Second issue - whether the Commissioner has proved that Mr McDonald was involved in the contravention
151 Section 48(2) provides that for the purposes of Pt 1 of Ch 7 of the BCII Act, dealing with Enforcement, a person who is "involved in" a contravention of a civil penalty provision is treated as having contravened that provision. For this purpose, a person is "involved in" a contravention of a civil penalty provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
152 In this case, the Commissioner submits that Mr McDonald should be treated as having contravened s 38 because he did one or more of the "accessorial acts" described in s 48(2)(a), (b) and (c) by performing his role at the meeting at which the vote to strike was taken.
153 In Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 (Giorgianni) the High Court had occasion to consider the phrase "aids, abets, counsels or procures the commission of any misdemeanour" as it appeared in s 351 of the Crimes Act 1900 (NSW). Members of the Court emphasised that such provisions are designed to fix a secondary party or "accessory" with liability for the conduct of a primary party where they can be shown to be in some way "linked in purpose" with the person actually committing the crime: see, for example, Gibbs CJ at 479 - 480; Mason J at 493.
154 Gibbs CJ, at 487 - 488, concluded that no‑one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. In the course of coming to this summation, Gibbs CJ, at 480 - 488, explained that while some authorities suggested that each of the four words in question should be given their ordinary meaning it was apparent that the ordinary meanings of some at least of those words overlap and that sometimes the words are used in particular combinations or as a phrase, which is to be considered as a whole.
155 Similarly, Mason J, at 492, having regard to the common law and the legislative history of the four words, concluded that, once it is acknowledged that the terms are merely declaratory of the common law, it is to the common law concept of secondary participation, and not to the ordinary meaning of the words themselves, that regard must be had. In this regard, as indeed did Gibbs CJ in his judgment, Mason J referred to what Cussen ACJ said in R v Russell [1933] VLR 59 at 67:
All the words abovementioned are, I think, instances of one general idea that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission. (Emphasis added)
156 Mason J, at 494, emphasised that the "link in purpose" between the secondary party and the principal offender is not established where a person does something to bring about, or render more likely, the commission of an offence by another in circumstances in which, through ignorance of the facts, it appears to him to be an innocent act.
157 Wilson, Deane and Dawson JJ, in a joint judgment, in relation to the secondary participant's liability also said, at 506 - 507, that the accessory's participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his or her knowledge or belief extends only to the possibility or even probability that the acts which appear he or she is assisting or encouraging are such, whether he or she realises it or not, as to constitute the factual ingredients of the crime. If that were sufficient, the person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of their design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts.
158 Accordingly, in Construction Forestry Mining and Energy Union v Clarke (2007) 164 IR 299; [2007] FCAFC 87, at 308, the Full Court of the Federal Court said (in relation to the accessorial liability provisions of s 4(5) of the former Workplace Relations Act 2006 (Cth)):
Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct - the accessory should be linked in purpose with the perpetrators (Gibbs CJ in Giorgianni v R (1985) 156 CLR 473, at 479 - 480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500.) The words "party to, or concerned in" reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reed [1961] WAR 49 at 51; R v Tannous (1987) 10 SWLR 303, per Lee J at 307E - 308D (agreed with by Street CJ at 304 and Findlay J at 310)) or as put by Kenny J in Emwest Products Pty Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Union(2002) 117 FCR 588, at [34], must participate in, or assent to, the contravention. (Emphasis added)
159 Adopting these approaches, in Temple v Powell (2008) 169 FCR 169; [2008] FCA 714, Dowsett J at [46] found accessorial involvement of two union officials (including, co‑incidentally Mr McDonald, the current third respondent) made out by virtue of their "attendance at, and conduct of, the relevant meeting, and, perhaps, the subsequent notification to management of the proposed strike".
160 As to the phrase "knowingly concerned in" the contravention, used in s 48(2)(c), in Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 (Yorke), at 670, the majority of the High Court said that its proper construction:
requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention.
However, whilst knowledge of the essential elements of the contravention is necessary in order to attract liability it is not necessary that there be knowledge that they actually amount to a contravention: see Yorke at 667.
161 Accordingly, the relevant accessorial liability provisions relied on by the Commissioner here will not be attracted if the secondary party (Mr McDonald) acted in ignorance of the facts, as Mason J put it in Giorgianni. The Commissioner must establish to the requisite civil standard that Mr McDonald had knowledge of the essential elements of the contravention.
