Australian Building & Construction Commissioner v Abbott [2011] FCA 950 | Case summary

Australian Building & Construction Commissioner v Abbott [2011] FCA 950 | Case summary | Zoe

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TABLE OF CONTENTS AND PERSONNEL The Application [1] People in the case [4] Background [6] The Legislation [13] The BCII Act [13] The Workplace Relations Act [16] Standard of proof [27] The redundancy issue [32] Knowledge of redundancy issue pre-1 October 2008 [35] CBI employees meeting - 1 October 2008 [46] Meeting with CBI officers - 1 October 2008 [47] 1 - 13 October 2008 [59] Upton and CFMEU [60] Windus and the AMWU [62] CBI employees meeting - 13 October 2008 [68] Upton [69] Brown [76] Johnson [77] Meeting with CBI officers 13 October 2008 [79] The pleading [99] Windus' knowledge - 13 October 2008 [102] Application to admit rebuttal evidence [111] Meeting of CBI employees - 14 October 2008 [116] The pleading [117] AIRC hearing and orders [121] Evening of 14 October 2008 [123] Return to work on 15 October 2008 [135] The pleading [140] Letter of 16 October 2008 [141] Morning of 17 October 2008 [144] The pleading [151] 20 October 2008 [152] 22 October 2008 [153] 24 October 2008 [158] Role of Upton, Brown, Johnson and Windus [163] Upton [163] Brown [164] Johnson [174] Windus [175] Accessorial liability [179] Conduct of the employees [180] Section 48 of the BCII Act [181] Section 728 WR Act [195] Section 69 of the BCII Act [196] Section 826(2) of the WR Act [217] Section 826(2)(a) [218] Actual or apparent authority [219] Conduct "on behalf of" an organisation [222] Section 826(2)(b) of the WR Act [223] Alleged breaches and pleading [227] Unlawful industrial action: s 38 BCII Act [228] Windus and the AMWU [230] Johnson and the AMWU [232] Holdsworth and the AMWU [234] Upton and CFMEU [236] Brown and CFMEU [238] Industrial action before nominal expiry of agreement: s 494 WR Act [239] Breach of issue resolution procedure and s 719 of WR Act [244] Breach of Order of AIRC - s 496(10) WR Act [257] Upton and CFMEU [260] Windus and AMWU [262] Conclusions [266]

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People in the case 4 The Commissioner seeks relief against the individual respondents who were CBI employees and who engaged in unlawful industrial action. They are referred to in the Statement of Claim (SOC) as "Employee Respondents". I too will refer to them in that way in these reasons. He also seeks relief against the Construction, Forestry, Mining and Energy Union (CFMEU) and the Australian Manufacturing Workers Union (AMWU) and their delegates and representatives. Apart from the Employee Respondents, other than Brown and Johnson, the following is a list of persons who in one way or another had a role to play in the events which have given rise to this proceeding. I will refer to them by their surname in these reasons. (1) Brown - Robert: 25th respondent, building employee and industry participant, CBI employees representative (2) Clarke - Tony: Site Industrial Relations Manager of FWW (3) Duffy - Andrew: President AMWU WA Branch (4) Guyer - John: CBI Construction Manager (5) Holdsworth - Andrew Cecil: AMWU Organiser (6) Johnson - Mark Anthony: 106th respondent and AMWU delegate (7) Luskan - Kelly Joyce: CBI Administration Manager (8) Macaree - Stuart Kenneth: CBI Employee and Industrial Relations Manager (9) Marcano - Jose: CBI Project Manager (10) McCartney - Steven James: WA State Secretary of AMWU (11) Pooley - Alice: Journalist (12) Starling - Andrew Colin: CBI Senior Superintendent (13) Stuurstraat - Peter: CBI Construction Manager (14) Upton - Bradley John: 219th respondent and CFMEU delegate (15) Windus - John Anthony: 221st respondent and AMWU organiser 5 The Commissioner does not proceed against the following nine (9) Employee Respondents for breach of an order of the AIRC, but does proceed on all other causes of action. (1) Rolando Bazaez, respondent 12; (2) Johannes Duplessis, respondent 59; (3) Duane Guyatt, respondent 88; (4) Robert Holt, respondent 94; (5) Darrin Lane, respondent 115; (6) Gheorghe Mateiu, respondent 127; (7) Pasko Mitreski, respondent 141; and (8) Maree Wainmann, respondent 203.

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The BCII Act 13 The relevant sections of the BCII Act are: (a) Section 9 establishes the Commissioner; (b) Section 38 provides that a person must not engage in unlawful industrial action; (c) Section 49(1) and (6) provides that the Commissioner may apply to the Federal Court for an order imposing a pecuniary penalty; (d) Section 49(1) so provides in the case of a defendant who has contravened a 'civil penalty provision', defined in s 4 in a manner that includes s 38; (e) Section 48 provides for accessorial liability. At its broadest, a person is deemed to have contravened a civil penalty provision if he is 'involved' in the contravention by aiding it, or being indirectly knowingly concerned in or party to it; (f) . . . (i) s 69(1)(b) provides that the conduct of an officer or agent of a union is to be taken to be the conduct of the union; (ii) s 69(1)(d) provides that the conduct of a person who is a member of the union, and who performs the function of dealing with an employer on behalf of the member of the association acting in that capacity is taken to be the conduct of the union. 14 There are several relevant definition sections: (a) Section 38 provides that a person must not engage in unlawful industrial action; (b) Section 37 defines 'unlawful industrial action' to include three elements, each having its own definition in s 36; (c) "Industrially-motivated" action is defined to mean motivated by, among others, the purposes of disrupting work and the purpose of advancing claims against an employer; (d) "Constitutionally-connected" action means 'building industrial action' that relates to work covered by a 'Commonwealth industrial instrument', and/or adversely affects a 'constitutional corporation'; and/or is taken by a union; and (e) "Excluded action" means "protected industrial action". 15 Some of those s 36 definitions require recourse to further definitions: (a) 'building industrial action' is defined in s 35 to mean, relevant to this case, a failure or refusal by persons to attend for 'building work'; (b) "Building work" is defined in s 5 to mean any construction etc of structures etc that are to form part of land, whether permanent or not. "Land" includes seabed; (c) 'Commonwealth industrial instrument' is defined in s 4 to include a 'workplace agreement' which in turn is defined in s 4 to mean a workplace agreement within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. That Act, in Schedule 2 item 4, provides that its expressions take the same meaning as in the WR Act, which Act (ss 4 and 328) defined 'workplace agreement' to include a Union Collective Agreement, and specifically a 'Union Collective Agreement'. Each of the two agreements tendered through Ms Luskan is a Union Collective Agreement, within the meaning of s 328 of the WR Act. Each agreement is "made" when its terms were agreed: s 333(c) WR Act. The AMWU admit our pleading on this. The CFMEU admit the agreement was made, which suffices for the purposed of the legislation; and (d) 'Constitutional corporation' is defined in s 4 to mean a corporation to which s 51(xx) of the Constitution applies, and that means any trading corporation. For this purpose, the constitutional corporation does not have to be the employing corporation. The Commissioner relies on adverse effects on Woodside as well as on CBI. However, those facts are not required to be proved, because all respondents have admitted the relevant constitutional requirement (namely that the industrial action was 'constitutionally-related').

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The Workplace Relations Act 16 The application relates to a time when the WR Act was in force. It has been repealed and replaced by the Fair Work Act 2009 (FW Act). The WR Act continues to apply to events occurring during its period of operation. Section 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that an item in a schedule to the WR Act takes effect according to its terms. Schedule 2 item 11(1) provides that the WR Act continues to apply to conduct occurring before its repeal. 17 Also, the Commissioner's position as an inspector is preserved for that purpose: Sch 18, Part 3, Item 13(1) and (2) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provide that any application that could have been made under the WR Act by a Workplace Relations Inspector can still be made by a Fair Work Inspector, and the applicant is a Fair Work Inspector: s 73(2) BCII Act. 18 The relevant sections of the WR Act are as follows: a) First, s 727 sets out what are called 'civil remedy provisions'. They include any section of the WR Act which is specified in that section to be a civil remedy provision. Section 494 and 496 are both so expressed: s 494(4) and 496(11). Section 727 also includes as 'civil remedy provisions' all of the compliance provisions in s 719, whether or not the various items in s 719 are also expressed elsewhere to be civil remedy provisions within specific sections; b) Section 728 sets out the accessorial liability provisions, which are similar to those in the BCII Act, and s 729 provides that the civil rules of evidence shall apply; and c) Section 496 is expressed in s 496 to be a civil remedy provision, and the conduct proscribed by s 496 is also in s 719(1), and is thereby deemed to be a civil remedy provision under s 727. For other matters, such as breach of a Union Collective Agreement, there is no such overlap. Nothing turns on this. 19 For the allegations of taking industrial action before the nominal expiry of a Union Collective Agreement: (a) Section 494(1) provides that, for the period of a Union Collective Agreement, certain persons must not engage in industrial action, whether or not the disputed matter relates to the Union Collective Agreement; (b) Under s 440, industrial action that occurs before the nominal expiry of a Union Collective Agreement can never be 'protected industrial action'; (c) The certain persons bound by s 494(1) are set out in s 494(2); they are the employees, the union bound by the Union Collective Agreement and the union officers; (d) By s 494(4), subsection (1) is a civil penalty provision; (e) The Court may impose a penalty: s 494(5); (f) An inspector may bring an application: s 494(7); 20 For the allegations of industrial action in breach of an order of the AIRC: (a) Section 496(1) and (4) provide the basis for applications to, and orders by, the AIRC in respect of industrial action that is not 'protected industrial action'; (b) Section 496(10) provides that a person to whom an AIRC Order is expressed to apply must comply with the order; and (c) Section 496(11) provides that subsection (10) is a civil penalty provision. 21 The allegation of breach of the AIRC Order is made against all respondents except Windus because his name was omitted from the AIRC Order. His conduct is still attributed to the AMWU. 22 For the allegation of breach of the Union Collective Agreement: (a) Section 717(1) defines the expression 'applicable provision' to include a Union Collective Agreement, and 'eligible court' to include the Federal Court (read with s 4); (b) Section 718(1) (item 4) allows an inspector to apply in respect of a breach of a Union Collective Agreement; and (c) Section 719(1) allows the Court to impose a penalty, and s 719(4) sets the amount. 23 This cause of action is contested as a matter of law by all of the respondents. 24 In all causes of action under the WR Act, the sole penalty provision is under s 719(4). 25 Both s 494 and s 719 of the WR Act require the relevant Union Collective Agreement to be in operation. Section 494(1) of the WR Act prohibits industrial action only from the day when a collective agreement comes into operation. Similarly, s 719 of the WR Act empowers a court to impose a penalty on a person who is bound by an applicable provision, and that condition, according to s 351 of the WR Act, is dependent upon the workplace agreement being in operation. Section 347(a) of the WR Act, at the relevant time, provided that a collective agreement came into operation when lodged. 26 While not relevant at the liability stage, s 735 of the WR Act prevents application of two penalty provisions for what is essentially the same conduct. Hence, there cannot be a penalty in respect of both unlawful industrial action under the BCII Act and industrial action before nominal expiry of a Union Collective Agreement. However, that is no barrier to an application for declaration of breach of both.

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Standard of proof 27 Given the nature of s 38 of the BCII Act and s 494 of the WR Act as civil penalty provisions, the practical requirements of the burden upon an applicant of proving alleged contraventions operate by reference to the civil standard of proof but, critically, paying due regard, compatibly with s 140(2) of the Evidence Act 1995 (Cth) to the nature of the cause of action, the nature of the subject matter of the proceeding, and the gravity of the matters alleged. 28 That subsection of the Evidence Act is a restatement of what Dixon J said in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. A Full Court of this Court has recognised the correctness of this approach to fact finding in industrial regulatory cases seeking the imposition of a civil penalty: Construction, Forestry Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90 at [110]. 29 The Commissioner bears the burden of proof as to the conduct of the respondents. The penalties for breaches of s 38 of the BCII Act are substantial and the consequences for the respondents may be grave. 30 As to inferences in a civil cause, all that is required are circumstances raising a more probable inference in favour of what is alleged. Where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference but they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is no mere matter of conjecture: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5. 31 The Commissioner's case against the Unions and their delegates relies almost entirely on the drawing of inferences most of which I have not been prepared to draw. The Commissioner's case against these respondents has substantially failed.

