whether Mr Smith would enter into that agreement containing all those provisions, including the classification structure, the RDO arrangements and the two hour clause. In that second stage of the negotiations, Mr Smith wanted the CFMEU to make concessions on some, or all, of those provisions and Mr Ravbar adopted a "take it or leave it" approach. 432 The first stage of the negotiations was, by Mr Smith's description, "amicable". In my view, either this attitude or, at least, a neutral one, prevailed in the interim period mentioned above. Accordingly, that was the state of affairs in mid 2012 until, at the earliest, late July 2012 when the two Legacy Way and the second Port Connect incidents allegedly occurred. In contrast, the second stage of the negotiations was decidedly tense. That was particularly so in the period after the 23 August 2012 meeting when Mr Ravbar had adopted the "take it or leave it" approach mentioned above. That was the atmosphere of the negotiations at the time of the third Port Connect incident in October 2012. 433 Hence, I do not consider Mr Close and/or Mr Ravbar were specifically motivated to enter into a CFMEU model agreement with Universal Cranes such that that motivation was likely to have provided a rationale for their conduct at the time of the three incidents in July 2012. Conversely, I do consider that motivation and rationale were likely to have been present at the time of the third Port Connect incident in October 2012. Finally, the answers to the specific issues identified at [156] above are as follows: (a) the negotiations were "not going well" from approximately mid August 2012, and that was particularly so after the 23 August 2012 meeting; (b) Mr Close and Mr Ravbar became aware in approximately mid to late July 2012 that Mr Smith had caused Universal Cranes to enter into the 2012 EA; and (c) Mr Smith proposed that Universal Cranes would contribute to the BERT fund in early to mid August 2012, but at least until late October 2012 he did not propose to enter into a CFMEU model agreement which contained all of its standard clauses. 434 There is one final contextual issue that requires resolution: what, if any, discussions occurred at organisers' meetings of the CFMEU in 2012 that were specifically directed to Universal Cranes? (See at 154 above). As with the other contextual issues analysed above, the answer to this question is affected by the chronology and the changing central focus of the negotiations that prevailed at particular points in time during 2012. Because of that chronology and changing focus, I consider it is unlikely that, prior to early to mid August 2012, there were discussions at organisers' meetings of the CFMEU that specifically mentioned the stance Universal Cranes had taken in negotiations to enter into a CFMEU model agreement. Whatever discussions occurred in that period were, I consider, most likely to have been generally directed to the CFMEU's campaign to enforce the JUCs with principal contractors and were only likely to have specifically mentioned Universal Cranes in that particular context. 435 However, I consider that changed from approximately early to mid August 2012 when the second stage of the negotiations began. Thereafter, I consider it was increasingly likely that Universal Cranes was the topic of specific discussions at organisers' meetings and those discussions were likely to have been specifically directed to its refusal to enter into a CFMEU model agreement. Furthermore, I consider that likelihood increased after the 23 August 2012 meeting. 436 Without analysing all of the evidence related to this issue above (at [251]-[277]), I consider Mr Close's evidence is more likely to accurately describe the tenor of the discussions that occurred in this period (see at [271]-[272] above). While it was less florid in its terms, I consider Mr Ingham's evidence also provides some support for this conclusion (see at [264] and [398] above). 437 Conversely, I do not accept as accurate Mr Ravbar's evidence on this issue (see at [277] above) and I did not gain much assistance from the evidence of Mr Toyer (at [259] above). Finally, I do not consider the inconsistencies in this body of evidence concerning peripheral matters such as when, or where, organisers' meetings were held, or whether there was a fixed agenda for some, or all, of those meetings, affect these conclusions. 438 I turn now to my analysis of the evidence concerning the four incidents themselves and the contraventions which the Commissioner has alleged occurred during each of them.

The first Legacy Way incident contraventions 439 It is apt to begin my analysis of the first of those incidents, the first Legacy Way incident, by highlighting a number of points, most of which have already been discussed above. First the direction pleaded at [23] of the ASOC which allegedly preceded the first Legacy Way incident (the first Legacy Way direction) is pivotal to each of the three alleged contraventions arising out of this incident. It is specifically identified as such with respect to Mr Close's contraventions of ss 343 and 354 (see ASOC at [30], [32] and [33] set out at [22]-[23] above) and, while it is included among a number of other facts that underpin the contravention of s 340, it is equally as pivotal to that alleged contravention (see ASOC at [28] set out at [21] above). 440 Secondly, the Commissioner bears the onus of establishing, on the balance of probabilities, that the first Legacy Way direction was given by Mr Close and that the first Legacy Way incident occurred substantially as alleged in the ASOC. Thirdly, because both these matters are fundamental to a finding that Mr Close contravened the FW Act in the first Legacy Way incident, they must be established to the standard prescribed by s 140 of the Evidence Act. That is to say, without, among other things, "inexact proofs, indefinite testimony, or indirect inferences" (see at [57] above). 441 Next in this analysis, it is important to note some significant differences between the first Legacy Way incident and the other three incidents at the centre of this proceeding. In the first place, the first Legacy Way direction is not alleged to have been given at a CFMEU organisers' meeting. Instead, it is alleged to have been given in response to a statement Mr Cradden made to Mr Close during a conversation which is alleged to have occurred "[i]n or about mid 2012". Consequently, neither Mr Ravbar nor anyone else is alleged to have been a party to that conversation, or to have witnessed the direction being given. Furthermore, the implementation of the direction did not involve any other organiser. In this respect it is similar to the now abandoned first Port Connect incident (see at [65] of the ASOC at 54 above). Finally, and most importantly, there is no contemporaneous record of the first Legacy Way incident itself. This is to be contrasted with the file notes prepared by Mr Young and Mr Atkinson with respect to the second Legacy Way incident (see at [320] and [305] above, respectively), the entry notice and complaint form prepared during the second Port Connect incident (see at [341] and [342] above) and the report prepared by Mr Zoller concerning the third Port Connect incident (see at [366] above). 442 Accordingly, the only witnesses to the first Legacy Way direction were Mr Cradden and Mr Close. Further, the only witnesses to the incident itself were Mr Cradden and Mr Young, on Mr Cradden's version of the event, or Mr Atkinson and Mr Cradden on Mr Atkinson's version of the event, but not, it should be emphasised, on Mr Cradden's version. Further still, Mr Young's evidence concerning the second Legacy Way incident is either inconsistent with, or contradicts, the evidence of both Mr Cradden and Mr Atkinson in a number of important respects. 443 With these observations in mind, I turn to the evidence of the only two witnesses to the first Legacy Way direction: Mr Cradden and Mr Close. Before detailing Mr Cradden's evidence with respect to that direction, it is appropriate to reiterate the view I expressed earlier in these reasons, that I intended to be particularly cautious before accepting Mr Cradden's evidence with respect to matters such as this, unless his evidence is supported by some other reliable evidence (see at [121] above). This requirement for caution is compounded in this instance because, as will appear below, Mr Cradden's evidence with respect to the first Legacy Way direction barely supports the substance of the allegation as pleaded in the ASOC and is replete with vagueness. 444 First, contrary to the distinct circumstances of the first Legacy Way direction as pleaded in the ASOC and as noted above, the evidence Mr Cradden gave about the discussions preceding the first Legacy Way incident was to the effect that they all occurred at organisers' meetings (see at [284] above). Conversely, he did not give any evidence that he made a statement to Mr Close as pleaded at [22] of the ASOC. In this respect, I reiterate my conclusion above (at [434]) that there were unlikely to have been any such discussions specifically mentioning Universal Cranes at organisers' meetings prior to early to mid August 2012. 