162 The Commissioner contends that by Mr McDonald speaking at the meeting on 15 July 2009, and exhorting a second and better vote immediately prior to a walk off, he "participated in, or assented to" the failure or refusal of the workers to attend for or perform work with the further purpose and objective of forcing Form 700 to sign the safety commitment. He was thus "linked in purpose" and did something to bring it about or render it more likely. By doing so, he was involved in that conduct for the purposes of s 48(2). His conduct met each of the descriptions of aiding, abetting, counselling, procuring, as well as inducing and being knowingly concerned in and being a party to the s 38 contraventions.
163 The Commissioner submits that the events of 16 July 2009 involving Mr McDonald cannot be said to be "disconnected or unrelated" to his involvement the previous day and given that there is no evidence from Mr McDonald, there is nothing to rebut that logical connection being inferred. The Commissioner submits that the events of 16 July 2009, resulting in the workers returning to their normal duties, indicates that Mr McDonald had ensured and controlled the action being taken on 15 and 16 July 2009 from the time it commenced, to the time it ended. The Commissioner submits that it is clear that Mr McDonald was in a position to influence whether the employees ceased or returned to work.
164 The Commissioner submits that there was no challenge and thus no reason to doubt the evidence of Mr McRae that the initial vote at the meeting, which when ultimately passed led to work stopping at the site, was well short of a majority and that Mr McDonald spoke up at the meeting, gesturing and saying in an angry voice, "stand up for yourselves", or words to that effect. These were plain words of exhortation in the face of a failure of a majority to vote in favour of the motion. The Commissioner submits this account of what happened was not contradicted in any way. If any meaning other than the ordinary meaning was to be given to these words, evidence for such an alternative interpretation is required, but not given.
165 The Commissioner submits that this exhortation plainly brought about the majority vote which resulted in the workers leaving the site and the action being taken. Had Mr McDonald not spoken or otherwise urged a different outcome, the vote would almost certainly have remained as it was - unfavourable. The motion would have failed and the action would not have taken place. Mr McDonald's input was practically indispensable.
166 The Commissioner also says that there is no reason to doubt that the action was taken because Form 700 had not signed the commitment and that the purpose of the action was to stop work until such time as the commitment was signed. The disruption to work was deliberate and intentional; as was the advancement of the claims in respect of the Form 700 workers only working with Form 700 committing to their own safety procedures, as well as more general safety rules, to their ultimate presumed benefit.
167 The Commissioner notes that in Stuart‑Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61; [2008] FCA 1426, at 64 [13], Tracey J was satisfied that s 48(2) was engaged by conduct which "raised for consideration, encouraged and supported a decision" at a meeting that an overtime ban be imposed. The Commissioner contends that Mr McDonald, in saying the words, or words to the effect of "stand up for yourselves" immediately before the second vote, did more than raise for consideration, and encourage and support the decision - he exhorted the workers to vote for the action to be taken.
168 The Commissioner further contends that Mr McDonald should be seen to have had knowledge of the essential elements of the contravening conduct. He necessarily knew the meeting and the walk off would prevent the workers from attending for or performing their building work and commented shortly afterwards about the condition necessary for them to return to work. He knew the purpose or purposes that motivated the meeting because he was present when the failure of Form 700 to sign the commitment was spoken about. He was close to the speaker. He was aware of the likely unlawful consequences because he warned that the action would be looked at, which in context was a reference to the ABCC. If he meant something more benign than that, he did not give evidence of that to rebut the meaning that can reasonably be inferred.
169 The respondents jointly submit that Mr McDonald was not involved in the action. They accept that Mr McDonald's liability depends upon him associating himself with the contravening conduct - which will be established if he is "linked in purpose" with the perpetrators.
170 The respondents emphasise, by reference to the evidence of Mr O'Neill, that Mr O'Neill on 15 July:
· Saw Mr McDonald at the site before he learned that there was going to be a meeting at 7am.
· Did not ask, nor did Mr McDonald offer any reason, why he was at the site that morning.
· Mr Hawkins told him that there was going to be a meeting of workers at 7am.
· Upon being told of this by Mr Hawkins, did not refuse permission for the meeting.
· Did not hear or see the meeting taking place.
· After the meeting, in a conversation between himself and Mr McDonald, Mr McDonald referred to the reason for the workers leaving the site and that there would be another meeting the following day at 7am.
171 I have, in recounting the events of 15 July 2009 above, found that the evidence of Mr O'Neill that Mr Hawkins had told him that Mr McDonald was going to be having a meeting at 7am, and the later evidence that Mr Young had told him, after the meeting, about the meeting "Mr McDonald had conducted" is evidence about which I entertain real doubt as to its accuracy. I have no doubt that there was mention made of the meeting in each case. But I consider there is real doubt that either Mr Hawkins or Mr Young used the words, when speaking to Mr O'Neill, that asserted, in effect, that the meeting was that of Mr McDonald.