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Knowledge of redundancy issue pre-1 October 2008 35 On 30 September 2008, Upton issued a Right of Entry Notice for a meeting with CBI employees to be exercised on 1 October 2008. Right of Entry Notices are statutory instruments under s 760 of the WR Act, validly issuable by a permit holder. Upton held a permit. 36 The Commissioner contends that Upton issued that notice in order to discuss the redundancy issue with employees and that he knew before 30 September 2008 that the intended meeting was for that purpose. Upton denies that he had been told about the redundancy issue prior to 1 October 2008. 37 There is no evidence from Luskan, Macaree, Stuurstraat or Marcano that Upton had ever discussed the redundancy issue with any of them before 1 October 2008. In fact Luskan when asked specifically if the topic had been raised with her before 1 October 2008 said: With me personally, it was the first time with the union. I'd had employees approach me prior to that, but not the actual union. 38 Macaree said requests were made to him for voluntary redundancies that were granted; that there were some forced redundancies but there was no claim for redundancy payments made leading up to the end of Phase V. It came to his attention that some employees were aggrieved by the process of the redundancies made, not that some employees had raised the issue with him as alleged by the Commissioner. 39 Stuurstraat agreed that from the time he started on the Site full-time, which was on 29 September 2008, up to 13 October 2008, he had heard CBI employees asking why CBI had not paid them out but that "(i)t wasn't a flood of people asking me, it was one or two". He was not in a position to resolve the issue with those who asked about it. 40 Windus said that the AMWU members working for CBI were being deliberately deceived by CBI and Woodside as to the status of the various projects. Some members, he said, regarded the AMWU members as being in the same position as employees of PNH Scaffolding who "were made redundant, paid out and then re-hired". This state of affairs had been going on for about three months prior to the first action by CBI employees. This was a clear reference to the redundancy issue. 41 The evidence of Holdsworth establishes that he held meetings with AMWU members between August and September where his members raised the redundancy issue with him. He spoke to Macaree about it: he said his members were seeking to be paid out and that there were many unhappy employees. Counsel for Upton submits that none of this evidence, without more, gives rise to an inference that Upton knew about the redundancy issue prior to 1 October 2008. 42 Upton's evidence as to the meeting of employees on 1 October 2008 was confused. He agreed, in cross-examination, that the meeting was held before work commenced. It was a meeting, according to him, attended by "hundreds of people". Later he said he had been confused and that "at the end of the day the meeting was at smoko time". I take the reference to the "end of the day" to be metaphorical. Later again, he said that he had walked through 15 crib rooms to get whoever wanted to come out and let them know there was to be a meeting on site. 43 There is no evidence, according to his counsel, that Upton issued the Right of Entry Notice for the purpose of discussing the redundancy issue with CFMEU members. Upton's evidence was that the purpose of issuing the Right of Entry Notice was not to discuss the redundancy issue because he did not know about it prior to the 1 October meeting. 44 He contends that there is nothing incredible about issuing such a notice for a site visit without asking the members the purpose of the meeting: Upton said he was the sole CFMEU Organiser for the North West at the time and travelled 10,000 kms per month so there were lots of issues. He said that he tried to get to the Site once a month and meet with members and this required a Right of Entry Notice. 45 It is beyond doubt that the AMWU and its organisers on the Site had known for months prior to 1 October about the redundancy issue. I do not accept Upton's evidence that he was not aware of it. I find that he had this knowledge. It was a matter of the most serious concern to the CFMEU members who worked at the site. He was required to visit the Site regularly in his role as a CFMEU organiser. It was a central part of Upton's job, I infer, to know about current employees concerns.

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Meeting with CBI officers - 1 October 2008 47 Immediately after the meeting with employees, Upton and Windus attended a meeting with CBI officers Guyer, Starling and Luskan. A meeting between Union delegates and CBI officers was common after exercise of a Right of Entry Notice. 48 I accept the evidence of Luskan, that this meeting was specifically requested by Upton and Windus. 49 The Commissioner pleads at SOC [21] as follows: 1 OCTOBER 2008 21. On 1 October 2008, Windus accompanied by Upton: (a) represented to CB1 that the Phase V Expansion Project had been completed (Representation); (b) demanded that CSI: (i) terminate the employment of the Employee Respondents covered by the AMWU Collective Agreement, (ii) pay out their consequential redundancy entitlements taxed at concessional rates and (iii) re-employ them for the S6 and VRL packages (Claim); and (c) threatened that those Employee Respondents would take industrial action if CBI did not meet the Claim (Threat). Particulars The Representation, the Claim and the Threat were made orally by Windus to Luskan and Guyer at the CBI premises in Karratha. 22. At the same time, Upton by his conduct made the Representation, the Claim and the Threat in respect of Employee Respondents covered by the CFMEU Collective Agreement. Particulars The conduct comprised Upton's attendance in concert with Windus, his failure to dissociate himself or the CFMEU from the Representation, the Claim or the Threat made orally by Windus. 50 Accordingly, the pleading is structured by reference to a "Representation", a "Claim" and a "Threat". I will, in these reasons, use these terms as shorthand descriptions but not confined to the events of 1 October 2008. 51 Luskan said that there was quite a bit of discussion about Stabiliser 6 and the VRL and there were "lots of other things discussed at the meeting and I had made some notes in my diary along those lines". Her diary note refers to two employees, Phase V being finished, removal of the Medical Centre, what Windus supposedly said, and relocation of the Medical Centre for Stabiliser 6 and VRL employees. I find that her note stating "Phase V finished" to be a reference to the redundancy issue. 52 I find that the redundancy issue was put by Windus to the CBI officers at this meeting. He did so in a general way without differentiating between AMWU and CFMEU members who had attended the earlier meeting. Luskan said it was. Upton said that both he and Windus had raised it at the meeting because their members had requested that they do so. He added, emphatically, that any suggestion that there had been no talk of the redundancy issue at the meeting was incorrect. He had earlier described it as a "massive issue" for the CBI employees on site. I reject Windus' evidence that the redundancy issue was not raised with CBI at this meeting. 53 I find, on the evidence of Luskan, which I accept, that Windus asked why CBI would not admit that the Stabiliser 6 and VRL were not part of Phase V and gave reasons in support of the view that Phase V had finished. Luskan said that Windus did a lot of talking about his Right of Entry pass, but she did not recall anything that Upton said about the Right of Entry, or Stabiliser 6 and VRL, or Phase V being finished. 54 Guyer rejected the premise of the redundancy proposition. He said that Stabiliser 6 and VRL were part of the same job. In response Windus said words to the effect: "If it takes an illegal strike, I will march the boys up the road to make you [CBI] admit Phase V has finished; you [CBI] need to pay them out." Upton, according to the Commissioner, did not disassociate himself from the Threat. Luskan's handwritten note supports a finding that this threat was made. The note states "Windus - Threat illegal strike if that's what it takes!!" Counsel for Upton submits that this cannot be taken as anything other than a statement of Windus' intention. I reject Windus' denial that he made the Threat. I did not find him to be a witness of truth for reasons which I will later explain. No Jones v Dunkel point arises because the Commissioner did not call Starling or Guyer. It is not necessary for a party to call every witness who could give repetitive and cumulative evidence. 55 Not long after the Threat was made Upton said: "Fuck it, I'm leaving," and left, as did Windus immediately. I find that Windus made the Threat in the presence of Upton, that Upton's exclamation and departure came sometime after Windus' Threat, and not because of it, and after further non-productive discussion with CBI. I do not accept Upton's evidence that he did not hear the Threat. He was in close proximity to Windus at the meeting and they effectively left together. Upton said that he was frustrated, not by CBI's rejection of the issue, but because he was frustrated at CBI's attitude and the discussion was going nowhere and was just going round in circles. It is difficult to see the distinction. I infer that Upton's sharp remark was engendered by anger that the CBI representatives were refusing to buckle to the demands of the employees, including the Employee Respondents, in relation to the redundancy issue. 56 I accept the submission that Windus did not act as a mere messenger of the employees who were AMWU members. The employees did not express any intention to strike, so the Threat expressed by Windus was not a threat relayed from them, but one he advanced in relation to their claim. 57 However, I do not accept that because Upton did not disassociate himself from Windus' threat that this resulted in the Threat being a joint one on behalf of AMWU and CFMEU members. Windus' threat referred directly to him marching the boys down the road. He was in no position to march CFMEU members down the road. His threat did not extend to them and there was no need for Upton to disassociate himself from the Threat made by Windus. 58 I find that Windus and by silent association Upton, communicated as they had been asked to do, the Representation, and the Claim but that only Windus made the Threat. As pleaded the Threat was made in respect to those Employee Respondents covered by the AMWU Collective Agreement. When Windus spoke of "marching the boys up the road" he could have been referring only to Employee Respondents who were AMWU members.

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Windus and the AMWU 62 McCartney said he understood from Duffy as at 13 October 2008 that the CBI employees had gone on strike. He told Windus so. His understanding was mistaken. There was no strike on 13 October 2008. 63 However, what is not in dispute is the evidence of McCartney and Windus who said that arrangements were made on 13 October 2008 that Windus be sent immediately to Karratha to deal with the strike. Windus did arrive in Port Hedland and drive to Karratha in the early morning of 13 October 2008. It is probable that he arrived in Karratha sometime around or shortly after midday. Accordingly, it is evident that McCartney and Duffy on 13 October 2008 did know something concerning a strike at CBI, and they did know it early enough to arrange for Windus to travel to Port Hedland by 8.13 am, being the time in Windus' telephone records for that day when he made a call from Port Hedland. 64 Conservatively estimated, I accept the Commissioner's submissions that the decision to send Windus must have been made, at the latest, around 5.00 am on 13 October 2008, allowing for Windus to: (a) to be telephoned to attend at the Perth office, and getting dressed and packed; (b) travel to the Perth office (c) speak briefly to McCartney (who was on his way to another meeting); (d) speak to Duffy; (e) see the secretary about travel arrangements; (f) travel to the Airport and board a plane; and (g) fly to Port Hedland. Conservatively, allowing for (a) 20 minutes; (b) 15 minutes; (c), (d) and (e) 15 minutes; (f) 30 minutes; and (g) two hours, comprising 3 hours 20 minutes, which puts the decision at about 5.00 am. It may well have been earlier given the conservative nature of these time estimates. 65 It follows that the AMWU decision to send Windus to Karratha in respect of a strike at the Site was made before the CBI employees met on 13 October 2008 and of course before the CBI rejection of the redundancy issue. Duffy and McCartney knew something about strike action before the employees meeting and at least Duffy would have told Windus that this was the position. 66 It may be even that Duffy knew enough about a strike on 12 October 2008 to arrange on that day for Windus to travel the following day to Port Hedland. However, it does not matter whether it was arranged on 12 or 13 October. 67 What is clear is that Windus made the Threat on 1 October 2008. I infer that he informed Duffy of that. This inference is supported by a number of factors: first there were six mobile phone calls on 1 and 2 October 2008 between Windus and Duffy, the AMWU State President; second the significance of the issue; and third the significance of strike action.