445 Secondly, the evidence Mr Cradden gave about there being a direction before the first Legacy Way incident is that summarised at [286] above: "Stop the … crane because he wouldn't sign an EBA". The words "stop the crane" replicate a small part of the first Legacy Way direction as pleaded at [23] of the ASOC and, on a generous construction, could be said to contain the substance of the first Legacy Way direction as described in that paragraph. However, it is to be noted, the words "because he wouldn't sign an EBA" do not appear in the pleaded version of the first Legacy Way direction. Again, I reiterate the subtle but important distinction I have made above (at [431]) that the central focus in this period was the threshold issue of Mr Smith's opposition to BERT fund membership, not whether he was willing to sign a CFMEU model agreement per se. 446 Thirdly, the ambivalence and confusion in Mr Cradden's evidence about who it was that gave the first Legacy Way direction is quite apparent from [286]-[287] above. In short, that evidence demonstrates that Mr Cradden could not recall who it was out of Mr Close and Mr Ravbar. Further, the fact that he proffered a choice between those two men suggests the direction was probably given at an organisers' meeting which serves to reinforce the first inconsistency mentioned above. 447 Before I state my conclusion with respect to Mr Cradden's evidence relating to the first Legacy Way direction, it is worth considering Mr Close's evidence on that issue. His denial that he gave that direction is summarised at [328]-[329] above. A notable aspect of that denial is his repeated claim that he was not the civil coordinator at the time and, therefore, Mr Cradden was not his responsibility. I do not consider this claim is correct. Based on the evidence of Mr Ravbar and Mr Toyer about this question, which I accept (see at [245] above), I find that Mr Close was, in fact, Mr Cradden's civil coordinator from in or about mid 2012. However, while this finding undermines the cogency of Mr Close's denial that he gave the first Legacy Way direction to Mr Cradden, it does not, in my view, dispose of it entirely. Moreover, even if Mr Close's denial were to be rejected entirely (which I do not do), it would not be sufficient to overcome the deficiencies in Mr Cradden's evidence on this issue, as outlined above. 448 For these reasons, I do not consider the Commissioner has met the standard required by s 140 of the Evidence Act necessary to establish that Mr Close gave the first Legacy Way direction to Mr Cradden. Put differently, I consider Mr Cradden's evidence with respect to the first Legacy Way direction falls into the category of "inexact proofs" and "indefinite testimony" mentioned above. Accordingly, because the existence of the first Legacy Way direction is, as noted above, pivotal to establishing each of the contraventions pleaded against Mr Close arising out of the first Legacy Way incident, it necessarily follows that the Commissioner has failed to establish that Mr Close committed any of those contraventions of the FW Act. 449 This conclusion is sufficient to dispose of the contraventions allegedly involved in the first Legacy Way incident, however, for completeness, it is appropriate to indicate that, even if I had accepted Mr Cradden's evidence on the existence of the first Legacy Way direction, I would not have concluded that the first Legacy Way incident occurred as he claimed in his evidence. In other words, I consider the evidence establishes there was only one Legacy Way incident, namely the second incident. My reasons for this conclusion are as follows. 450 This conclusion hinges on the evidence of Mr Young with respect to the second Legacy Way incident on 20 July 2012. I was impressed with the balanced and considered manner in which Mr Young gave that evidence. More importantly, his account of the second Legacy Way incident is generally supported by the file note he made soon after that incident which he said, and I accept, accorded with the usual practice at the time to record such incidents (see at [312] and [320] above). I therefore accept his evidence and, in particular, that file note, as a reasonably accurate account of that incident. 451 Next, it is to be noted that the ASOC describes the first Legacy Way incident as involving a conversation between Mr Cradden and "the site supervisor, Geoff Young" (at ASOC [25] set out at [147] above). As well, consistent with this allegation, in his evidence Mr Cradden described the first Legacy Way incident in essentially the same terms (see at [285] above). This is to be contrasted with his description of the second Legacy Way incident which did not include details such as Universal Cranes' unwillingness to sign an EBA (see at [292] above). Moreover, despite his insistence there were two Legacy Way incidents, Mr Cradden also said he was sure that it was Mr Young to whom he spoke on both occasions (see at [289] above). This is significant because Mr Young's evidence, which I accept, was that there was only one occasion when he recalled Mr Cradden tried to have a Universal Cranes crane removed from the Legacy Way site and that was on 20 July 2012 (see at [319] above). 452 Accordingly, I do not accept, as accurate, Mr Cradden's evidence that there was a similar incident involving Mr Young (namely the first Legacy Way incident) "a few weeks" before the 20 July 2012 incident. I am fortified in this conclusion by the numerous errors Mr Cradden either conceded he had made in his evidence, or which the summary of his evidence set out above, clearly demonstrates he made. 453 Mr Young's evidence is also crucial to the reasons why I do not accept Mr Atkinson's evidence about the first Legacy Way incident having occurred. Mr Atkinson claimed that the first Legacy Way incident occurred two days before the second Legacy Way incident. His description of the first Legacy Way incident on 18 July 2012 is set out at [298]-[301] and his description of the second Legacy Way incident on 20 July 2012 is set out at [302]-[304] above. Curiously, these dates correspond to the date of an entry notice that Mr Cradden agreed in cross-examination he had given relating to a proposed entry to the Legacy Way project site on Friday 20 July 2012 at pre-start (see at [294]-[295] above). 454 First, if the first Legacy Way incident had occurred as Mr Atkinson described it - that Mr Cradden threatened to tie himself to a Universal Cranes crane and that he, Mr Atkinson, responded by threatening to call the police - then, consistent with Mr Young's evidence about the usual practice with respect to such incidents, Mr Atkinson would have been expected to produce a file note relating to that incident. Since Mr Atkinson prepared no file note with respect to the incident as described by him above, but he did prepare one concerning the incident on 20 July 2012, these countering facts support Mr Young's evidence that there was only one incident at the Legacy Way project and that incident occurred on 20 July 2012. 455 Secondly, Mr Cradden did not say in his evidence that he threatened to tie himself to the crane during either incident at the Legacy Way project. If he had, in fact, made a threat of that kind, it is the sort of detail that Mr Cradden would have been unlikely to exclude from his account. It is most unlikely he would have done that for reasons of self-protection because he was already protected by the indemnity from prosecution mentioned above. It is also to be noted, although of less significance, that Mr Atkinson said Mr Cradden did not actually enter the site during the first incident (see [299] above). Accordingly, the opportunity for him to threaten to tie himself to a crane on the site is unlikely to have arisen. For these reasons, I do not accept Mr Atkinson's claim that he remembered the incident he described because of that outlandish threat [see [306] above). I also do not accept Mr Atkinson's claim that he had a good recollection of this incident at the trial, notwithstanding the fact that it occurred approximately five years earlier. That claim contrasts unfavourably with his poor recollection of other similar events in 2012. For example, his claim (see at [306]) that the two Legacy Way incidents were the only disputes with union officials about right of entry to the site during the whole Legacy Way project is inconsistent with the frequency of such disputes recounted by Mr Young (see at [312]). 456 Finally, all witnesses said that it was raining at the time of the incident to which they were referring: Mr Young on 20 July 2012 (see at [319] above) and Mr Cradden and Mr Atkinson during the first Legacy Way incident (see at [285] and [289] and at [299]-[300] above respectively). Since I also accept Mr Young's evidence on this aspect, it would follow that it was raining on 20 July 2012 and that was the incident to which all three men were referring.