172 The respondents accept the evidence of Mr Young that he arrived at the meeting late and did not hear what Mr McDonald had to say, but saw him gesturing before there was a show of hands.
173 As to the evidence of Mr McRae, who the respondents accept was at the meeting although had difficulty in hearing everything that was said, the respondents submit the evidence is vague and unsatisfactory on the crucial issue of the words actually spoken.
174 On behalf of the respondents, it is submitted that what can be gleaned from Mr McRae's evidence is that Mr McDonald:
· Did not convene or call the meeting together.
· Was not introduced to the meeting.
· Did not say anything about what the workers should do.
· Did not ask the workers to put up a resolution.
· Did not react to the proposal by the workers.
· Did not say anything about the need for that proposal.
· Did not say what the Union would view the workers as if they did not do something. Presumably meaning to submit that he did not cajole the workers to vote in a particular way.
175 The respondents submit that the only evidence adduced by the Commissioner as to the positive conduct of Mr McDonald came from Mr McRae to the effect that Mr McDonald:
· Was present at the meeting.
· Spoke briefly but was very muffled.
· Spoke only at the end of the meeting after a motion was put on the floor and a show of hands went up.
· At the end of it said something the substance of which was that this walk off would be "looked at".
176 Counsel for the respondents submit that as to precisely what Mr McDonald said Mr McRae could not recall and his evidence taken at its highest is reflected in the passage set out above where following an initial show of hands, Mr McDonald said something to the effect of "stand up for yourselves".
177 The respondents suggest that the high watermark of the Commissioner's evidence against Mr McDonald is:
· Mr O'Neill's evidence that Mr Hawkin's told him that Mr McDonald was going to be having a meeting on site at 7am.
· Mr McRae's evidence that Mr McDonald spoke with a raised voice, the substance of which was to "stand up for yourselves", and his words were angry.
178 The respondents submit that there is difficulty in acting upon this evidence, because:
· Mr O'Neill's evidence about what Mr Hawkin's allegedly says was "evasive, inconsistent and lacking credibility".
· Mr McRae's evidence about what Mr McDonald allegedly said is inherently unreliable by his own admission because he could not hear very well and could not recall exactly what was said.
· Mr McRae's evidence is the "gist" of what Mr McRae got from Mr McDonald's content, yet he was unable to describe the content such that most importantly his evidence on the issue is completely lacking in context.
179 The respondents submit there is no evidence that Mr McDonald did anything that might be construed as associating himself with the contravened conduct, linking himself in purpose with the workers' decision to walk off the job, implicating or involving himself in the contravention or participating in or assenting to their action.
180 The respondents further submit there is no evidence upon which it could be inferred that Mr McDonald called the meeting for the purpose of taking industrial action, since there is no evidence that Mr McDonald called the meeting.
181 Counsel further submits that there is no evidence to sustain an inference that Mr McDonald was linked in purpose with the workers in that he did not:
· Organise the meeting.
· Convene or call the meeting to order.
· Say anything about the reasons why the workers were meeting in the first place.
· Speak to any motion put up by anyone.
· Advise or recommend to the workers what they should do.
· Move any motion at the meeting.
· Facilitate the decision to walk off the job.
182 Counsel for the respondents submits the Court cannot speculate about these matters or draw adverse inferences on the strength of evidence that Mr McDonald was present and was heard to speak for less than a minute after a motion had been put up and voted upon, but that what he actually said or the context in which he said it are not known.
183 As to whether Mr McDonald may be said, in the words of s 48(2)(a), to have aided, abetted, counselled or procured the contravention, while one can take each of these verbs and analyse the conduct of Mr McDonald by reference to it, as authority indicates, all of the words are instances of one general idea, that the person charged as a principal in the second degree is in some way "linked in purpose" with the person actually committing the contravention and is by his words or conduct doing "something to bring about, or rendering more likely, such commission". However, if one were to focus on any particular verbs in this sub‑paragraph, probably one would focus on "counselled", and perhaps to a lesser extent, "procured". The ultimate question though is whether the role Mr McDonald played at the meeting linked him in purpose with the contravention.
184 As to s 48(2)(b), the particular question is whether Mr McDonald, by being at the meeting, standing near the speaker, making the exhortatory comments that he made, to "stand up for yourselves", thereby "induced" the contravention.
185 As to s 48(2)(c), the question is whether Mr McDonald was "knowingly concerned in" the contravention because he can be seen to have had knowledge of the essential elements of the contravening conduct and involved himself in the contravening conduct.