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Upton 69 I have found that, prior to 13 October, Upton knew nothing of imminent strike action. He arranged for the issue of a Right of Entry Notice on 10 October 2008. He had been at the 1 October meeting when Windus made the Threat. He was, on his written evidence, and although he first denied it, also ultimately in his oral evidence upon cross-examination, asked to attend the 13 October meeting by Brown and others on the Site, for a reason which he no longer recalled. Brown well knew of the CBI employees claims in relation to the redundancy issue. That he did not mention to Upton why he and others wanted him to come to a meeting on the Site on 13 October is not credible. I do not accept Upton's evidence that he did not know the reason for calling the meeting. I find that he knew it was a meeting of CBI employees including CFMEU members concerning the redundancy issue but not that he knew that strike action was to be discussed. There was no evidence of communications between Upton and Windus, or anyone else, prior to or on the morning of 13 October, absent which, no inference of knowledge on the part of Upton of contemplated strike action could arise. However, I do not believe his oral evidence that after 1 October he had made enquiries and had thought that the redundancy issue had been resolved. He did not expand upon the nature of his enquiries. There is no evidence to support such a conclusion. He did not include this assertion in his written statement. All the evidence points in the opposite direction: CBI had at all times rejected the redundancy claim. 70 The Commissioner also contends that Brown and Johnson knew before the meeting that it was likely to result in a resolution to strike if CBI did not meet the claim and that this is evident from the events concerning the arrival of Windus in Karratha. 71 The meeting was about the redundancy issue and, as it transpired, related strike action. Upton arrived at the meeting place before anyone else. According to Upton the employees said that they wanted to be paid their redundancies and they wanted an answer by the end of the day or they were going out. However, he was adamant that the employees certainly did not specify a time frame for such strike action. I accept this evidence. No one else gave evidence of what occurred at the meeting. He said that several of the employees had a demand they wanted him to convey to CBI about the redundancy issue. The employees in attendance included AMWU and CFMEU members as well as non-union employees. 72 When Upton gave evidence during his cross-examination that at this meeting he "… told them to return to work and that we will pass on your message and we will try and work through it and get it fixed" it was not put to him that this was false or somehow mistaken. I accept his evidence on this point. In fact the men did go back to work. 73 Further, on the issue of the threatened strike, counsel for the Commissioner put it to Upton that he did not dissociate himself from the employees by walking away as follows: "You didn't say to them, "What you're proposing is unlawful. I don't want any part of it," and walk away, did you?---I told them that the CFMEU is - that they're not to strike and they're to stay at work. That is a very firm position that all organisers are told to tell everyone that thinks of any industrial action." 74 That evidence was not then challenged further by the Commissioner and accordingly I accept it. 75 It is pleaded against Upton that he addressed this meeting in respect of the Claim and Threat. I find that whilst the Claim was raised at the meeting by some of the employees, Upton referred to the Threat only in the terms I have described, namely, in effect, that the employees should not carry it out.

[38]

Meeting with CBI officers 13 October 2008 79 After that meeting with the CBI employees, a meeting was held attended by Upton, Brown, Johnson and CBI officers Marcano, Stuurstraat and Luskan. 80 Brown showed the officers a paper clipping which contained a statement attributed to Woodside to the effect that Phase V was complete. 81 The evidence of Luskan, Stuurstraat and Marcano about the timing of the strike action goes to what they say Upton told them but not necessarily what had actually been said at the earlier worker's meeting. 82 All three of those witnesses said that Upton threatened strike action if CBI did not agree to the demanded redundancy proposal by close of business that day. To that extent, and in context, it accords with the evidence of Upton. However, their evidence extends further. Although there are differences in some respects as between these three CBI witnesses, each made a written record that Upton threatened strike action involving a strike for a week, return to work for a day to negotiate, and a strike for another week if negotiations were unsuccessful. 83 Luskan, after returning to her office from the meeting telephoned Tony Clarke to inform him of the meeting and then sent an email to him dated 13 October 2008 at 8.47 am and copied to Stuurstraat and Marcano. Relevantly it stated: Brad Upton advised that at a meeting held at 6.15 am this morning the guys had voted to go on strike unless CBI agreed to pay out all entitlements at a redundancy rate and they all be made redundant. If we did not agree to their request by close of business today they would go on strike for 1 week, come back to work for 1 day then go out again for another week. Brad Upton was very clear in telling us "We are on Notice" and unless we agreed the boys would be out the gate tomorrow. 84 She then spoke to Sean Foy of the Chamber of Commerce and Industry by phone and then she sent him an email at 10.36 am attaching a copy of the email she had sent to Clarke and later an email at 10.59 am attaching a statement she had received from Marcano - which relevantly was in the following terms: Today, 13 Oct 2008, I attended to a meeting at WEL KGP main gate as per request of union representatives Upton, Brown and Johnston. CBI was represented by Kelly Luskan, Peter Stuurstraat and myself. The Union expressed Stabiliser 6 and Vapour Return Line workers interest of being paid all entitlements associated with their work at Phase V as they consider this Project has been completed. Their comments were based on information published by WEL on one newspaper and their believe (sic) that S6 does not form part of the Phase V scope. The Union indicated they would take the following actions if a positive response to their expectations respect to payment of redundancies and others project completion entitlements is not provided by COB today: 1. One week work stoppage starting on 14 Oct 08 2. Workers to return to work for one day to continue negotiations. 3. One week work stoppage if CBI does not satisfy Union requirements. 85 Later she forwarded by email at 10.45 am to Clarke, Stuurstraats email to her which attached an email addressed to but which had not been sent by him to Clarke. It contained relevantly the following: Hi Tony, This morning Monday October 13th at approximately 7.30am I was called by Kelly Luskan to acompany her and Jose Marcano to a meeting outise the KGP gate to meet with Robert Brown (CBI CFMEU Delegate) Brad Upton (CFMEU) and Mark Johnston (CBI AMWU Delegate). Brad Upton told us that the crew will go on strike as of tommorow (sic) if CBI did not agree to payout the crew's redundancy entitlements from the Phase 5 project by the end of the day. The strike will be for one week and that they would then return for one day and then they would go out for another week. Brad was informed that there was a process that needed to be followed for such action and that his current actioins (sic) did not fulfill these requirements. His responce (sic) was well this is it. 86 In cross-examination, Luskan agreed that at the 13 October 2008 meeting when Upton spoke of the CBI employees' Claim, in effect, as she understood it, Upton was just relaying what those employees had discussed at their morning meeting. 87 Stuurstraat made a note of the meeting. The note makes no actual mention of a strike although the words "just go back to work" allude to a strike. 88 Stuurstraat, like Luskan, also used the expression "the boys" as being the persons who were demanding their money. He recalled "they" wanted an answer by the end of the day or they would go on strike. 89 Stuurstraat later composed but did not send an email addressed to Clarke which stated that "the crew" would go on strike the following day if CBI did not agree to payout the crew's redundancy entitlements by the end of the day. 90 He did however send a copy of this email to Luskan. She, in turn, as I mentioned, forwarded this to Clarke. It is phrased in terms somewhat similar to that of Luskan's email which Stuurstraat had received earlier that morning and he may well have couched his email in those terms after reading her email. I do not find that unusual or a basis for rejecting that it was, at the time he wrote it, in keeping with his own recollection. 91 In cross-examination, Stuurstraat too agreed that at the 13 October 2008 meeting when Upton spoke of the employees' Claim he understood him to be relaying what the employees had discussed at their morning meeting and that Upton did not say "The Union wants the boys' money paid". He also agreed that Upton did not say that the CFMEU fully supports the men going on strike if CBI did not give them an answer. 92 Marcano gave oral evidence about what Upton said in the following terms: That day the union delegate they requested that the workers should be paid all their entitlements related to the completion of the Phase 5 as they believed that the stabiliser project and vapour return line were not associated to the Phase 5 project. They said that if CBI wouldn't pay by the end of the day they will stop the workers for one week, come back to the negotiation for one day, and then stop the workers again if we don't fulfil their request. 93 His evidence was to the effect that the Claim and the Threat were being put on behalf of the CFMEU rather than relaying what had, so it seemed, been put to Upton by the employees. 94 I find that Marcano was mistaken in this respect and I prefer the evidence as to the understanding of each of Luskan and Stuurstraat. 95 Although his handwritten notes of the meeting are in line with his oral evidence this merely reflects, I find, a misunderstanding on his part which was in the circumstances an easy one at which to arrive. The Claim and Threat were conveyed by a Union representative but the Threat was not, as I have found, one being made by him or by the CFMEU. 96 Upton denied that he had referred to any specific time frame for strike action. I do not accept this evidence. This does not mean that I rejected the totality of his evidence. I prefer the relatively contemporaneous version in the emails of Luskan, Stuurstraat and on this point also that of Marcano. The Threat, so far as it had become a threat to strike for specific periods, was made by Upton and therefore also by the CFMEU. It was not the message he was asked to convey by those he represented. Nonetheless in his capacity as a CFMEU organiser he did so. 97 Upton, in his cross-examination suggested that either Brown or Johnson may have said it, although he said that he did not hear them say it. 98 Counsel for Upton submits that neither Luskan, Stuurstraat nor Marcano could remember exactly what was said by either Brown or Johnson at the same meeting. This is not a basis for inferring that it was probably one of them who made the strike threat involving, as I find it did, a specific time frame.

[39]

The pleading 13 OCTOBER 2008 28. Later on 13 October 2008, at a meeting of Upton, Johnson and Brown with Luskan, Marcano and Stuurstraat: (a) Upton orally repeated the Claim; (b) Brown orally repeated the Claim; (c) Brown orally repeated the Representation; (d) Upton orally repeated the Threat; and (e) Upton stated that the Threat would be implemented by the Employee Respondents refusing to attend work for one week, returning to work for one day, then refusing to work for another week unless the Claim was met by CBI (Statement). 29. At that meeting, Upton, Johnson and Brown each, by his conduct, made the Representation, the Claim, the Threat and the Statement. Their conduct included their attendance at the meeting in association with each other and their failure to disassociate themselves or the AMWU or CFMEU respectively from what was said by Upton and Brown. 30. At that meeting, CBI did not meet the Claim and warned the union officials and delegates that the Threat and the Statement would be inconsistent with the dispute resolution procedures in the Collective Agreements. 31. Later on 13 October 2008, CBI communicated with the Employee Respondents its reasons for refusing the Claim. Particulars On 13 October 2008, CBI provided a memorandum to the Employee Respondents setting out its position in relation to the Claim and the Representation, including the basis for refusing the Claim. 99 I find that Brown repeated the Representation when he showed the paper clipping to the CBI officers and said words to the effect that this demonstrated the correctness of the position being argued by the employees. 100 I find that Upton mentioned the Threat but in a way that it was apparent that he was not making the Threat on behalf of the employees but merely informing the CBI officers that the employees had asked that the Threat be conveyed to CBI. This was not an act to assist what had been threatened. It was no more than an act of communication. It was so conveyed in the context of further discussion as to the Claim. I find however, that Upton took it upon himself to make the Statement although he had not been asked to do so by the CFMEU members he represented. 101 I also find that Brown and Johnson implicitly, by failing to disassociate themselves from the Statement thereby adopted it. Upton conveyed the Statement as one referable to all the CBI employees threatening strike action and not just CFMEU members. Brown and Johnson, in those circumstances ought to have explained to the CBI officers that the Statement did not come from any of the employees or from either of them. They remained silent when they had an obligation, in the circumstances I have described, to set the record straight. Each of Upton and Johnson, at this meeting, was acting within the scope of his actual or apparent authority.

[40]

Windus' knowledge - 13 October 2008 102 Upton left the the Site for unrelated business on other sites. He said that he had a telephone conversation with Windus at 8.45 pm. He gave evidence, which I accept, that he told Windus about the employees meeting that morning, about the CBI meeting that morning, that Macaree had said in the afternoon that CBI would not make redundancy payments, and that there was a meeting of employees the following morning. He told Windus enough that Windus must have known that there was a real likelihood that the employees would, during the meeting the next day, at the least consider going on strike. 103 Windus, in his statement, said that he "made communication with Brad (Upton) to get an update on the situation and to see if there was any possibility of meeting with the workers that afternoon". I do not believe Windus when he gave evidence that he did not that evening know of a meeting of CBI employees arranged for the following morning. Given that the telephone call occurred and the associated circumstances, Upton's version is plausible but Windus' version is not. 104 Moreover, he as well as McCartney said that he was sent to Karratha urgently for the purposes of the strike. It is incredible that he would not have been informed about those matters by Upton at some time between arriving in Port Hedland some time before 8.13 am on 13 October 2008 and retiring that night. He said that Upton was a friend of his. It is incredible that he would not have inquired of anyone else, particularly Johnson or any other employee. 105 On 13 October 2008, at 9.47 am, Windus and Duffy spoke by telephone for 3 minutes and 31 seconds. At that point in time the two meetings (with employees and with CBI) had occurred. It is incredible that Duffy did not then know about those meetings. He was already aware of, at least, a threat of strike action. 106 I find that, by the evening of 13 October 2008, Windus knew of an employees meeting to take place the following morning, and knew the meeting was likely to concern strike action. I also find that his evidence about those two facts was deliberately false. 107 When cross-examined as to why he had not, on 13 October, on his evidence, made enquiries in Karratha with people he knew about what was going on and therefore did not know about the meeting to take place the next morning, he said that he "had other matters to deal with". He said he got a phone call from Perth shortly after he got to the Karratha area informing him of the death of an AMWU member who had been crushed underneath a tilt tray by Coates Hire at Dampier Port. He later said he was sent to Dampier Port that day to find out what had gone on and to gather information. He said he drove to the Dampier Port that day. He did not recall the deceased's name. He said that the man had not been crushed between a truck and a silo. He thought the man was a fitter in his mid-forties. He said that he spoke to the Dampier Port Harbour Master at the Port in the afternoon of that day about the death. He did not remember the Harbour Master's name. 108 He said that he did not pursue the matter into 14 October because he believed the MUA had taken on the matter. This is a reference to the Maritime Union of Australia. Despite this Windus did not attend the meeting of employees on 14 October 2008. Windus said that was because he did not know of such a meeting. This denial is contradicted by Upton. Also, Upton said that Windus told him that a different exigency had arisen on the morning of 14 October 2008, which Windus never mentioned in Court. I have accepted the evidence of Upton on these matters. 109 Windus' evidence concerning the alleged death was not in his written statement but was proffered for the first time during cross-examination. I find that this was a deliberate and recent invention on the part of Windus in order to explain away why, according to him, he did not know on 13 October about the meeting to take place in the morning of 14 October. 110 I do not believe his explanation concerning the death of a worker as to why he did not know of this meeting. I find that Upton told him on 13 October of this meeting which was to take place the following morning.