The second Legacy Way incident contraventions did not occur 457 As I did with the first Legacy Way incident, I will deal first with the direction which allegedly preceded, and led to, the second Legacy Way incident (the second Legacy Way direction).That direction is pleaded at [37] of the ASOC (see at [25] above). It is alleged to have been given at an organisers' meeting "[i]n or about July 2012" (see [35] of the ASOC at [25] above). 458 The contemporaneous file note prepared by Mr Young establishes that the second Legacy Way incident actually occurred on 20 July 2012 (see at [319]-[320] above). That would fix the date of the organisers meeting at some time shortly before that date. This obviously does not fall within the period from early to mid August at which point I consider the likelihood of Universal Cranes being specifically mentioned at organisers' meetings progressively increased (see at [435] above). 459 As with the direction that allegedly preceded the first Legacy Way incident, the second Legacy Way direction is pivotal to each of the contraventions pleaded against Mr Close (see at [26], [28], [30] and [32] above) and Mr Ravbar (see at [26], [27], [30] and [32] above). For the following reasons, I do not consider the Commissioner has established to the standard required of him by s 140 of the Evidence Act that Mr Close or Mr Ravbar gave the second Legacy Way direction. 460 First, the organisers' meetings at which the second Legacy Way direction was allegedly given were generally described by Mr Cradden in his evidence as having the following features. They included discussions which were specifically directed to Universal Cranes and the particular topic of those discussions was that Universal Cranes did not have an EBA, specifically that "[t]he union wasn't happy because they wouldn't sign the union EBA and wanted … their own EBA" (see at [284] above). This presents two difficulties for the Commissioner's case. The first is that the allegations in the ASOC make no mention of "EBA negotiations" (see at [36] of the ASOC set out at [25] above). The second is that this evidence is inconsistent with the conclusion I have reached above that, prior to early to mid August 2012, it is unlikely that there were discussions at organisers' meetings that specifically mentioned the position Universal Cranes had taken in negotiations to enter into a CFMEU model agreement (see at [434] above). 461 Secondly, while it is alleged in the ASOC that the second Legacy Way direction was given by Mr Ravbar or Mr Close, Mr Cradden's evidence-in-chief was that it was given by Mr Close and Mr Ravbar (see at [290] above). Then in cross-examination he said he could not recall which of the two it was. Finally in re-examination, he confirmed his position as adopted in cross-examination that it was Mr Close or Mr Ravbar (see at [295] above). Since the act of giving the second Legacy Way direction is crucial to a finding that the person who gave it contravened the FW Act, Mr Cradden's ambivalence and vagueness on this point are, in my view, highly significant. 462 Finally, and of equal significance, I do not consider that Mr Cradden's evidence concerning the existence of the second Legacy Way direction is supported by any other reliable evidence. In this respect, I add that, for the reasons I have discussed elsewhere, I do not place much weight on the denials made by Mr Close and Mr Ravbar (see at [328]-[329] and [331]-[332] above respectively). Nonetheless, as I have observed above with respect to the first Legacy Way direction, this conclusion does nothing to rehabilitate Mr Cradden's evidence on this issue. 463 With the exception noted below, this conclusion is sufficient to dispose of the contraventions alleged against Mr Close and Mr Ravbar with respect to the second Legacy Way incident. It does not, however, have that effect in relation to the allegations against Mr Toyer. Those allegations rely upon his participation in the second Legacy Way incident itself as described in [39] of the ASOC (see at [25] above), combined with his knowledge of Universal Cranes' intention to enter into the 2012 EA and not to enter into a CFMEU model agreement. His knowledge of those matters, it is to be emphasised, is a crucial element of each of the contraventions alleged against him (see at [26], [29] and [31] above). I interpose to record that the exception I have mentioned above is that the Commissioner has also relied on s 550 of the FW Act to fix liability on Mr Close and Mr Ravbar for any alleged contraventions committed by Mr Toyer (see at [32] above). 464 In his evidence, Mr Toyer denied any knowledge of the negotiations between Universal Cranes and the CFMEU to enter into a CFMEU model agreement (see at [323] above). For the following reasons I accept that denial. First, it is consistent with the conclusion I have mentioned above (see at [434]-[435]) about the likely and unlikely topics of discussion at organisers' meetings until early to mid August 2012. Secondly, it is consistent with Mr Toyer's role at the time, specifically that he was "learn[ing] the ropes" with Mr Cradden and had no involvement with negotiating the Universal Cranes enterprise agreement (see at [321] and [323] above). Thirdly, this evidence is supported by Mr Cradden's evidence to the effect that Mr Toyer had no involvement in that enterprise agreement negotiation process (see at [291] above). 465 For these reasons, I conclude that the Commissioner has failed to establish the crucial knowledge element of the contraventions he has alleged against Mr Toyer with respect to the second Legacy Way incident. It necessarily follows that the Commissioner has also failed in his case under s 550 of the FW Act against Mr Close and Mr Ravbar. 466 While these conclusions are sufficient to dispose of all the contraventions related to the second Legacy Way incident, for completeness I add the following brief observations about two other aspects of the Commissioner's case with respect to that incident. First, even assuming the direction was given to Mr Cradden and Mr Toyer was possessed of the requisite knowledge, I do not consider the Commissioner has established that Universal Cranes suffered any prejudice for the purposes of s 342 item 7(c), or that it suffered any discrimination for the purposes of s 354. With respect to the former, I do not consider the evidence of Mr Young (at [317] above) or that of Mr Smith (at [280] above) to the effect that the crane was not operating because it was raining, that the crane was being removed from the site the next day and that Universal Cranes was paid for all the work it performed at the Legacy Way project, permits a conclusion that Universal Cranes suffered any real or substantial alteration to its position as a result of that incident (see at [69] above). For the purposes of the latter, I also do not consider that evidence permits a conclusion that Universal Cranes suffered any relevant adversity, adverse distinction, special burden or detriment or disadvantage as a result of that incident (see the discussion at [88]-[90] above).