186 The answer to the question arising under each of s 48(2)(a), (b) and (c) tends to overlap with the other, relying as it does on the same or broadly the same set of facts.
187 The Commissioner's case is framed to reject any suggestion that Mr McDonald's role at and involvement in the meeting on 15 July was incidental to the actions of the workers, falling short of involvement in the contravention.
188 Dealing with the question of the organisation and conduct of the meeting of 15 July, I am not reasonably satisfied that Mr McDonald organised the meeting or conducted it. There is very little to permit such a finding to be made. Obviously he knew about the meeting. He was at the project site in time for the 7am meeting on 15 July and he fully expected to be at a further meeting the following day, having regard to the unchallenged comments he made to Mr O'Neill and others following the meeting, as well as his conduct on 16 July when he returned for a meeting at 7.15am that day. He then told Mr Young, in the presence of Mr O'Neill, that he was there to get the workers back to work. He then also requested that Mr Flecker (BMC's regional manager) attend the project site to meet with Mr Delaney. All of this evidence suggests that Mr McDonald was performing a role as a union official to assist workers where they required assistance but not necessarily that he had taken charge of a meeting at which industrial action might be proposed. I am not prepared to draw any inference based on these facts that Mr McDonald organised or conducted the meeting on 15 July.
189 As to how the meeting was organised and exactly who organised it, I am unable to say. Certainly I am unable to make any findings about that matter. However, the meeting obviously grew out of the BMC site meeting with sub‑contractors of 14 July at which Form 700 declined an invitation to sign the written commitment when requested to do so by Mr O'Neill, when all other sub‑contractors on site then did so. One might speculate that Mr Delaney, in the light of Form 700's response, had taken soundings and decided to cause the meeting to be held and may even have invited Mr McDonald to it. Alternatively, one might speculate that Mr McDonald heard about the events of 14 July and that there was going to be a meeting the next morning and decided to attend it. However, all scenarios, including that Mr McDonald organised the meeting, are based on speculation. None is more compelling than another. What all this emphasises is that there is no evidence to show that Mr McDonald organised the meeting of 15 July. Similarly, that Mr McDonald controlled the action from the time it commenced, including the meeting, is not, in my view, an inference that can reasonably be drawn from the facts I have found. Mr McDonald was at the meeting but there is nothing to suggest he organised, controlled or ran it.
190 Nor am I satisfied that the events of 16 July and what Mr McDonald then said to Mr Young about being at the site to get the workers back to work, necessarily indicate that he had controlled the meeting process throughout. His conduct in so doing is consistent with the performance of the role of a union official seeking to assist members of the union having become aware of an industrial issue or action initiated by the workers.
191 I have already found that there is no other direct evidence to disclose that the 7am meeting on 15 July was, in effect, Mr McDonald's meeting. The evidence is that Mr Delaney and others spoke. The meeting was not a long meeting, the focus of the discussion was the failure of Form 700 to sign the safety commitment and a generally expressed concerned about Form 700's safety standards. I have already found that the purpose that motivated the strike action that followed the resolution supported at the meeting was to force Form 700 to sign the written safety commitment that other sub‑contractors on site had signed the day before.
192 While Mr McDonald is not shown to have organised or conducted the meeting of 15 July, I have little doubt that Mr McDonald's presence on site was significant. Mr O'Neill and Mr Young were very familiar with Mr McDonald as an official of the respondent unions and at different times directed him to leave the site. However, Mr O'Neill did not take any steps, when he learned about the 7am meeting on 15 July from Mr Hawkins, to cause it not to take place or to attend it. Whatever his reasons may have been for not doing so, one can only speculate.
193 Mr McDonald plainly was well known personally to both those men. He was also apparently known to Mr McRae, but not from personal association. Mr McRae's evidence was that he was aware of Mr McDonald from his media profile. He said he recognised Mr McDonald as a union representative.
194 Mr McDonald therefore may correctly be seen as a person from the respondent unions who attended the meeting with an industrial interest in the subject matter of the meeting. That Mr McDonald saw himself as a person with a legitimate and significant interest in the meeting, and that others saw him in that way, is emphasized by the uncontroverted evidence of Mr McRae that Mr McDonald stood nearby to Mr Delaney when Mr Delaney (and others) spoke. In other words, Mr McDonald, the recognisable union official, stood close by those who seem to have been actively engaged in the conduct of the meeting and who addressed the topic of concern at the meeting - safety standards on site and Form 700's commitment to safety.