[41]

Application to admit rebuttal evidence 111 The Commissioner applies under the Court's discretion for leave to adduce rebuttal evidence. The evidence proposed extends only to whether there was a death that could match that described by Windus to explain why he might not have been able on 13 October 2008 to attend to the industrial relations situation at CBI's site. 112 This is not an application to re-open the Commissioner's case to lead further evidence in support of that case. Rather, it is made under s 106 of the Evidence Act for leave to adduce that further evidence in respect of an issue of the credit of Windus. It is rare to give leave to adduce rebuttal evidence on credit. Invocation of that section by a plaintiff necessarily involves the plaintiff adducing evidence after closing its case. 113 The Commissioner submits that the issue of credit is of singular importance to the case against Windus and the AMWU. He submits that after cross-examination, the Commissioner's case includes that Windus deliberately did not attend on the morning of 14 October 2008 because he did not then want to tell employees not to strike. The falsity of the story of the distraction of a death is a fact contended by the Commissioner as going to that inference. Accordingly the Commissioner submits that Windus assisted, and was knowingly involved in, the strike on 14 October 2008 by deliberately refusing to inform member employees that their union, the AMWU, was against strike action. 114 I do not accept that the Commissioner can expand his case, whether as a result of cross-examination or otherwise, unless an amendment to that effect is sought and granted. No such case is pleaded and no amendment was sought. The general rule, based in procedural fairness, is that relief is confined to that available on the pleadings: Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 per Mason CJ and Gaudron J at 288. This must, it seems to me, encompass not merely the relief pleaded but the facts alleged in the pleading upon which relief is sought. Borrowing from the judgment of Mason CJ and Gaudron J at 287, it cannot be said that in this case "the parties (chose) some different basis for the determination of their rights and liabilities". Indeed the Commissioner was permitted, on 22 March 2011, on the second day of the trial, by order of the Court to amend his statement of claim. He was given further leave during the trial on 30 March 2011 to further amend his statement of claim. 115 It would be quite unfair to the respondents, particularly in proceedings for civil penalties, to allow the Commissioner any latitude in this respect. Indeed the Commissioner's pleaded case was that Windus attended the meeting on the morning of 14 October. I would for that reason not grant leave to the Commissioner to tender the proposed rebuttal evidence. In any event, for other reasons stated, I have not accepted Windus' evidence on this matter.

[43]

The pleading 14 OCTOBER 2008 32. At or about 5.30am on 14 October 2008, a number of the Employee Respondents attended a meeting at Bay Village, Karratha convened, alternatively attended, by Windus and Upton (14 October meeting). 33. At the 14 October meeting: (a) Windus and Upton conducted the meeting to facilitate a vote of employees on whether to engage in industrial action. (b) Windus and Upton reported to those Employee Respondents present the refusal of CBI to meet the Claim. (c) Windus stated to those AMWU Employee Respondents present that the AMWU would support them if they took industrial action in support of the Claim. (d) Upton represented to those CFMEU Employee Respondents present that the CFMEU would support them it they took industrial action. Upton's representation is to be inferred from his attendance at the 14 October meeting, his role as a CFMEU organizer and his failure to disassociate the CFME from Windus' statement. (e) Windus facilitated a vote of Employee Respondents. (f) Upton authorised Windus to facilitate the vote in respect of Employee Respondents who were CFMEU members. (g) The Employee Respondents present voted to take industrial action. (h) Windus and Upton undertook to report to CBI the result of the vote. (i) Windus and Upton stated to a number of Employee Respondents that they would convene another meeting the following day. 34. Windus and Upton conveyed to CBI the results of the vote at the 14 October meeting. 117 Upton did not arrange the 14 October meeting. There was no direct evidence, apart from his own, as to what occurred at that meeting. He did not tell the employees anything that they did not already know. There is no evidence that he arranged a vote concerning a strike, or that, contrary to his evidence, he did not warn the employees that a strike would be illegal. There is no basis to infer the opposite. 118 I accept his evidence that he advised the employees that they should allow him and the other representatives more time to speak with CBI management and that he told the employees to return to work. It was not put to him in cross-examination that he did not do these things. 119 I find that whilst Upton attended this meeting, Windus did not. Upton did not conduct the meeting to facilitate a vote of employees on whether to engage in industrial action. Nor did he authorise Windus, obviously, to facilitate such a vote in respect of non-CFMEU employees. Upton did not say that the CFMEU would support them if they took industrial action. 120 In any event, the employees, including Johnson, did take strike action on 14 October 2008.

[45]

Evening of 14 October 2008 123 There was a meeting of employees at Bay Village camp site. Luskan and Stuurstraat noted a meeting of employees happening near the bus lay down area in Bay Village around 5.30 pm, but neither saw who was at the meeting. Marcano saw nothing. Macaree saw nothing. 124 Windus attended and said that Upton did too. Upton does not recall whether he did, but could not firmly deny it. I find that he was present. 125 By the time of this meeting the AIRC Order had issued and taken effect. Windus was informed of the orders. His statement at [61] reads as if he did not then know of the AIRC Order, but in oral evidence, he said that he meant that he did not know about the AIRC Order until after 4.00 pm, and before 5.30 pm, when he addressed the employees. 126 Copies of the AIRC Order were served on CBI employees on the evening of 14 October by Luskan and other CBI officers. They were served either personally or by being left securely in the screens of the doors of individual employee's rooms. 127 No evidence was adduced by the Commissioner as to when service was effected on Upton only the CFMEU. It is not disputed by Upton that he was served with the AIRC Order at some stage. He said that he could not recall precisely when he became aware of the contents of the Order. I infer that Upton was informed on 14 October. The CFMEU was represented at the AIRC hearing that morning, service was effected on the CFMEU that day; service was effected at Bay Village. It is improbable that Upton was not made aware of these orders by his employer soon after they were made. 128 Windus recalled Upton telling the employees during the 5.30 pm meeting both that the CFMEU wanted them to return to work and that they had to go back to work because proceedings had been brought against them to stop them taking industrial action. 129 Counsel for Upton submits that there is support for the evidence of Windus regarding this meeting from Macaree. In cross-examination, Macaree gave the following evidence: Did Mr Upton and Mr Windus, between them, tell you at that meeting that earlier that afternoon, that is, on the 14th, they had met with employees at Bay Village and explained the AIRCs order to them?---That's correct. And they also told you, between them - you may have difficulty recalling who said what but they told you, between them, that they had told the employees at that earlier meeting that they were required to return to work?---I think that probably was the case, yes. I don't have a specific recollection but it was made clear to me that they had explained the content of the order which included a return to work. I mean, I don't doubt that. . . . All right?---I mean, I do know that they said that they conveyed the contents of the order of the Industrial Relations Commission. 130 However, this evidence does not necessarily mean that Upton and Windus accurately recounted to Macaree what they had told the employees. However, it is a clear statement as to the knowledge of Upton and Windus as to the content of the AIRC Order. 131 The Commissioner accepts that Windus told the employees they must not strike for 4 weeks, which was a reference to the duration of the AIRC Order. However, the Commissioner submits that this is tantamount to saying to the employees that strike action is acceptable but for the AIRC Order. I do not agree. It was no more than a statement of fact as to the effect of the AIRC Order even if he did not mention the actual AIRC Order. 132 The Commissioner poses the question as to why Upton did not openly admit that he had knowledge of the terms of the AIRC Order on 14 October 2008. The same question, he submits, applies in respect of the employees early morning meetings on 15 and 17 October 2008 because, on his statement, he did not raise the AIRC Order with employees until 20 October 2008. He makes no previous mention of having referred employees to the AIRC Order. He said at the 20 October meeting of employees at the Bay Village "the first thing both of us said was words to the effect that the unions wanted them to return to work because there was orders on them to do so", indicating that the Order was something new to be urgently addressed. 133 Counsel for Upton submits that he may have made no mention of referring to the AIRC Order before 20 October 2008 in his statement, because: (a) he lacked recall of attending the 5.30 pm meeting on 14 October 2008; (b) the employees had received their own copies of the AIRC Order on the evening of 14.10.08 before deciding to return to work on 15 October 2008; (c) the employees were angry about the 16.10.08 letter at the morning meeting on 17 October 2008, and many of them were drunk such that Upton was likely struggling to be heard; (d) he had told the employees on 17 October 2008 that the CFMEU was directing them to go back to work, being the substance of the AIRC Order in any event. 134 There is considerable force in the submissions on behalf of Upton. However, it does not seem to me that anything turns on this dispute as to when Upton knew of the AIRC Order other than as to his credit.

[49]

Morning of 17 October 2008 144 Following two days of return to work, the employees met at about 5.30 in the morning on 17 October 2008. Windus and Upton attended. Upton attended after "a lot" of calls from members asking him to attend. They had received the CBI letter dated 16.10.08 and were angry. 145 The Commissioner submits that this anger was caused, it may be inferred, because the employees hopes had been elevated on 14 October 2008 or early on 15 October 2008 but dashed by the letter. I am not prepared to draw any inferences adverse to Upton or Windus upon this basis. There are a number of quite obvious reasons why the employees might have become angry over this protracted dispute. 146 However, I do not believe Windus' evidence that he was told by Duffy that, in effect, CBI were going to pay the redundancy claims but later reneged on this. It is entirely contradicted by all other relevant evidence. It follows that I do not believe him when he said he told the employees at this meeting about what Duffy told him and that CBI had reneged on its offer. 147 Later that day, Upton was informed that Hudston wished to take over dealings with CBI. Upton did not inform Macaree of that until 24 October 2008 and which Upton appears to confirm in his evidence. The Commissioner submits that this supports the inference that Upton continued at least until 24 October 2008 to act in the dispute. I do not agree. It merely shows that until that time Upton did not tell Macaree that Hudston had taken over. 148 CBI issued another letter to all employees dated 17 October 2008. This letter advised that the AIRC Order had been issued, that the strike was illegal, and that each individual would be liable in legal proceedings. Otherwise, it did not materially add to the information in the earlier letter. By this time the employees had already been served with copies of the AIRC Order. The strike continued for seven more days, despite the AIRC Order and despite the CBI letter. I find that the resumption of strike action on 17 October 2008 was in defiance of the AIRC Order. The letter of 17 October was composed according to Luskan, after Macaree had telephoned her and told her in effect that the strike had recommenced. Service of the letter occurred by a notice placed at Bay Village and by text service later that evening directing employee's attention to that notice. 149 It is alleged that Upton and Windus conducted a vote of the employees on 17 October on whether to take industrial action. The evidence of McCartney is that votes are not conducted by the union or its organisers, and the rules do not support such an approach. Rather, motions come from the floor. Upton and Windus deny that they put up a motion at any meeting and there is no evidence that they did. The evidence that, at a later meeting which Holdsworth attended, a motion was put from the floor in no way negates Windus' and Upton's evidence that voting was not conducted by them at their meetings. Indeed it supports McCartney's evidence on this issue. 150 It is also alleged in the alternative that Windus said to AMWU respondents that the AMWU will support them if they take industrial action. There is no evidence that at the 17 October meeting Windus or anyone else said anything about such support.