The second Port Connect incident contraventions did not occur 467 The alleged direction connected with the second Port Connect incident (the second Port Connect direction) is the appropriate starting point for the analysis of this incident as well. That direction was allegedly given by Mr Ravbar in the terms pleaded at [84] of the ASOC (see at [34] above). As with the direction that allegedly preceded the two Legacy Way incidents, the second Port Connect direction is pivotal to each of the contraventions pleaded against Mr Ravbar with respect to that incident (see at [35], [36] and [38] above). 468 The second Port Connect direction is alleged to have been given at an organisers' meeting which occurred in "mid 2012" (see [82] of the ASOC at [34] above). However, the contemporaneous records prepared with respect to the second Port Connect incident provide more precise evidence as to the date of the incident. The entry notice and the complaint form which were prepared in conjunction with that incident fix the date of its occurrence at either 23 July 2012 or 22 July 2012, respectively (see at [341]-[342] above). Since 22 July 2012 was a Sunday, the former date is more likely to be the correct date. 469 While that date is closer to early to mid August than the second Legacy Way incident, it still does not come close to falling within the period after early to mid August, at which point I consider the second stage of the negotiations commenced (see at [429] above). However, this conclusion does not present the same difficulty as arose with respect to the second Legacy Way incident above (see at [458]). That is so because neither the allegations in the ASOC concerning the second Port Connect direction, nor Mr Cradden's evidence on that subject, refers to the negotiations between Universal Cranes and the CFMEU to enter into a CFMEU model agreement being discussed at an organisers' meeting at or about the time of the incident. Instead, both claim that Mr Ravbar simply told Mr Cradden to stop the Universal Cranes crane (see at [83]-[84] of the ASOC set out at [34] above and Mr Cradden's evidence at 335] above). 470 Nonetheless, the following important inconsistency does arise between the allegations in the ASOC and Mr Cradden's evidence concerning the second Port Connect direction. In the ASOC, as is already noted above, the second Port Connect direction is alleged to have been given at an organisers' meeting. However, in Mr Cradden's evidence-in-chief, he claimed that direction was given during a telephone call he had with Mr Ravbar (see at [335] above). This matter led to his vacillation on this topic in cross-examination and re-examination as outlined above (see at [336]-[337]). 471 This matter may not have been particularly significant if it were not for the evidence of both Mr Toyer and Mr Zoller about the telephone call in question. Mr Zoller agreed in cross-examination that Mr Cradden told him during the visit to the Port Connect site constituting the second Port Connect incident that the reason for that visit was because he had received a call from a member at the site who had made a complaint about safety (see at [352] above). Mr Toyer gave similar evidence. He said that prior to their visit to the Port Connect site on that occasion, Mr Cradden told him that he had received "a phone call in regards to a safety issue at the site …" (see at [370] above). 472 Furthermore, the source of this telephone call and the purpose of the visit to the Port Connect site on that occasion is supported by the entry notice that was provided at the time of that visit. The purpose of the visit was stated in that notice to be: "Section 117 - To inquire into a suspected contravention of the WHS Act that relates to or affects a relevant worker" (see at [341] above). 473 It follows that, not only is Mr Cradden's evidence on the second Port Connect direction not supported by other reliable evidence, it is directly contradicted by a contemporaneous record and by two witnesses, one of whom may be regarded as independent in the sense that he (Mr Zoller) is not a respondent in these proceedings. For these reasons, I do not consider the Commissioner has established, to the requisite standard, that Mr Ravbar gave the second Port Connect direction as alleged in the ASOC. 474 Since the second Port Connect direction is pivotal to the contraventions alleged against Mr Ravbar with respect to the second Legacy Way incident, this conclusion is sufficient to dispose of the contraventions alleged against him with respect to that incident. However, it does not dispose of the allegation against Mr Toyer, nor the Commissioner's attempt to fix liability for Mr Toyer's alleged contraventions on Mr Ravbar under s 550 of the FW Act. 475 That is so because, as with the second Legacy Way incident, the allegations against Mr Toyer rely upon his participation in the second Port Connect incident itself as described in [85]-[90] of the ASOC (see at [34] above), combined with his knowledge of Universal Cranes' intention to enter into the 2012 EA and not to enter into a CFMEU model agreement. In this respect it is to be noted that his relevant knowledge is pleaded in identical terms to the two Legacy Way incidents (see at [157] above). Also as with the second Legacy Way incident, his knowledge of these matters is a crucial element of each of the contraventions alleged against him (see at [35], [37] and [39] above). 476 Since I have already concluded above (see at [465]) that Mr Toyer did not possess that knowledge at the time of the second Legacy Way incident and since only three days elapsed between those two incidents, it necessarily follows that I consider the Commissioner has failed to establish that crucial element of each of the contraventions. It also necessarily follows that the Commissioner has failed to fix liability on Mr Ravbar under s 550 of the FW Act. 477 While these conclusions are sufficient to dispose of all the contraventions related to the second Port Connect incident, for completeness I add the following brief observations about two other aspects of the Commissioner's case with respect to that incident. Even assuming the second Port Connect direction was given and Mr Toyer was possessed of the requisite knowledge, I do not consider the Commissioner has established that Mr Toyer's actions had the effect of prejudicing Universal Cranes for the purposes of s 342 item 7(c), or discriminating against it for the purposes of s 354. 478 My reasons for these conclusions are different to those concerning the second Legacy Way incident above. In the first place, the evidence of Mr Zoller establishes that the Universal Cranes crane in question remained on site and recommenced work after Mr Toyer had completed his safety audit (see at [358] above). This is consistent with Mr Toyer's evidence that the purpose of the complaint form was in order that the principal contractor, namely Brady Civil and Marine, may "rectify the [safety] issues in a timely manner" (see at [377] above). 479 I do not therefore consider that the Commissioner has established that Universal Cranes suffered any real and substantial alteration to its position as a result of Mr Toyer's actions during the second Port Connect incident (see at [69] above). Nor do I consider that the Commissioner has established that Universal Cranes was discriminated against as a result of Mr Toyer's actions on that occasion as discussed at [88]-[90] above. That is so because I consider the evidence shows that there was a genuine safety-related reason for the visit to the Port Connect site and that, while he was there, Mr Toyer conducted a legitimate safety audit that neither targeted Universal Cranes as an entity, nor its crane. 480 On this issue, I consider Mr Toyer's oral evidence (see at [370] and [380] above) is supported by the two contemporaneous records in the form of the entry notice and the complaint form (see at [341] and [342] above, respectively). The former shows that the purpose of the visit was to inquire into a safety-related issue connected with five items, only one of which (the last) related to "cranes". The latter listed 13 items, two of which related to "cranes". Furthermore, despite Mr Zoller's initial evidence to the contrary (see at [355] above), he later accepted that the complaint form raised a number of genuine safety issues (see at [357] above) and qualified his view about the necessity for a crane of the kind in question to have a wind meter installed (see at [358] above). On this aspect, I accept as reliable Mr Toyer's evidence about that necessity (see at [375]-[376] above) and reject, as ill-informed, Mr Smith's evidence to the contrary (see at [401] above). I should add that Mr Toyer clarified that there was only one crane present and the references to "cranes" above were errors (see at [379] above).