195 Against all of that, something upon which the respondents strongly rely, is that the one of the few things the evidence shows that Mr McDonald otherwise did at the meeting by way of a verbal contribution to the meeting was to say to the meeting, apparently angrily and with some gesturing, after a first show of hands seemed to insufficiently support strike action, to "stand up for yourselves". These words may not have been the actual words used, but I find they were the words the substance of which Mr McDonald spoke. I also find he gestured and that the words were spoken with an "angry" tone.
196 However, immediately after these words or words to this effect were spoken in this manner, the evidence shows that a fresh show of hands was taken and strong support for the strike action was given by the assembled workers.
197 Mr McRae also said that, at one point, Mr McDonald also said to the meeting that their actions would be "looked at", which he (Mr McRae) took to mean reviewed by the ABCC. I accept and find that Mr McDonald also said the words Mr McRae recalled.
198 I should say that I am fortified in making these findings concerning what Mr McDonald did and said at the meeting on 15 July and soon afterwards by his failure to give evidence to contradict these accounts.
199 While counsel for the respondents submit that what Mr McDonald actually said and the context in which he said it are not known, and so not too much store should be placed on the words "stand up for yourselves", or words like it, constituting an exhortation to the workers to take strike action, I do not consider any other construction is equally open. I am comfortably satisfied that when the first show of hands suggested ambivalence on the part of the workers in supporting strike action, Mr McDonald's words and non‑verbal communication of gesturing were not by way of more supportive advice to the assembled workers, but were a blunt exhortation to the workers to do better. Mr McRae's evidence that he spoke with "angry words" and was "gesturing" support this conclusion.
200 In the context of a meeting being held at 7am in the morning on the project site of which Mr McDonald obviously had an awareness, at which he stood with Mr Delaney, or near Mr Delaney, and then, following the first weak response to the motion for strike action over the safety issues mentioned at the meeting, Mr McDonald spoke the words he did in the manner he did, I have little doubt that his words and actions were intended to be by way of exhortation of the workers to support the strike action and in order to gain Form 700's commitment to safety, and had that effect.
201 Whether Mr McDonald's conduct may also be characterised as conduct that "induced" the contravention I am less satisfied. The verb "induce" is not defined by the BCII Act. It should be given its ordinary definition. It is relevantly defined by the Macquarie Dictionary (4th ed, 2005) to mean "to lead or to move by persuasion, as to some action, state of mind, etc" and "to bring about, produce, or cause". It seems to me to demand something more, or at least different, from the conduct identified in s 48(2)(a). Mr McDonald may have been considered an influential union representative at the meeting at 7am on the morning in question. By positioning himself as he did near to Mr Delaney indicates he appreciated the significance of his office as a union official and, in that sense, his right to stand up front. While the fact that he spoke up, strongly in my view, to exhort the workers to "stand up for yourselves" linked him in purpose with the workers for the purposes of s 48(2)(a), his conduct overall seems to me to fall short of "inducing" the action, in the sense of causing the contravention, for the purposes of s 48(2)(b).
202 As to whether or not Mr McDonald was knowingly concerned in the contravention, one must consider whether he had knowledge of the essential elements of the contravening conduct. In light of the findings I have already made, it is clear that Mr McDonald knew that a walk off would prevent the workers from attending for or performing their building work. He was aware at the meeting, before the strike action was voted upon, having regard to the comments he made soon after the meeting to Mr O'Neill, that the workers were "pissed off" about safety. He was present at the meeting when the failure of Form 700 to sign the written commitment was spoken about. He was close to the speakers at the meeting. He understood that obtaining a written commitment from Form 700 was the object of the strike action. Indeed, when Mr McDonald was asked during the meeting with Mr O'Neill and others soon after the 7am meeting on 15 July, when the workers would return to work, he responded (in evidence given by Mr O'Neill which I have already accepted) "there will be another meeting tomorrow at 7am to see if the commitment to safety had been given". It is also clear that Mr McDonald was aware that the action proposed by the workers would be "looked at", because, having regard to the evidence of Mr McRae, he made mention of that likelihood. In the circumstances, it is reasonable to infer that Mr McDonald meant, as Mr McRae understood he did, that the action would be looked at as to its lawfulness by the ABCC. Mr McDonald has not given any evidence in the proceedings to refute the drawing pf what I consider to be an obvious inference. It follows I consider Mr McDonald was also involved in the contravention of s 38 by virtue of s 48(2)(c).
203 For the reasons set out in the preceding paragraph I am also satisfied that Mr McDonald was also aware of the ingredients of the contravention for the purposes of s 48(2)(a).
204 In the result I find that Mr McDonald was involved in the contravention of s 38 under s 48(2)(a) and (c).