[52]

22 October 2008 153 On 22 October 2008, a meeting of employees was held at Bay Village, addressed by Brown. Brown, by telephone, had asked Alice Pooley, a video journalist with Golden West Network, to attend an employees meeting on 22 October 2008, which she did. She recorded part of the meeting on video, which video was shown on television that night. Pooley also recorded that day a telephone interview with Kevin Reynolds. 154 Reynolds was the State Secretary of the CFMEU at the time. He told Pooley certain things about the cause of the strike. The Commissioner submits that the conduct of Brown and Reynolds that day gives rise to the inference that, before and at that date, the CFMEU did not dissuade its members from taking and continuing the industrial action. 155 I reject this submission. The evidence of Pooley was to the effect that: (a) Brown called her to organise her attendance; (b) She did not recall how Rob Brown identified himself to her but she knew him previously; (c) He was the organiser of a disgruntled site employees meeting and he was wearing a CFMEU embroidered T-shirt; (d) She and Brown orchestrated the march of the employees for a bit of colour, a bit of action, with Brown directing the workers at her request. 156 I accept the submission on behalf of the CFMEU that nothing can be made of the voiceover of Reynolds in the GWN news report. As Pooley accepted in cross-examination, what was played in the news report was seconds from what would have been up to a 5 minute phone call. As editor, Pooley chose what to cut and the original sound recording of the phone call was destroyed soon after it was made. Without the entire context, including the question which Reynolds answered, what he said can be seen as nothing more than his comment on what he understood the dispute to be about. It is not a basis to infer that the CFMEU was involved in the industrial action. 157 I regard Brown's involvement as being in his capacity as an employee representative and not as conduct of the CFMEU. My reasons for so finding are dealt with later in these reasons.

[53]

24 October 2008 158 There was another meeting of employees in the morning of 24 October 2008. Upton attended. By this time, Holdsworth had replaced Windus for the AMWU. 159 Holdsworth revealed that Upton told the meeting on 24 October 2008 that the Union was democratic and he [Upton] could not dictate to individual employees what they must do. Upton denies saying this. I prefer Holdsworth's account to that of Upton on this point. However, I do not regard this as evidence of Upton and thereby the CFMEU aiding, abetting or otherwise being involved in the unlawful industrial action. 160 I find that the Commissioner has not established on the evidence the allegation that Upton and Holdsworth conducted a vote of the employees as to whether to continue the 17-24 October industrial action. Nor do I find that their communication to CBI through Macaree that the employees had voted to go on strike as evidence of involvement in unlawful industrial action. 161 Reynolds, on 24 October 2008, issued a circular to CFMEU members. It makes the admission that the employees had previously been advised of the AIRC Order. However, as the Commissioner concedes this may be a reference to 20 October 2008. Reynolds states that the strike action puts the CFMEU at risk of serious legal action. This, the Commissioner submits is an admission of such involvement by the CFMEU as to render it vulnerable to liability. I do not agree. It merely points out an obvious "risk". It says nothing about actual involvement. Finally, it advises CFMEU members to resume work immediately to prevent breaching the BCII Act. It is an unambiguous recommendation to return to work. The Commissioner says that it is the sole such written direction or recommendation from the CFMEU, which is correct, but I do not regard anything as turning on this fact. 162 In particular I am not prepared to infer from this that the employees had not previously been told orally that they should return to work. I have earlier found that they were so told. Moreover, the employees, if they were otherwise unaware, which is unlikely, had been told in clear terms in writing by the CBI in its 17 October letter about the AIRC Order and their potential exposure to legal proceedings.

[55]

Brown 164 Brown's status is disputed. It is pleaded by the Commissioner that he is either a member, an employee representative and/or a CFMEU delegate as well as an agent of the CFMEU for the purposes of s 69 of the BCII Act and s 826(2) of the WR Act. 165 Section 69(1)(b) and (d) and s 69(3) of the BCII Act provides that for the purposes of the Act the following conduct in relation to a building association is taken to be the conduct of the building association: (1) . . . (a) … (b) conduct of an officer or agent of the association acting in that capacity; (c) … (d) conduct of a member of the association who performs the function of dealing with an employer on behalf of the member of the association acting in that capacity. (2) . . . (3) In this section: officer, in relation to a building association, includes: (a) a delegate or other representative of the association; and (b) an employee of the association. 166 The Commissioner submits that Brown is established as a delegate or other representative by reason of the following: (a) He usually attended meetings of employees and stood with the organiser; (b) He often called Upton to inform Upton of issues he had been dealing with for various (other) employees; (c) He usually accompanied Upton in his meetings with CBI management; (d) He also represented other employees without Upton; (e) He organised on behalf of other members a meeting on 22 October 2008, addressed the meeting, organised a march of employees, and arranged for all that to be filmed for television news; (f) He was according to Marcano, Stuurstraat and Luskan commonly understood to be a CFMEU delegate; (g) He was introduced by Upton to Windus as a delegate (although Upton denies this); (h) Holdsworth volunteered that Brown was the CFMEU delegate. (In fact Holdsworth said that he believed this was the case); (i) There was no other person who, apart from Brown, purported to act as the CFMEU delegate. (In fact Upton's evidence was that there was no other person who acted as a CFMEU representative. He did not say that this was "apart from Brown"). 167 The CFMEU submits that it is irrelevant to the Court's determination of whether the CFMEU has derivative liability for Brown's conduct that some witnesses thought or understood him to be a CFMEU delegate or shop steward or employee representative. I do not agree. Evidence from officers of CBI and others as to their understanding of his status, if reasonably founded, combined with evidence of his conduct may be relevant considerations. 168 Certainly the Commissioner adduced no evidence that Brown had been formally appointed a delegate in the manner prescribed in cl 57 of the CFMEU's Constitution or that he was in receipt of direct or indirect instructions from any officer of the CFMEU to perform any functions on behalf of the CFMEU or its members consistent with the duties set out for delegates in cl 57. 169 Luskan, in cross-examination: (a) agreed she knew Brown as the CBI employee representative but thought of him as the CFMEU delegate more from habit; (b) described his role as a spokesman for employees in relation to issues such as pay queries, or drug and alcohol testing; (c) recalled his role was not just limited to CFMEU members but that he would be there to speak for anybody on site that had an issue. 170 Stuurstraat said that Brown was the representative of the crew and that he, and other CBI management, made a point of introducing new employees to the likes of Brown so that they knew who to talk to if there were issues that they did not want to discuss "with supervision and so forth". 171 The CFMEU submits that it is open to conclude that Brown was designated by CBI but not the CFMEU to deal with all their employees in which case Brown was performing the functions given to him by CBI. This it submits is inconsistent with the definition in s 69(1)(d) of the BCII Act and s 826(2)(d) of the WR Act because he was not performing the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity. Instead the CFMEU submits Brown was dealing with an employer on behalf of the employees of that employer at the request or acquiescence of the employer. However, since he did not limit himself to just CFMEU members, he falls outside the provision. 172 Upton denied introducing Brown to Windus as the CFMEU delegate. Even if I accepted Windus' evidence it would not be determinative. 173 I accept the submissions of the CFMEU. Brown acted, I find, for CBI employees as their representative, including, but extending beyond, CFMEU members who were CBI employees. He was neither an officer nor an agent of the CFMEU: s 69(1)(b) of the BCII Act. Whilst he was a member of the CFMEU, he did not perform the function of dealing with CBI on his own behalf and on behalf of CFMEU members acting in that capacity: s 69(1)(d) of the BCII Act. Rather, I find that he was acting in his capacity as an employee representative. He did not act for CFMEU members as such but rather for CBI employees, some of whom as it happened were CFMEU members. I find that his conduct from time to time, as I have described it, was not the conduct of the CFMEU.

[57]

Windus 175 Windus was employed by the AMWU as an organiser. The AMWU do not admit the allegation that Windus was acting within his capacity or within the scope of his actual or apparent authority. 176 Windus was present at the meeting with CBI employees and CBI management on 1 October 2008. He was sent back to the Site on 13 October 2008 expressly at the direction of McCartney, specifically for the purpose of the strike action. He was present at meetings with CBI employees following his arrival at the site, all of which were in the knowledge of the AMWU, because he kept in constant communication. I find that he was, at all relevant times, acting within the scope of his actual or apparent authority. 177 From the following conduct, the inference is sought that the AMWU did not oppose the strike: (a) Johnson, who attended the employees meeting on 13 and 14 October 2008, did not give evidence, and Jones v Dunkel is asserted; (b) Windus declined to attend the meeting on 14 October 2008 in circumstances of his evidence that raise serious questions about his role; (c) Windus, later, told a meeting that, while the union advised a return to work, "at the end of the day the Union will support whatever its members decide to do" which was said following express instructions from the State President to say just that. Duffy was not called to refute that evidence, and the Commissioner invokes Jones v Dunkel. Windus was not cross-examined on the point, invoking Browne v Dunn; and (d) Holdsworth failed to disassociate the AMWU from Upton when Upton told a meeting that the union was democratic and he could not dictate that they return to work. 178 There is no pleaded allegation that the AMWU did not oppose the strike. Whilst there are questions about Windus' failure to attend the 14 October employee meeting there is nothing pleaded as to this by the Commissioner going to any alleged contravention. So much too is the case concerning the submissions as to what Windus said to a later meeting or the allegations concerning Holdsworth. There was no reason to call Johnson or Duffy or Reynolds or any employee and no Jones v Dunkel point arises absent relevant and admissible evidence which required a response from them. There was none. That Brown did not give evidence does not assist the drawing of inferences adverse to the CFMEU. I have found that he was neither a delegate nor representative of the CFMEU. The respondents ought to have to meet only the case pleaded against each of them respectively.

[60]