The third Port Connect incident contraventions did occur 481 At the outset, it is worth noting that Mr Zoller's report with respect to the third Port Connect incident fixes the date of this incident as 16 October 2012 (see at [366] above). 482 As with the other three incidents, it is convenient to begin with the direction that was allegedly given prior to this fourth incident (the third Port Connect direction). As with all the other alleged directions, the third Port Connect direction is pivotal to each of the contraventions alleged against Mr Ravbar with respect to this incident (see at [43], [44] and [46] above). That direction was allegedly given by Mr Ravbar in the circumstances and terms pleaded at [134]-[136] of the ASOC (see at [42] above). Since those details are important to the resolution of this issue, it is appropriate to repeat those paragraphs of the ASOC at this juncture: 134. In or about October 2012, Universal Cranes was discussed as an agenda item at an Organisers' Meeting attended by Mr Cradden, Mr Sutherland, Mr Ravbar and Mr Close. 135. Mr Ravbar told the Organisers' Meeting words to the effect that the CFMEU was not getting any traction with Universal Cranes. 136. Mr Ravbar directed organisers present at the Organisers' Meeting to undertake a coordinated operation to disrupt multiple Universal Cranes cranes by saying words to the effect: (a) go to the Universal Cranes yard, park around the corner from the yard, follow the cranes as they leave and then stop the cranes from operating once the cranes arrive at their destination; (b) "follow the cranes and stop them from working". 483 Since Mr Cradden's description of the circumstances in which the third Port Connect direction was given and the terms of that direction was brief, it is also convenient to repeat it at this juncture: "We were told in an organisers' meeting to be at Universe's yard the next morning … We just have a lot of organisers and follow the cranes to see where they go … When they get to where they're going to stop them" (see at [345] above). This description of the third Port Connect direction broadly corresponds with the allegations in the ASOC above in that Mr Cradden claimed that the direction was given at an organisers' meeting in October and that the gist of the direction was to follow the cranes leaving the Universal Cranes' yard and stop them from operating. Furthermore, Mr Cradden was insistent in his evidence that the direction had been given by Mr Ravbar (see at [345] above). The latter is important because it avoids the difficulties presented by the ambivalence and vagueness that pervaded Mr Cradden's evidence concerning the other three incidents, particularly the two Legacy Way incidents (see at [443] and [461] above). 484 The circumstances in which the third Port Connect direction was given are important for a number of reasons. First, because they are consistent with the conclusions I have reached above (at [435]), that, at organisers' meetings in October 2012, Universal Cranes was likely to have been the topic of specific discussions that were specifically directed to Universal Cranes' refusal to enter into a CFMEU model agreement. 485 As well as the specific focus of those discussions, it is important to note their tone as reflected in the following passages from Mr Close's cross-examination (also set out above at [272]): Universal was, yes, because many other crane companies were standing back looking at - yes, he is not a liked man, I'm telling you. I'm sorry?---He's not a liked man. Who is this?---He might be the president of the Mobile Hirers Association, but he's - - - Yes?--- - - - not a liked man. Yes?---So organisers would ask, "How are you going with Universal". You said that many other crane companies were standing back. What do you mean by that?---"How are you going with Albert?" … You know … Thought it was a joke. … What, were they standing back to see what happened with the negotiations with Albert?---No, not - - - sorry, probably a bad choice of words. Asking the organisers, "How are you going with that idiot? How are you going with that dickhead"… Is the sort of stuff that would be asked. So the guys would ask at the meeting, "How are you going with Albert?" "No good. He has still got his ideology. He is not interested in our stuff". 486 In my view, these passages show that, by October 2012, the CFMEU had become frustrated with, what it regarded as, Mr Smith's intransigence in not accepting the contentious provisions of the CFMEU model agreement mentioned above. Evidence of that frustration also emerged elsewhere in Mr Close's evidence where he specifically mentioned the classification structure issue (see at [386]-[387] above). While Mr Close sought to associate these comments with the enforcement of the JUCs, I consider the particular subject matter, namely the classification structure, indicates that he was actually talking about the second stage of the negotiations when the central focus had shifted to the terms of the CFMEU model agreement, one of which was the classification structure. 487 Another reason for the importance of the circumstances in which Mr Cradden said the third Port Connect direction was given is the support it gains from a small, but significant, part of Mr Toyer's evidence. When asked why he attended at the café near Universal Cranes' yard on the morning of the third Port Connect incident, Mr Toyer said he did that because he was told by Mr Cradden "at the meeting" (see at [381] above). Because the questions which preceded this question were directed to the organisers' meeting in October 2012, I infer that the words "the meeting" was a reference to the same organisers' meeting to which Mr Cradden referred. 488 The terms of the third Port Connect direction are also important for a number of reasons. First, they are broadly consistent with the terms of the request that Mr Toyer said was made of him by Mr Cradden "at the meeting" as mentioned immediately above, namely to follow the cranes (see at [381]-[382] above). Secondly, by its terms, the third Port Connect direction was specifically directed to Universal Cranes. That is important because that kind of specific direction, or targeting, implies that the object of the third Port Connect incident was Universal Cranes itself, rather than a particular project site. In this respect, it is to be noted that the three incidents in July were site-specific. 489 The next matter of importance to be noted is the high degree of coordination that was likely to be required to carry out the third Port Connect incident itself. First, the contemporaneous record in the form of Mr Zoller's report records that five CFMEU officials, including Mr Cradden, were present at the Port Connect site during the third Port Connect incident and that the incident began at approximately 6.30 am (see at [366]). Secondly, Mr Toyer's evidence, which I accept, was that he did not go to the Port Connect site on the day of the incident, but instead he followed a Universal Cranes crane to Ipswich (see at [383] above). Given that five CFMEU officials were later present at the Port Connect site, it necessarily follows that six CFMEU officials must have gathered in the vicinity of Universal Cranes' yard that morning. Thirdly, Mr Toyer gave evidence that, immediately prior to the incident, the organisers involved, including Mr Sutherland, gathered at a cafe in the vicinity of Universal Cranes' yard (see at [381]-[382] above). Mr Cradden said they gathered outside Universal Cranes' yard (see at [347] above). The coordination required to achieve this gathering of CFMEU officials at that particular location, so early in the morning, plainly leaves it open to be inferred that someone in authority at the CFMEU must have been involved. 490 This brings me to the explanation advanced by the CFMEU for this relatively large gathering of its officials outside Universal Cranes' yard on the early morning of 16 October 2012. It claimed that Mr Cradden, not Mr Ravbar, was the person responsible for coordinating this gathering. It claimed he did this because he was concerned that he had not met his responsibility to enforce the JUCs at the Port Connect site, it being one of the sites for which he was responsible. Indeed, in his evidence, Mr Close suggested that this gathering of organisers was something that Mr Cradden might have organised "with his mates" (see at [391]). In support of this contention, the CFMEU pointed to the first Port Connect incident in July 2012 where Mr Cradden had admitted in his evidence that he had acted on his own initiative (see at [54]-[55] above). It also pointed to the fact that all four of the incidents at the centre of this proceeding involved sites for which Mr Cradden was responsible. 491 Because I do not consider this explanation withstands close analysis, I do not accept it. In the first place, while Mr Cradden may have acted on his own initiative during the first Port Connect incident in July 2012, I do not accept that he had the personal incentive or authority to recruit five other organisers to carry out the activities that constituted the third Port Connect incident in October 2012. The reason why the incentive was not present has already been alluded to above. It is that the activities on this day were not directed to a specific project site, but rather to Universal Cranes' yard and to following its cranes to whichever work sites they happened to travel. Mr Toyer's fruitless journey to Ipswich underscores this factor. Furthermore, while organisers such as Mr Cradden were responsible for the enforcement of the JUCs on the sites for which they were responsible, as I have explained above, by October 2012, enforcement of JUCs was not the central focus in the dealings between the CFMEU and Universal Cranes. Instead, that central focus was the contentious provisions of the CFMEU model agreement mentioned above and the persons responsible for that issue were Mr Close and Mr Ravbar, not Mr Cradden. On this aspect, I should add that I consider Mr Zoller was likely to have confused his discussions with Mr Cradden in the lead up to the third Port Connect incident with those that occurred in the lead up to the second Port Connect incident (see at [352] above). That is to say that I consider those discussions were more likely to have occurred in July 2012 and were more likely to have been directed to the enforcement of the JUCs. As for Mr Cradden's lack of authority, that is demonstrated by Mr Toyer's evidence (which I accept) that one organiser did not have the authority to give a binding direction to another (see at [247] above). 492 In addition to the explanation outlined above, the CFMEU also relied upon Mr Ravbar's denial that he gave the third Port Connect direction and upon the evidence of Messrs Toyer, Ingham and Close that they had not heard him give such a direction at the organisers' meeting in October 2012. 493 I will commence with the latter evidence. First, Mr Toyer did say in his evidence that he did not recall the third Port Connect direction being given and that if it had been given he thought he would have recalled it (see at [369] above). However, he also claimed that he did not hear Universal Cranes discussed at an organisers' meeting in October 2012 (see at [369] above). Since I have concluded above that such discussions were likely to have occurred at organisers' meetings at that time, I infer that, through distraction, absence from the meeting room or for some other similar reason, Mr Toyer must have missed hearing those discussions. If he missed hearing those discussions, I infer he could also have missed hearing the third Port Connect direction if it was given at that organisers' meeting. I do not therefore put much weight on Mr Toyer's evidence on this aspect. 494 Mr Ingham also said that he did not remember such a direction being given at the October organisers' meeting and, if it was given, he said he was not there (see at [399] above). For his part, while he agreed that Universal Cranes may have been discussed at the organisers' meeting in October, Mr Close denied hearing Mr Ravbar give any such direction at that meeting (see at [390] above). This evidence obviously does not exclude the possibility that the direction was given and Mr Ingham and Mr Close were not in the room, or, if they were, they did not hear it. Accordingly, as with Mr Toyer's evidence, I do not put much weight on their evidence on this aspect. 495 Turning then to Mr Ravbar's denial, as it was given in his examination-in-chief, the terms of that denial are set out above (see at [395]). With respect to that denial, it is significant, in my view, that Mr Ravbar did not disclaim the possibility that "instructions" were given at the organisers' meeting in question. Instead, he claimed that such instructions were not his responsibility and were instead the responsibility of the "senior officers". In cross-examination, Mr Ravbar made a number of related denials, as follows, which, together with the inaccurate parts of his evidence discussed above, have led me to conclude that I should place little if any weight on his denial with respect to the third Port Connect direction. First, in cross-examination, Mr Ravbar expressly denied that Universal Cranes' refusal to sign a CFMEU model agreement was ever discussed at an organisers' meeting in 2012 (see at [277] above). This denial is inconsistent with the conclusion I have reached above (see [434]-[435]) about the likelihood of Universal Cranes being discussed at organisers' meetings in 2012, specifically from about mid August, and it is also contradicted by the evidence of Mr Close (see at [272] above). Secondly, Mr Ravbar gave the following answers about the CFMEU's wish to have Universal Cranes enter into a CFMEU model agreement: You knew that, by the middle of 2012, there had been no success in having Universal Cranes sign up to a union agreement, didn't you?---I knew that we hadn't reached an outcome with Albert, but we hadn't reached an outcome in regards to the compliance problems either. And I suggest that that was a matter - that company not signing up was a matter that you yourself were not happy about?---Didn't really care, to be frank. 496 Since this answer refers to both the JUC enforcement, or compliance, issue and having Universal Cranes enter into a CFMEU model agreement, I consider it is inconsistent with the conclusion I have reached above about the CFMEU's true motivations with respect to the latter issue (see at [433] above). 497 Thirdly, Mr Ravbar gave the following evidence about the state of the negotiations with Universal Cranes to have it enter into a CFMEU model agreement as at October 2012: By the time that one gets to October of 2012, you were aware that Universal Cranes had still not entered into a union agreement?---As I said earlier, I don't recall where the status was for the rest of 2012. And this was the case notwithstanding that you yourself had met with him and tried to persuade him?---I met with Albert as a - I keep repeating - is that to talk about relationships, the industry problem about non-compliance. Yes, great if he down the track signed an agreement, but if he didn't comply with industry standards now, then we're never going to get an agreement. 498 For the reasons I have outlined at length in the discussions above, I do not accept as accurate Mr Ravbar's claim to have no knowledge of the status of those negotiations "for the rest of 2012". 499 Having regard to all these unsatisfactory aspects of Mr Ravbar's evidence, I do not put any weight on his denial of the third Port Connect direction (see at [395] above). 500 For these reasons, I do not accept the CFMEU's explanation for the presence of the relatively large group of its officials prior to and during the third Port Connect incident. As well, I do not place much weight on the evidence of Messrs Toyer, Close and Ingham with respect to them not hearing the third Port Connect direction and I place no weight on the denial of Mr Ravbar. Accordingly, notwithstanding the fact that the Commissioner bears the onus on this issue and notwithstanding the effect of s 140 of the Evidence Act, and having regard to all the matters discussed above, including the circumstances in which the third Port Connect direction was given, the terms of that direction, the gathering of CFMEU's officials outside Universal Cranes' yard on the morning of 16 October 2012, the absence of any incentive for Mr Cradden to organise that gathering, and the lack of authority for him to do so, I am reasonably satisfied that there is a greater degree of likelihood (see the discussion at [57] and [60] above) that Mr Ravbar gave the third Port Connect direction essentially in the terms described by Mr Cradden. I have reached this conclusion notwithstanding the concerns I have expressed earlier in these reasons about Mr Cradden's evidence with respect to the other three incidents. In other words, I consider Mr Cradden's evidence with respect to this incident is sufficiently supported by the combined weight of all the factors above to be accepted as accurate. 