Section 48 of the BCII Act 181 Section 48(2) of the BCII Act extends liability for contravention of a civil penalty provision to a person who was "involved in" the contravention. That person is, by reason of s 48(2) of the BCII Act, treated as having contravened the provision. Section 48(2) defines "involved in". The person is "involved in" a contravention if, and only if, that person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. 182 Apart from the addition of the words "by act or omission" in para (c) of the definition, s 48(2) of the BCII Act defines "involved in" in terms similar to the definition in s 75B of the Trade Practices Act 1974 (Cth) (TPA). 183 In respect of each contravention alleged by the Commissioner, the involvement of the person in the contravention is alleged to be constituted by being, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention or aiding the conduct or counselling the conduct. 184 In order to be "knowingly concerned in" or a "party to" the contravention, the person must: (a) be an intentional participant, the intent being based upon knowledge of the essential elements of the contravention; and (b) be linked in purpose with those perpetrating the acts which constitute the contravention, by act or omission, by participating in, or assenting to, the contravention. 185 The phrase "by act or omission" is not part of the definition in s 75B of the TPA. In addition to specific acts, the Commissioner relies upon various omissions to constitute involvement. 186 The accessorial liability provision in s 48(2) of the BCII Act operates even in circumstances where primary liability is imposed upon the union by reason of the operation of s 69(1)(d) of the BCII Act or s 826(2) of the WR Act. Those provisions do not seek to make the union vicariously liable. Rather, conduct of the employee, agent or other person within the scope of s 69(1) of the BCII Act or s 826(2) of the WR Act is conduct of the corporate entity. 187 The provision in s 48(2) that applies to a person who has aided, abetted, counselled or procured a contravention is imported from the criminal law and is to be construed as having the same meaning in the context of the BCII Act as that concept has in the criminal law. It is necessary to prove the requisite intent, including the knowledge of the matters which go to make up the contravention, but not necessarily including knowledge that those matters amount to a contravention. 188 Section 48(2) is in the same form as the accessorial provision considered by the High Court in Yorke v Lucas (1985) 158 CLR 161 namely, s 75B of the Trade Practices Act 1985. The authority of Yorke was established before the enactment of the BCII Act and the WR Act, and Parliament is taken to have appreciated its effect. 189 In Yorke the High Court referred to the reasons of Wilson, Deane and Dawson JJ in Giorgianni v The Queen (1985) 156 CLR 473 as stating what was required to establish aiding abetting etc in the criminal law (at p 475/p 665): The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. 190 In this case, proof is required for the individuals Upton, Brown, Windus and Johnson that each actually knew at the time of his acts or omissions what were the facts constituting the contravention. Constructive knowledge is insufficient: Compaq Computer Australia Pty Ltd v Merry, Howard & Ors (1998) 157 ALR 1 at 5 referred to approvingly by a Full Court of this Court in Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 at [10]. 191 I agree that there is no reason in principle or policy to require any lesser standard of proof for accessorial liability under a statute regulating industrial relations, as opposed to trade practices. If anything, proof of the necessary mental state to accompany contravening conduct sought to be penalised, rather than remedied through compensation, ought to meet a more rigorous standard. 192 The requisite actual knowledge must be before the conduct alleged to constitute the primary contravention occurs, and then possessed of that knowledge the person acts anyway: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v John Holland Pty Ltd [2009] FCA 274 at [45]. It is sufficient if the knowledge is of proposed contravening conduct: see analogously Sent v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201 at 207 (per Smithers J; Sweeney J concurring). 193 An accessory must not only have actual knowledge of the misleading conduct but in addition should, in some positive way be associated with the primary contravention through the commission of positive acts. The mere fact of awareness of impending misconduct does not, of itself, raise a case of involvement in that misconduct. An exception is where a duty arises to do something positive: Sent v Jet Corporation of Australia Pty Ltd at 207-208. 194 The principles concerning accessorial liability are found in Construction Forestry Mining and Energy Union v Clarke (2007) 164 IR 299 at [26], which provide that regardless of the precise words of an accessorial provision such as s 48(2) of the BCII Act or s 728(2) of the WR Act, liability depends upon: (a) the accessory associating himself or herself with the contravening conduct, being linked in purpose with the perpetrators; (b) there being "in truth" an implication or involvement by the accessory in the contravention; or (c) a participation in, or assent to, the contravention on the part of the accessory.

[62]

Section 69 of the BCII Act 196 The Commissioner asserts that the conduct of Upton and Brown is the conduct of the CFMEU, by reason of s 69 of the BCII Act and, to the extent necessary, the common law. 197 The Commissioner relies on ss 69(1)(b) and 69(3) of the BCII Act to attribute the conduct of Upton to the CFMEU. 198 The Commissioner relies on ss 69(1)(b) and (3) of the BCII Act, alternatively s 69(1)(d) of the BCII Act to attribute the conduct of Brown to the CFMEU. I have already concluded that these submissions have failed. 199 The conduct of Windus and Holdsworth, being employed organisers, is the conduct of the AMWU, without more. 200 Subject to s 69(2) of the BCII Act, s 69(1) of the BCII Act takes to be conduct of a building association, the conduct of an officer or agent acting in that capacity (s 69(1)(b)); and the conduct of a member who performs the functions of dealing with an employer on behalf of the member and other members, acting in that capacity (s 69(1)(d) of the BCII Act). 201 Section 69 of the BCII Act operates to extend the category of conduct which is, for the purposes of the BCII Act, to be treated as conduct of the building association. The purpose of the provision is to prevent a building association permitting to be done, by its servants, agents, delegates or other representatives, that which the association is prohibited from doing itself. This object is achieved in two different ways. 202 The conduct of an employee of an association is taken to be that of the association, which is strict liability; the BCII Act provides no defence for the association if the officer or agent is liable. 203 Where the actor is not an officer or agent, but does fall with s 69(1)(d) of the BCII Act, the association's liability is subject to s 69(2) of the BCII Act. The association will not fall within s 69(1) of the BCII Act if any of the listed bodies or persons has taken reasonable steps to prevent the action alleged. 204 Section 69 of the BCII Act imposes a direct and principal liability on the building association. It is not intended to exclude the operation of the common law principles applicable to primary corporate liability in respect of a corporation's own acts. 205 A building association will be responsible for conduct of an officer or agent "acting in that capacity" under s 69(1)(b) of the BCII Act. Consistent with the authorities in relation to s 826(2) of the WR Act, it extends to an officer or agent engaging in conduct within the actual or apparent scope of his role. 206 Section 69(1)(b) of the BCII Act is not limited to actions shown to have been done with the AMWU or CFMEU's authority. 207 As with the interpretation afforded to s 826(2) of the WR Act, a building association cannot escape liability by showing that the officer or agent was not acting within the rules of the building association when engaging in the relevant conduct. It is immaterial that the building association may have directed the officer or agent not to engage in the conduct, or was unaware of the conduct that was engaged in. Therefore, industrial action contrary to the rules of a building association is still taken by s 69(1)(b) of the BCII Act to be conduct of the building association. 208 It is no answer for the AMWU or CFMEU to say that its rules deny Upton (CFMEU) or Holdsworth or Windus (AMWU) the authority to be involved in strikes, and no answer to say that each was otherwise without authority to be involved. The words "acting in that capacity" are intended to exclude conduct extraneous to the person's role. If the BCII Act intended s 69(1) of the BCII Act to apply only upon proof that an officer or agent acted with authority, the section would have no utility above ordinary principles of agency and corporate liability and indeed would contract those principles. I accept these submissions made by the Commissioner. 209 The definition of "officer" in s 69(3) of the BCII Act includes a "delegate" or "other representative". "Delegate" is not defined, and in one authority is confined to someone who is appointed as a delegate in accordance with the rules of the organisation. However, the Commissioner submits that "delegate" cannot assume the meaning contained in the rules of the particular union. Rather, it is either a term of ordinary English usage or a term peculiar to the industry. 210 The two expressions that had currency were "delegate" and "employee representative". Whichever is used, one common aspect is that representation of employees' concerns is confined to a particular union's membership. A "delegate" could be described as a "union's delegate", in the sense that the delegate does not purport to represent persons unless they are members or eligible to be members of the particular union. 211 However, the Commissioner submits that under s 69 of the BCII Act, the expression "employee representative" does not imply representation only of a particular union membership. Rather, he submits, the employee representative is one who (a) is himself a member of a union; (b) represents himself and other members of the same union; but (c) is not excluded merely because he also represents non-members. I do not accept this last submission. It must be established that the member engaged in conduct in the capacity of acting for Union members as such. 212 The Commissioner's submission is that, under s 69 of the BCII Act, a delegate is more closely connected with the union: s 69 allows a defence by the union under s 69(2) for an employees' representative, but not for a delegate. That is to say, a delegate is treated in this respect in the same way as an employee of the union. 213 Mr Johnson has admitted that he was a delegate. Accordingly, the Commissioner, in respect of the associated allegations against the AMWU, relies on s 69(1)(b), alternatively s 69(1)(d). 214 Section 69(1)(d) of the BCII Act deals with a member of a building association who performs the function of dealing with an employer on behalf of the member and other members of the building association, acting in that capacity. Its purpose is to enforce an obligation on the industrial association to exercise proper control over its members in the conduct of their industrial relations. It extends to the conduct of all members of building associations where the conduct may give rise to the contravention of a provision of the BCII Act. The connection lies in the representation of the members in respect of the protection and promotion of their interests in matters concerning their employment. It concerns their employment with a particular employer and representation at the workplace level. 215 The CFMEU submits that it has no derivative liability for Brown's conduct. 216 I have already rejected the Commissioner's submission that Brown is established as a person to whom s 69(1)(d) of the BCII Act applies.

[75]

Industrial action before nominal expiry of agreement: s 494 WR Act 239 The Employee Respondents (including Brown and Johnson) are liable, as is admitted by all parties. 240 The Commissioner pleaded that Upton and Windus assisted and were knowingly concerned in that conduct under s 728 of the WR Act, in that each knew the contents of the Union Collective Agreements, since each Union was bound by it, each person knew the essence of the redundancy claim which claim arose from the agreement, from which it necessarily follows that its nominal expiry had not passed (even if on the CBI employees' argument that Phase V had finished). However, at trial the Claim under this head was, correctly, withdrawn as against Windus. Windus was not bound by the AMWU Collective Agreement. 241 The Commissioner also allege that the CFMEU and AMWU engaged in the same conduct by virtue of s 826(2) of the WR Act. These allegations are denied. 242 The Commissioner pleads his case against those parties as follows: Windus Windus breached s 494(1) of the WR Act in circumstances where: (a) he organised and/or engaged in the October industrial action through the conduct alleged above; (b) the AMWU Collective Agreement was in operation at the time of the industrial action and its nominal expiry date had not passed; and (c) he was an officer or employee of the AMWU, which was covered by the AMWU Collective Agreement, and was acting in that capacity. AMWU The AMWU breached s 494(1) of the WR Act in circumstances where: (a) it engaged in the October industrial action through the conduct alleged above of Windus, and Johnson who were officers, employees or agents of the AMWU knowingly acting within the scope of their actual or apparent authority: (b) the AMWU Collective Agreement was in operation at the time of the industrial action and its nominal expiry date had not passed; and (c) the AMWU was covered by the AMWU Collective Agreement. Upton Upton breached s 494(1) of the WR Act in circumstances where: (a) he organised and/or engaged in the October industrial action through the conduct alleged above; (b) the CFMEU Collective Agreement was in operation at the time of the industrial action and its nominal expiry date had not passed; and (c) he was an officer or employee of the CFMEU, which was covered by the CFMEU Collective Agreement, and was acting in that capacity. CFMEU The CFMEU breached s 494(1) of the WR Act in circumstances where: (a) it engaged in the October industrial action through the conduct alleged above of Upton, who was-at all material times either an officer, employees or agents of the CFMEU and Brown, who was at all material times an agent of the CFMEU, knowingly acting within the scope of their actual or apparent authority; (b) the CFMEU Collective Agreement was in operation at the time of the industrial action and its nominal expiry date had not passed; and (c) the CFMEU was covered by the CFMEU Collective Agreement. 243 I find the alleged contraventions established but again limited to the relevant conduct I have described above concerning the 13 October meeting with the CBI officers, as against Upton and thereby also the CFMEU as well as the AMWU by reason of Johnson's conduct.

[76]

Breach of issue resolution procedure and s 719 of WR Act 244 The Commissioner contends that the Employee Respondents did not follow the Issue Resolution Procedure (IRP) in the Union Collective Agreements - they went on strike instead of (ultimately) engaging arbitration. I find that they breached the relevant provisions and for reasons which follow are liable to a penalty under s 719(1) of the WR Act. 245 Under s 719(1) of the WR Act an eligible court may impose a penalty if: (a) The person is bound by an applicable provision; and (b) The person breaches the provision. 246 Section 717 states an "applicable provision" includes a Collective Agreement. Windus is not bound by this Collective Agreement. Section 727(1)(a) states division three, which includes assessorial liability under s 728, applies to s 719. 247 Moreover, the Commissioner does not plead by way of relief in SOC [86] that Windus breached the relevant cll 8, 9 and 39(14) of AMWU Collective Agreement. Nor is any declaration sought against Windus in this regard, although it is sought against the employees. 248 The Commissioner submits that Johnson, Upton and Brown assisted and were knowingly concerned in that conduct under s 826(2) WR Act: each knew that the Union Collective Agreements contained an IRP, which excluded strike action; each knew the contents of the Union Collective Agreements, since each union was bound by it, each person knew the essence of the redundancy claim which claim arose from the agreement, and Luskan on 13 October 2008 brought to the attention of Upton, Brown and Johnson the need to follow the IRP in the Union Collective Agreements. I find that Luskan did this. These allegations are denied. I find that Upton and Johnson but not Brown, were involved but only to the extent of their conduct at the meeting on 13 October 2008 with the CBI officers. However, Brown is liable in any event as an employee. 249 The CFMEU and the AMWU respectively are thereby accessorily liable for the conduct, respectively, of Upton and Johnson in respect of this breach. 250 The Commissioner pleads that the respondents, by engaging or being involved in the October industrial action, were in breach of the Collective Agreements in circumstances where: (a) each of the Collective Agreements contained a relevantly identical IRP; (b) the IRP provided for various steps to take in the event of an issue, complaint or problem arising in relation to work under the Collective Agreements; (c) an issue, complaint or problem in relation to work under the Collective Agreements arose (in relation to the Representation, the Claim and the Threat); and (d) the steps in the IRP were not followed, with work not continuing without any form of stoppages or strikes (the October industrial action). 251 The Commissioner then pleads that the following respondents were in breach as follows: (a) The employees bound by the AMWU Collective Agreement, by engaging in the October industrial action, as alleged, without first following the steps of the IRP set out in the AMWU Collective Agreement, failed to comply with cll 8(3), 9 and 39(14) of the AMWU Collective Agreement and thereby are liable to penalties under s 719(1) of the WR Act. (b) The AMWU, by being involved in the October industrial action, as alleged, without first following the steps of the IRP set out in the AMWU Collective Agreement, failed to comply with cll 8(4) and 9 of the AMWU Collective Agreement and thereby are liable to penalties under s 719(1) of the WR Act. (c) The employees bound by the CFMEU Collective Agreement, by engaging in the October industrial action, as alleged, without first following the steps of the IRP set out in the CFMEU Collective Agreement, failed to comply with cll 8(3), 9 and 39(14) of the CFMEU Collective Agreement and thereby are liable to penalties under s 719(1) of the WR Act. (d) The CFMEU, by being involved in the October industrial action, as alleged, without first following the steps of the IRP set out in the CFMEU Collective Agreement, failed to comply with cll 8(4) and 9 of the CFMEU Collective Agreement and thereby are liable to penalties under s 719(1) of the WR Act. 252 Clauses 8(3) and (4), 9 and 39(14) of each of the AMWU and CFMEU Collective Agreement relevantly provide as follows: SECTION 2: OBLIGATIONS TO THE PROJECT 8. OBLIGATIONS OF THE PARTIES AND PERSONS BOUND (1) . . . . . . (2) . . . EMPLOYEES (3) Employees bound by this Agreement are obliged, in relation to work covered by this Agreement, to: • • • • • • • Resolve all complaints or disputes in accordance with the procedures for resolving issues or if the issue is a safety concern, in accordance with the procedure for resolving safety concerns contained within this Agreement. UNION (4) The Union bound by this Agreement is obliged, in relation to work covered by this Agreement which is to be performed by members of the Union, to: • • • • Resolve all complaints or disputes or issues (where invited by a member to play a representative role) in accordance with the procedures for resolving issues or if the issue is a safety concern, in accordance with the procedure for resolving safety concerns contained within this Agreement. . . . 9. ISSUE RESOLUTION PROCEDURE Consistent with the objectives expressed in Clause 2 - Objectives of this Agreement, the Parties and Persons Bound by this Agreement commit to resolve complaints and problems using the Issue Resolution Procedure contained at Appendix 4 of this Agreement. . . . SECTION 6: CONTRACT OF SERVICE 39. CONTRACT OF SERVICE . . . GENERAL CONDITIONS . . . (14) Employees shall comply with all lawful directions given by the Company and comply with all Site policies and procedures applicable to the Project work. . . . 253 The AMWU made the following submissions: (1) . . . (a) Clauses 8(4) and 9 (read with Appendix 4) of the AMWU Collective Agreement, properly construed, does not impose an enforceable obligation on the AMWU so as to expose it to the imposition of a penalty in the event of non-compliance; and (b) In any event, no acts or omissions of the AMWU can be properly said to give rise to a failure to comply with cll 8(4) and 9. (2) At a general level, the principles attending the construction of industrial instruments are well settled. Specifically: (a) The textual meaning of a given provision in an industrial instrument remains the starting point for its construction, however (and consistently with the construction of statutes) industrial context and purpose are also relevant in construing the language chosen by parties who have struck an agreement to regulate employment. (b) Narrow or pedantic approaches to the interpretation of an industrial instrument are misplaced. (c) Meanings which avoid inconvenience or injustice may reasonably be strained for. Kucks v CSR Ltd (1996) 66 IR 182 at 184 applied in, most importantly, Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, and see also CEPU v QR Ltd (2010) 268 ALR 514 at [39] (sustained on appeal as to liability: QR Ltd v CEPU [2010] FCAFC 150.) (3) Notwithstanding those general principles, not every provision in an industrial agreement is to be taken as intended to impose an enforceable obligation on one party or another. It is not every non-compliance with a given provision in an industrial instrument that will expose that party to the imposition of a penalty. Some provisions may be characterised as hortatory or merely reflective of a desirable policy or end without necessarily attracting penal consequences. Other provisions may be best characterised as facilitative in nature when one has regard to their operation in a practical industrial relations context: Reeves v MaxiTRANS Australia Pty Ltd [2009] FCA 970 at [19]; Bell v Minister for Health [2006] FCA 134 at [20]. (4) Section 719(1) of the WR Act confers a discretion on an eligible court (such as this Court) to impose a penalty in accordance with Part 14 Division 2 on a person if: (a) the person is bound by an applicable provision; and (b) the person breaches the provision. (5) The chosen language of "breaches" employed in s 719(1)(b) directs attention to the well established doctrine of statutory interpretation which recognises a clear dichotomy between: (a) on the one hand, true breaches which found a conclusion of invalidity or liability; and (b) on the other hand, a mere non-compliance with a given provision which does not give rise to invalidity or liability, or which otherwise has some lesser consequence at law. (6) Thus in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [92] the High Court noted that traditionally courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in a procedural condition for the exercise of such a statutory power or authority. On that traditional classification, the two categories were seen as being concerned with provisions truly mandatory in character, as opposed to provisions that are merely directory. If, on that now discarded nomenclature, a statutory condition is properly to be characterised as merely directory, an act done in breach of it does not result in invalidity. (7) The High Court disavowed the continued use of the "elusive distinction" between directory and mandatory requirements and, for that matter, the division of directory acts into those which have substantially complied with a statutory command and those which have not. It propounded as the better test, and one which now governs the common law of Australia concerning statutory interpretation, in determining the question of validity of an act done in breach of a statutory provision as being to ask the following question (at [93]): was it a purpose of the legislation that an act done in breach of the provision should be invalid? (8) It is accepted that the cause of action, and hence the nature of the ultimate question before the High Court in Project Blue Sky were different to the present circumstances. The Court was concerned with the question of whether a failure to comply with s 160 of the Broadcasting Services Act 1992 (Cth) (requiring the respondent to perform its functions in a manner consistent with Australia's international obligations) gave rise to invalidity of a provision of an Australian Content Standard for television programming made under that primary legislation. (9) However, the analogy with the operation of s 719 of the WR Act and the susceptibility of a person to pecuniary penalties in the event of non-compliance with a given provision of an industrial instrument is a close one. Just as not every provision of an industrial instrument ought be construed as being intended to give rise to obligatory requirements that ground in penal consequences in the event of non-compliance (as recognised by Judges of this Court in Reeves and Bell), it is germane to ask whether it can fairly be said to be a purpose of a given provision that an act or omission that fails to comply with, or in the literal sense "breaches" a provision should expose one to a pecuniary penalty. (10) The nature of cll 8(4) and 9 of the AMWU Collective Agreement are properly characterised as being facilitative rather than imposing a norm or standard of conduct which, if not met, ought give rise to the imposition of a penalty. No point is taken as to the AMWU being, in a general sense, a "Person Bound" by the AMWU Collective Agreement (see language employed at heading to cl 8 and preamble to cl 8(4); see further cl 9 and preamble to Appendix 4, cl (1)). (11) The question still remains very much open whether, despite the AMWU being generally bound by the Collective Agreement, then (adapting the "better test" propounded in Project Blue Sky) there can be fairly discerned, a purpose of the agreement struck, and given effect to in the Collective Agreement that an act or omission that does not comply with the text of cll 8(4) or 9 exposes the AMWU to a civil penalty. (12) The immediate context in which cl 8(4) appears is important. It is one of a series of provisions within the overall rubric expressed as "Obligations to the Project". The first such obligation is on the subject of "Project Consultation and Communication". It is concerned with achieving a harmonious relationship and ensuring the maintenance of the construction program set for the Project. The expressed "obligation" is, in its operative content, expressed as an "encouragement" upon the parties and persons bound to contribute to that ongoing consultation process. (13) The second expressed "obligation" is one of equal employment opportunity and the taking of steps not to condone, and to otherwise deal with, ills in the workplace such as harassment, bullying, discrimination and the like. (14) Laudable as the goals and ideals are as expressed in the first two sub-clauses of cl 8, it is difficult to characterise the content of the provisions as being truly obligatory in character. To determine whether any given conduct or omission was truly directed towards achieving a harmonious working relationship would be extremely difficult to achieve with any precision. Moreover equal opportunity in employment and related matters are topics dealt with fulsomely through legislative frameworks which are themselves capable of enforcement through a range of statutory remedies. The text of cl 8(2) does not readily lend itself to enforcement by means of imposing a punitive sanction. (15) It is against that background that sub-cl 8(4) falls to be construed. Requirements to "ensure" that officials and other officers of the AMWU are "fully aware" of the terms of the Certified Agreement and "committed to" observing those terms are extremely broad in their potential import. Even more so is the requirement to "ensure" that officials, etc are "aware of and committed to" the objectives of the Certified Agreement. (16) To suggest any given absence of "full awareness" on the part of an officer of any given provision of the Collective Agreement is capable of giving rise to a civil penalty upon the AMWU for a "failure" so to ensure would be a highly oppressive operation of sub-cl 8(4). The better construction, compatible with the principles summarised above, is that the entirety of cl 8, including sub-cl 8(4) is one exhorting parties bound to reach a desirable, aspirational standard of industrial conduct. (17) The language of "commitment" does not, when proper account is taken of sensible industrial reality and the avoidance of a pedantic approach to interpretation, carry the proper meaning of commitment in the sense of imposing an obligation enforceable under s 719. Put slightly differently, this is a case where the legal meaning departs from the grammatical meaning: Project Blue Sky at [78] (18) Just as cl 8 is expressed in terms of "obligations" and "commitment" (but, as submitted, ought be characterised as being facilitative rather than truly obligatory), cl 9 likewise expresses that the Parties and Persons Bound by the AMWU Collective Agreement "commit to resolve complaints and problems" using the IRP in Appendix 4. Again, the surrounding context aids an industrially realistic interpretation. The "commitment" in the terms of cl 9 is itself expressed to be consistent with the Objectives in cl 2 of the agreement. (19) Clause 2 advances a range of desirable and sensible aims to establish conditions of employment and workplace processes. Specifically it expresses that the Parties and Persons Bound "commit to" a "continuing process of identifying activities" to improve cost efficiency, including "taking a positive approach to overcoming inefficiencies". These are properly to be construed as aspirational in nature. (20) The provision immediately following cl 9 concerns an Employee Counselling and Discipline Procedure. Clause 11(1) and (2) in turn deal with a procedure for resolving safety concerns. Overall, the subject matter, language and generality of cll 8-11(2) inclusive are facilitative in nature rather than indicative of a set of norms or standards susceptible to enforcement through civil litigation and the obtaining of punitive sanctions. Numerous other provisions of the AMWU Certified Agreement are different in their character and mode of expression. Sub-cl 11(3) for example, imposes a clear, specific requirement on the company to issue to each Employee certain specified protective clothing. Clause 12(1) provides for minimum wage rates payable to employees. Many other examples may be identified. (21) The staged process of the IRP itself has the purpose of achieving an agreed or conciliated resolution of a vast range of matters - "all issues, complaints and problems arising in relation to work under" the Collective Agreement: cl (1) of Appendix 4. Ultimately, jurisdiction is conferred, by the parties' agreement, on the AIRC to exercise processes of conciliation and, in turn, arbitration under the WR Act. Those processes are provided for in some detail - see cll (4)-(8) and (9)-(15) of Appendix 4 respectively. (22) Overall, the nature of the IRP, and purpose to be inferred, is that it is designed to facilitate agreed resolution of workplace issues. The peril of a punitive sanction is inimical to fostering a workplace culture of conciliation and co-operative industrial relations. The language of "commitment" must be construed in light of that purpose and context and read down accordingly. (23) It is acknowledged that in Van Efferen v CMA Corporation Ltd (2009) 183 IR 319 Tracey J held that non-compliance with a grievance procedure in an Australian Workplace Agreement grounded a claim for damages under s 721 of the WR Act. Aside from the character of that enforcement proceeding being different to one which seeks a pecuniary penalty under s 719, the point presently taken does not appear to have been advanced in the same manner, if at all, before Tracey J. (24) Specifically in respect of the employees bound by the AMWU Agreement, cll 8(3) and 39(14) are also invoked by the Commissioner. In light of all of the context canvassed above, nothing in the language of those provisions justifies a construction that the purpose of the parties in striking the Collective Agreement was to create a susceptibility to punitive sanctions. (25) Further and in any event, the language at the heart of the IRP at cl (2) of Appendix 4 requires of employees, their nominated representatives and certain specified Managers to take certain steps to facilitate an agreed resolution of problems at the workplace. Where the issue remains unresolved, one or more of those persons involved, or the Company, is empowered to "refer the issue" to the AIRC: cl (2) Step 4. The powers and processes of the AIRC then become operative to conciliate and, failing resolution through conciliation, arbitrate the issue in dispute. (26) Even on the terms of the IRP, no requirement is expressed on the AMWU, save perhaps to "maintain the integrity" of the Certified Agreement: cl (3). (27) Thus even if cl 9 read with Appendix 4 imposed a true obligation on any of the Parties Bound, no act or omission of the AMWU constitutes a breach for the purposes of s 719(1)(b) capable of sounding in a pecuniary penalty. Contrary to para 83 of the Further Amended Statement of Claim, there were no applicable "steps" that the AMWU failed to "follow". 254 The CFMEU and Upton endorse and adopt these submissions of the AMWU and Johnson insofar as the CFMEU and Upton submit that the IRP in the CFMEU Collective Agreement were not intended to impose an enforceable obligation on one party or another so as to give rise to a civil penalty liability for non-compliance. 255 I do not accept the submissions of the affected respondents. The terms of each of the relevant provisions are expressed as "Obligations of the Parties and Persons Bound". The expressions "Parties and Persons Bound" is defined in cl 3 of each Agreement as the CFMEU/AMWU, CBI and the Employees of CBI employed in the classifications set out in Appendix 2. Clauses 8(3) and (4) oblige the Employees and the relevant Union respectively to resolve all complaints or disputes or issues in accordance with the IRP. This procedure is contained in Appendix 4 to each of the Agreements. This provides for a stepped process of discussion between the Employee(s) and increasing levels of management and, failing settlement, by reference of the issue to the AIRC for consideration and later in certain circumstances to arbitration. 256 These are core provisions of the respective Collective Agreements. They are not merely hortatory or encouragements towards compliance. They are contractual obligations arrived at securing harmony in the workplace and the resolution of disputes without resort to industrial action. Breach of these obligations renders the contravener liable to a penalty under s 719 of the WR Act.

[80]

Conclusions 266 I have found that in addition to the admitted liability of the Employee Respondents, including Brown and Jonson in that capacity, that the Commissioner has established the following alleged contraventions but not otherwise: (a) Upton, by his conduct in making the Statement and each of Brown and Johnson by their conduct in not disassociating themselves from the Statement took unlawful industrial action by virtue of s 48 of the BCII Act at the meeting with CBI officers on 13 October 2008 (the 13 October meeting with CBI) and thereby contravened s 38 of the BCII Act. (b) Each of the CFMEU and the AMWU took unlawful industrial action by virtue of s 69 of the BCII Act in respect of the conduct of Upton and Johnson respectively at the 13 October meeting with CBI and thereby contravened s 38 of the BCII Act. (c) The AMWU, by virtue of s 826(2) of the WR Act breached s 494(1) of the WR Act through the conduct of Johnson at the 13 October meeting with CBI. (d) Upton breached s 494(1) of the WR Act by his conduct at the 13 October meeting with CBI. (e) The CFMEU, by virtue of s 826(2)(a) of the WR Act breached s 494(1) of the WR Act through Upton's conduct at the 13 October meeting with CBI. (f) The CFMEU, through Upton's conduct at the 13 October meeting with CBI, breached the relevant provisions of a Collective Agreement and thereby became liable to a penalty under s 719 of the WR Act. (g) The AMWU through Johnson's conduct at the 13 October meeting with CBI, breached the relevant Collective Agreement and thereby became liable to a penalty under s 719 of the WR Act. 267 I am satisfied that declarations in respect to the contraventions found ought be made. 268 The issue of whether any penalties and, if so, in what amounts, should be ordered, falls to be determined in due course. 269 I will direct the parties to bring in a minute of proposed declarations and orders within 14 days to reflect the conclusions contained in these reasons and failing agreement there will be liberty to the parties to apply. I will also hear the parties on the question of costs. I certify that the preceding two hundred and sixty-nine (269) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

[81]

Associate: Dated: 22 August 2011 SCHEDULE 1 MURRAY ARCARO Third Respondent MOSES ASIATA Fourth Respondent SERGIO BAEZ Sixth Respondent FRANCISCO BARRAZA Ninth Respondent ROLAND BAZAEZ Twelfth Respondent LEON BECKER Thirteenth Respondent PATRICK BIRD Sixteenth Respondent TERRANCE BISHOP Seventeenth Respondent ROMEO BONCATO Nineteenth Respondent DARREN BOXALL Twentieth Respondent ROBERT BROWN Twenty-Fifth Respondent SLAVO CEKLIC Twenty-Eighth Respondent KIM CHENNELL Twenty-Ninth Respondent JASON CHROMIAK Thirty-First Respondent ROBERT CLARK Thirty-Second Respondent DAVID COLLINS Thirty-Fourth Respondent DONALD COLYER Thirty-Fifth Respondent CHRIS CORRIGAN Thirty-Seventh Respondent ALLAN COUTTS Thirty-Eighth Respondent LANCE CRONIN Thirty-Ninth Respondent ANDREW CROSIER Fortieth Respondent RENEE CUMBERS Forty-First Respondent KENNETH CUMMING Forty-Second Respondent ALASTAIR CUNLIFFE Forty-Third Respondent AIDEN DAVEY Forty-Fifth Respondent SCOTT DEVINE Forty-Ninth Respondent CLAUDE DEVOS Fiftieth Respondent JOHN DICKSON Fifty-First Respondent NORMAN DODGIN Fifty-Third Respondent DANIEL DOYLE Fifty-Fifth Respondent MATT DRUMMOND Fifty-Sixth Respondent JOHANNES DUPLESSIS Fifty-Ninth Respondent WARWICK FAULKNER Sixty-Fourth Respondent VICTOR FAUSTINO Sixty-Fifth Respondent JOSE FERREIRA Sixty-Seventh Respondent GEORGE FITZROY Seventy-First Respondent DAVID FRASER Seventy-Second Respondent SALVATORE FRONTE Seventy-Third Respondent LOUIE GEROVICH Seventy-Eighth Respondent SIMON GILBERT Eighty-Second Respondent TAY GOODALL Eighty-Third Respondent DUANE GUYATT Eighty-Eighth Respondent JOHN HARVEY Ninetieth Respondent QUINTON HEBBARD Ninety-First Respondent ROBERT HOLT Ninety-Fourth Respondent STEPHEN HONICKE Ninety-Fifth Respondent ANDREW HORNBY Ninety-Sixth Respondent CHRISTOPHER HOWARD Ninety-Seventh Respondent VINCENT HOWES Ninety-Eighth Respondent NIKOLA IVKOVIC One Hundred and Third Respondent DENIS JACKSON One Hundred and Fourth Respondent MARK JOHNSON One Hundred and Sixth Respondent RICHARD JONES One Hundred and Seventh Respondent RAYMOND JONES One Hundred and Eighth Respondent TURIPI KARUTJINDO One Hundred and Tenth Respondent EMIN KECAP One Hundred and Eleventh Respondent SHAUN KEILY One Hundred and Twelfth Respondent LENKO KORLJAN One Hundred and Thirteenth Respondent DARRIN LANE One Hundred and Fifteenth Respondent SHANE LAVELLE One Hundred and Sixteenth Respondent CHRISTINE LEAHY One Hundred and Seventeenth Respondent CHARLIE LINESS One Hundred and Eighteenth Respondent CLIFFORD LOGAN One Hundred and Nineteenth Respondent KENNETH LOGAN One Hundred and Twentieth Respondent DONALD MACKAY One Hundred and Twenty-Third Respondent JAMES MANN One Hundred and Twenty-Fourth Respondent DENIS MARRINER One Hundred and Twenty-Sixth Respondent GHEORGHE MATEIU One Hundred and Twenty-Seventh Respondent GREGORY MCCARTHY One Hundred and Thirtieth Respondent PAUL MCGEADY One Hundred and Thirty-First Respondent RUSSELL MCGHIE One Hundred and Thirty-Second Respondent JOSEPH MCGRANE One Hundred and Thirty-Third Respondent ALASTAIR MCGUIRE One Hundred and Thirty-Fourth Respondent ALAN MCKENZIE One Hundred and Thirty-Fifth Respondent DEAN MEDLAND One Hundred and Thirty-Seventh Respondent BRAD MILLER One Hundred and Thirty-Eighth Respondent ROBERT MITCHELL One Hundred and Fourtieth Respondent PASKO MITRESKI One Hundred and Forty-First Respondent CHRISTOPHER MOORE One Hundred and Forty-Third Respondent LEONARD MUDRI One Hundred and Forty-Fourth Respondent DARREN NEWBY One Hundred and Forty-Sixth Respondent JAMIE NICOLAOU One Hundred and Forty-Seventh Respondent JAMES ODIAM One Hundred and Forty-Eighth Respondent BRIAN OTTAWAY One Hundred and Fifty-First Respondent MANDY-LEE PALMER One Hundred and Fifty-Second Respondent KEN PAYNE One Hundred and Fifty-Fifth Respondent LOUISE PFITZNER One Hundred and Fifty-Eighth Respondent RICHARD PHILLIPS One Hundred and Fifty-Ninth Respondent SHEREE PIKE One Hundred and Sixtieth Respondent JOE PIZZO One Hundred and Sixth-Second Respondent JOHN PRATT One Hundred and Sixty-Third Respondent DAVID ROSSITER-MCLAREN One Hundred and Seventieth Respondent PHILLIP ROWELL One Hundred and Seventy-First Respondent TOM SABINE One Hundred and Seventy-Third Respondent MICHAEL SANDERS One Hundred and Seventy-Fifth Respondent ANTON SAXER One Hundred and Seventy-Seventh Respondent KEITH SHIELD One Hundred and Eighty-First Respondent DALE SHIRTLIFF One Hundred and Eighty-Second Respondent DUSKO SOBOT One Hundred and Eighty-Fifth Respondent GRAEME SOWDEN One Hundred and Eighty-Seventh Respondent BRAD SPARK One Hundred and Eighty-Eighth Respondent JUSTIN STUURSTRAAT One Hundred and Ninety-Second Respondent WAYNE SUTHERLAND One Hundred and Ninety-Third Respondent ALLAN TAMAPUA One Hundred and Ninety-Fourth Respondent KEN THACH One Hundred and Ninety-Fifth Respondent MICHAEL TICEHURST One Hundred and Ninety-Sixth Respondent NEIL TOLLISON One Hundred and Ninety-Seventh Respondent BRYAN TONKIN One Hundred and Ninety-Eighth Respondent JOHN TUIVASA Two Hundredth Respondent GREG UCHWAL Two Hundred and First Respondent PETER VARIAKOJIS Two Hundred and Second Respondent MAREE WAINMAN Two Hundred and Third Respondent MITCHELL WEIR Two Hundred and Fourth Respondent MICHAEL WRIGHT Two Hundred and Sixth Respondent LESLEY YOUNG Two Hundred and Eighth Respondent PERO ZUVELA Two Hundred and Ninth Respondent CONSTRUCTION FORESTRY MINING AND ENERGY UNION Two Hundred and Eighteenth Respondent BRADLEY UPTON Two Hundred and Nineteenth Respondent AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION Two Hundred and Twentieth Respondent JOHN WINDUS Two Hundred and Twenty-First Respondent

Australian Building & Construction Commissioner v Abbott

At a glance

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Judgment (81 paragraphs)

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Cases Cited (24)

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