501 Having dealt with the third Port Connect direction, next, it is necessary to consider Mr Sutherland's role in the third Port Connect incident itself. The details of his role are pleaded at [137] to [149] of the ASOC above (see at [42] above). As the CFMEU pointed out in its submissions, the contraventions alleged against Mr Sutherland rely upon him being a principal offender. Accordingly, they claimed, correctly in my view, that the Commissioner must prove that Mr Sutherland took the actions which constituted the contraventions alleged against him. As developed in closing submissions, the issue of fact with respect to Mr Sutherland's role in the third Port Connect incident was reduced to a narrow one. It is whether there is any evidence that Mr Sutherland took any action to block the movement of the Universal Cranes franna crane at the Port Connect site during that incident. 502 Since Mr Sutherland did not give any evidence and Mr Toyer was not present during the third Port Connect incident, the only evidence as to what occurred during the third Port Connect incident came from Mr Cradden and Mr Zoller. The following are the important parts of their evidence bearing on Mr Sutherland's role. 503 First, Mr Cradden's evidence as to his discussions with Mr Sutherland immediately before arriving at the Port Connect site was as follows: Okay. Now, when you were - you mentioned that Mr Sutherland parked his car next to yours, did you have any discussion with him whilst you were following the crane?---Yes. And how did that - what means did you use for that discussion?---We were talking over the phones. Right. And what was the effect of that discussion?---I just said, "I think this one's heading to Port Connect." Right?---"Let's follow it. I think that's where it's going." And did he make any response?---He just said, "Let's keep following it." Okay. Now, you've told the court that you parked behind it and you've told the court why. Did anyone come and speak to you after you had parked in that location?---Yes. And who was that?---Jason Zoller. 504 Next, Mr Cradden's evidence as to what happened when the Universal Cranes franna crane stopped at the Port Connect site was as follows: And can you recall where at the Port Connect job it stopped?---Yes. There was a sliproad coming in after I made my way on to the project. Right. And sliproad off what?---Off the Gateway Motorway on to the Port Connect project. And - and when you observed the franna crane to stop at that location, did you do anything?---Yes. I parked behind it. You - I beg your pardon?---I parked behind it. Right. And why did you park behind it?---So it couldn't move. Right. And did anyone else park nearby?---Andrew Sutherland parked beside me. Right. Okay. Where was his car in relation to the crane?---Well, mine was directly behind it. Yes?---And I think it was to the left of my vehicle. From where you had parked your car, was the crane able to move past your car?---No. 505 Then, Mr Zoller's evidence as to what he observed when he arrived at gate 11 where the Universal Cranes franna crane was located was as follows: And when you got to gate 11, what - did you observe anything there?---Well, straightaway I noticed there was a - a number of vehicles parked in the - in the entryway at the end of the gate. Yes. Yes. And those vehicles, were they vehicles that belonged to the site?---No, no, they weren't. And did you know or come to understand whose vehicles they were?---Yes, yes. And whose vehicles were they?---They were - they belonged to the CFMEU organisers, yes. Now, you mentioned - when you were there and observing these vehicles, was there a Universal crane or cranes present?---Yes, there was. And where was it located in respect to the vehicles that you've referred to, the CFMEU vehicles?---Yes, so the - the gate - the gate work area itself was quite short. It would have been a few hundred metres long. The - the union officials were parked in the gate entry, and the - and the - and the crane itself was at the worksite, you know, probably, you know, 30 metres in front of the - the vehicles, yes. Yes. And as a result of the - where the CFMEU vehicles were parked, was - were any other vehicles or plant able to get in or out from that gate?---You would have been able to get out of the gate if you got past the crane and the CFMEU vehicles. But the - the vehicle entry, being a median motorway, was probably, you know, four or five metres wide. So once they were parked in the gate, you - you couldn't get back into the gate. Yes. 506 Finally, Mr Zoller's evidence about the discussions he had with another CFMEU official on the site was as follows: Now, when you were having this discussion with Mr Cradden that you've just told the court about, was there anybody else from the CFMEU there as part of that discussion?---Yes, there was - there was other - other people there. Yes, yes. And do you know their names?---Not - not all of them. I know - I knew Steve Toyer reasonably well. He was definitely there. And there was another guy with a beard. I can't recall his name. So there was Mr Toyer?---Yes. And did you say there was somebody else there?---Yes, yes. And you mentioned a beard. Who had the beard?---I can't recall the guy's name, to be honest, no. Was the bearded person Mr Toyer or somebody else?---Somebody else, yes. Right. Okay. You've said that Mr Cradden said they were there to stop the crane from working. Did either of the CFMEU people say anything to you at that point?---Can you repeat that, sorry? Did either of the other CFMEU people who were there say anything to you at that point?---Yes, yes, Steve Toyer did. Steve Toyer spoke to me. And what did he say?---He was a bit more vocal with the whole thing. Basically, he told me to - you know, this crane wasn't going to work, "you had better sign it off and get it off the job. We don't want them - we don't want them working here any more." Did any of the CFMEU people who were there tell you how it was they came to be there?---Not - not in that conversation, no, no. 507 In addition to this oral evidence, there is the report Mr Zoller prepared soon after the third Port Connect incident (see at [366] above). 508 The CFMEU submitted that this evidence did not establish that Mr Sutherland took any action to block the movement of the Universal Cranes franna crane at the Port Connect site. In response, the Commissioner submitted that Mr Cradden's evidence demonstrated that both he and Mr Sutherland had followed the Universal Cranes franna crane to the Port Connect site and they had discussions by telephone along the way. Further, when they arrived at the site, Mr Cradden parked his vehicle behind the Universal Cranes crane and Mr Sutherland parked his vehicle beside Mr Cradden's vehicle. The Commissioner submitted that it was significant that Mr Sutherland "didn't go and park around the corner". Thus, he submitted, there was an adequate basis for inferring that both Mr Cradden and Mr Sutherland were involved in blocking the Universal Cranes crane. Finally, while the Commissioner accepted that Mr Zoller was clearly incorrect about Mr Toyer being at the site, (and I interpose to note that I have already found at [489] above that Mr Toyer was not present for the third Port Connect incident), he submitted it should be inferred that Mr Zoller had mistaken Mr Sutherland for Mr Toyer. On that basis, he submitted, that on Mr Zoller's evidence it was Mr Sutherland who was being "vocal" about stopping the Universal Cranes crane thus providing further evidence for his involvement in blocking the Universal Cranes crane. 509 I do not consider the second inference is open. Mr Zoller said there was at least one other CFMEU official present at gate 11 at the time of the incident, apart from the person who he mistook for Mr Toyer. I do not therefore consider there is any basis, on the evidence set out above, upon which I could distinguish between those people. However, bearing in mind the onus and s 140 considerations mentioned above, I do consider the first inference is reasonably open. Whether Mr Sutherland parked his vehicle immediately behind the franna crane, as Mr Cradden did, or beside Mr Cradden's vehicle, it is reasonably open to be inferred from their conduct leading up to the incident and the fact that Mr Sutherland parked his vehicle on the site itself, that he was directly involved in blocking the Universal Cranes crane. Furthermore, the second paragraph of Mr Zoller's report supports the conclusion that the two CFMEU vehicles present at gate 11 were blocking the crane's access (see at [366] above). Finally, I consider this inference is more readily to be drawn where Mr Sutherland, a respondent party in this proceeding, has failed to give evidence and explain his role during this incident (see the discussion at [59] above).

CONCLUSIONS 510 Having regard to these findings of fact with respect to the third Port Connect direction, concerning Mr Ravbar and Mr Sutherland's involvement in the third Port Connect incident itself, I turn now to consider the elements of each of the contraventions alleged against the two of them with respect to the third Port Connect incident. 511 While the third Port Connect direction is pivotal to the contraventions alleged against Mr Ravbar, there remains a number of other elements of those contraventions which the Commissioner must prove before each of those contraventions is established. Dealing first with the contravention of s 340, I have reached the following conclusions: (a) having found that Mr Ravbar gave the third Port Connect direction, s 361 places the onus on him to establish that he did not give that direction for any of the proscribed reasons pleaded at [150] of the ASOC (see at [43] above and the discussion at [97]-[102] above). For the reasons I have given above, I do not consider Mr Ravbar has discharged that onus; (b) similarly, having found that Mr Sutherland took the actions he did during the third Port Connect incident, s 361 places the onus on him to establish that he did not take that action for any of the proscribed reasons pleaded in [150] of the ASOC (see at [43] above). Since Mr Sutherland elected not to give any evidence, he has obviously failed to discharge that onus; and (c) on the issue of prejudice pleaded at [151] and [152] of the ASOC (see at [43] above), based on the evidence of Mr Zoller summarised at [365] above, I am satisfied that Universal Cranes suffered a real and substantial alteration to its position as a result of the third Port Connect incident for the purposes of s 342 item 7(c). 512 I am therefore satisfied that both of Mr Ravbar and Mr Sutherland contravened s 340 of the FW Act. 513 Next, for the purposes of the contraventions of s 343, I have reached the following conclusions: (a) the actions of both Mr Ravbar, in giving the third Port Connect direction, and Mr Sutherland, in blocking the Universal Cranes crane during the third Port Connect incident, were taken against Universal Cranes; (b) the reasoning set out in 511 and (b) above applies equally to the reasons and intention pleaded at 156 and 158 of the ASOC (see at [44]-[45] above); (c) Mr Sutherland had no legitimate entitlement to enter the Port Connect site on 16 October 2012 and he certainly had no legitimate entitlement to block the use of the Universal Cranes franna crane on that site on that day. For his part, Mr Ravbar had no legitimate entitlement to direct Mr Sutherland to take that action. The conduct of both of them was, therefore, illegitimate; and (d) since the matters pleaded at 156(i) and (ii) and 158(i) and (ii) of the ASOC are put as alternatives (see at [79] above) and, as indicated in (c) above, I am satisfied that the second alternative has been established, it is unnecessary to determine the issue raised at [80]-[82] above. 514 I am therefore satisfied that both of Mr Ravbar and Mr Sutherland contravened s 343 of the FW Act. 515 Finally, for the purposes of the contraventions of s 354, I have reached the following conclusions: (a) the reasoning set out in 511 and (b) above applies equally to the reasons pleaded in 160(a) and (b) and 163(a) and (b) of the ASOC (see [46] and [47] above); and (b) on the discrimination issue, based on the evidence of Mr Zoller summarised at [365] above, I am satisfied that Universal Cranes suffered the kind of adversity, adverse distinction, special burden and detriment discussed at [88]-[90] above. 516 I am therefore satisfied that both of Mr Ravbar and Mr Sutherland contravened s 354 of the FW Act. 517 Having found Mr Ravbar liable as a principal contravenor, I do not presently see any purpose in also determining his liability, if any, under s 550 of the FW Act. However, I will reserve to the Commissioner the right to further agitate this issue should he so wish to. 518 There remains the question of the CFMEU's liability under ss 363 and 793. For the purposes of those provisions, I have reached the following conclusions: (a) the actions of Mr Ravbar and Mr Sutherland constituting the contraventions as described above were engaged in on behalf of the CFMEU because each of them took the action they did in their capacity as an official and/or organiser and, therefore, as an employee of the CFMEU; (b) in giving the third Port Connect direction, Mr Ravbar was acting within the scope of his actual or apparent authority in that he had the capacity to direct the conduct of organisers of the CFMEU; and (c) in engaging in the conduct of blocking the Universal Cranes crane, Mr Sutherland was engaging in conduct within the scope of his actual authority because he was acting on Mr Ravbar's direction. 519 I am therefore satisfied that the CFMEU is liable pursuant to s 793 of the FW Act for the conduct of, and contraventions by, each of Mr Ravbar and Mr Sutherland described above. Having reached this conclusion, it is unnecessary to consider the alternative basis for liability of the CFMEU under s 363 of the FW Act (see at [171] of the ASOC set out at [51] above). 520 I will hear further from the parties as to the appropriate form of orders to be made consistent with these reasons and on the appropriate penalties to be imposed on Mr Ravbar, Mr Sutherland and the CFMEU. I certify that the preceding five hundred and twenty (520) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

SCHEDULE OF PARTIES QUD 881 of 2016 Respondents Fourth Respondent: STEVE TOYER Fifth Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION