BHP STEEL (AIS) PTY LTD v CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

THE STATEMENT OF CHARGE 14 Deleting the references to the affidavit material relied upon in support of the particulars of charge, which had been required by an earlier Order, paragraph 3 of the Statement of Charge and the Particulars of Charge reads as follows: "3. In breach of the Order, from the time of the making of the Order and continuously thereafter until 4 pm on 9 February 2000, at the Applicant's Tower Colliery, Elouera Colliery, West Cliff Colliery, Appin Colliery and Cordeaux Colliery the Respondent: (a) continued to take strike action for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (b) continued its ban upon employees attending for work and performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (c) continued to authorise members of the Respondents who were employees of the Applicants to stop performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (d) authorised members of the Respondents who were employees of the Applicants to stop performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (e) directed members of the Respondents who were employees of the Applicants to stop performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (f) procured members of the Respondents who were employees of the Applicants to stop performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices. The affidavits relied upon by the applicants in relation to these allegations are identified in the particulars below. PARTICULARS OF CHARGE The employees of the Applicant listed below in Schedule A failed to return to work on their appointed shifts as set out in Schedule A because the Respondent: (i) failed to inform such employees that the strike which it had required to begin at the Respondent's said collieries for 24 hours from midnight AEDST on 7 February 2000 had ceased; … (ii) failed, between the time [of] the said Order was made and 4 pm on 9 February 2000 to inform such employees that they should return to their duties; … (iii) failed to cancel a meeting that had been called for 10 am AEDST on 8 February 2000 at the Wonoona Bulli RSL Club, for the purposes of the strike; … (iv) by its authorised officer, one Tony Maher, at about 8.30 am AEDST on 8 February 2000 on ABC radio, represented that the strike was continuing in order to 'drive home a message to BHP'; … (v) organised and conducted a union meeting at 10 am AEDST on 8 February 2000 at the Wonoona Bulli RSL Club, at which a resolution was passed to extend strike action for a further 24 hours from midnight AEDST on 8 February 2000; … (vi) at about 10 am AEDST on 8 February 2000 at the Wonoona Bulli RSL Club, passed a resolution to extend strike action for a further 24 hours from midnight AEDST on 8 February 2000. …".

THE ORDERS AND THE DEFENCE 15 The CFMEU's defence contained some admissions as to attempts, on the part of the then applicants, to notify or serve the Order but denied that they constituted notification of it in terms of the Order. At the hearing, the CFMEU submitted that the injunctions did not require it to take any positive action and that it could not therefore have been guilty of disobedience to the Orders by taking no step. If positive acts are required they need to be specified. Alternatively, the Order left a choice as to the manner of compliance such as rendered it uncertain in its terms. In these respects reliance was placed upon the decision of Merkel J in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors [2000] FCA 629 ("the AIG case"). In that case an Order had been made under s 127 Workplace Relations Act 1996 ("WRA"). It was in two parts. The first required that: "3.1 Industrial action as defined in clause 3.2 of this order shall not occur, or where occurring shall stop, be discontinued, or cancelled and withdrawn." 16 Clause 3.2 listed certain conduct and the parties to it. The following clause required particular respondents to provide a written notice (to the AIG) advising that the Commission had made an Order and that any authorisation of stop work meetings by the Unions and officials was withdrawn and cancelled. The AIG, being concerned about non-compliance with the Order, sought and obtained an injunction from the Court against the respondents restraining them "from engaging in conduct which constitutes a contravention of the Order made by the Australian Industrial Relations Commission …". The motion for contempt brought with respect to that Order focussed upon action the respondents did not undertake pursuant to clause 3.1 of the initial Order. Merkel J, without determining the point, observed that the Court's Order was intended to restrain action on the part of the respondents, not omissions. The question of construction was determined on the basis that clause 3.1 left to the addressees a choice as to the manner of compliance and one such choice was to simply stop engaging in conduct referred to in the earlier Order, rather than taking any positive step. His Honour was encouraged to that view by reference to the fact that the positive conduct required by the Order was specified, the giving of the notice. Alternatively the Order was open to two possible constructions and was not therefore clear enough to sustain a charge of breach of it. 17 In Concrete Constructions Pty Ltd v Plumbers & Gasfitters Employees' Union & Anor (1987) 15 FCR 64, the Order which was alleged to have been breached restrained the respondent "from maintaining, giving effect to or enforcing any ban …". Wilcox J confirmed that a party cannot be committed for contempt on the ground that, upon one of two and possible constructions of an undertaking, it had been broken: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, 515-6. It will be recalled that this was one of the bases for the decision in the AIG case. Where there is more than one construction open, the Order will be uncertain in its terms. Wilcox J explained the distinction between such an Order and the one there under consideration (72): "However, there is a fundamental difference between an order which is uncertain and an order which, being certain in its meaning, leaves to the addressee a choice as to the manner of compliance …. Provided that the order specifies with certainty the result to be achieved it is not normally for the applicant to suggest, or for the Court to prescribe, a particular method of complying with the order. As Chitty J said in Walthamstow [Attorney-General v Walthamstow Urban Council (1895) 1 TLR 533], 'it was the duty of the defendants to find out the proper means of obeying the order'". 18 His Honour held that the Order specified what was to be done, by requiring the Union, its servants and agents, not to maintain, give effect to or enforce any ban which had been imposed before that date. 19 His Honour's reasoning in Concrete Constructions is apposite to this case. The language of the first injunction here is in strong terms in its requirement to "cease" and it is plain that some urgency attends the requirement for action in that regard because the CFMEU is to do so "immediately". It had a choice as to how it was to end the strike it had started, although some steps are so obvious that they go without saying. The requirements of the Order and the result to be achieved were clear.

the CFMEU'S CASE 20 Mr Maher was in Canberra on Monday 7 February 2000, hosting a conference organised by the CFMEU. Messrs B Watson and Coates, also of the Executive, were with him. He added, in cross-examination, that Mr Maitland, the National Secretary, was also in attendance at the conference. At about 2.00 pm, he learned of BHP's part in agreeing to a reduction in coal prices and took steps to call for the stoppage. He spoke to Mr Watson and Mr Coates about calling a strike and was able to contact Mr M Watson later. Mr Maher was unable to contact Mr Vickers that afternoon, as he was taking part in the proceedings before Commissioner Hodder in Brisbane. In any event he was able to obtain a decision on the part of sufficient members of the Executive to call for a stoppage of work. He then held a press conference between 5.00 pm and 5.45 pm and issued a media release. In the late afternoon or early evening he spoke to Mr Vickers, who advised him that the Commission had issued an Order under s 127 WRA. The strike was due to start at 7.00 pm in Queensland and 11.00 pm in New South Wales, at the commencement of the night shift. Neither he nor anyone else on the part of the CFMEU took any step to end the strike after being informed of the Commission's Order. 21 A conference dinner was held in a restaurant that evening. He said that each of Messrs Maitland, Coates and Watson were at the dinner. Through the evening he received and returned numerous calls from representatives of the media. On each occasion he was required to leave the main restaurant area and walk some distance away, in order to hear the other party and to maintain reception. 22 Shortly before 11.00 pm Mr Maher said he received a telephone call on his mobile phone, which he answered. As he did so, he heard the words "Humphreys", "Blakes" and "thanks", but by the time he got to a quieter place the call had "dropped out". At this point he noticed that the mobile phone's battery was flat. He returned to the dinner, borrowed another battery, and kept the telephone switched on for the remainder of the night but did not receive any further calls. 23 It is necessary to interpolate here BHP Steel's version of this telephone call. At about 10.49 pm Mr Humphreys, the solicitor then acting for BHP Steel, says that he telephoned Mr Maher on Mr Maher's mobile number and Mr Maher, whose voice he recognised, answered the phone. Mr Humphreys then said to him words to the effect: "Tony, this is Ian Humphreys from Blake Dawson Waldron". and Mr Maher replied: "Yeah, how are you?" He goes on: "I then said to Mr Maher words to the effect of: "Not bad. I am in the Federal Court. I need to tell you that the Federal Court has issued an injunction against the CFMEU and other unions in respect of the BHP price dispute. Obviously the company expects compliance with the order straight away." Immediately after I said that, the phone connection disconnected." 24 At about 6.30 am on 8 February 2000, Mr Maher left Canberra and drove to Bulli to attend the arranged meeting to which reference has been made. The meeting had been brought about as a result of a meeting of Lodge officials (a "merger committee" meeting) which had been held on about 10 December 1999. There had been a number of issues addressed at that meeting: the action of BHP in the Pilbara area of Western Australia in requiring employees to enter into workplace agreements and BHP's Log of Claims. Mr Maher had been asked at that meeting to report on those issues and provide any further update at the next stoppage of work, when a meeting of members would in all likelihood be called. So it was that when the stoppage was to occur between 7 and 8 February 2000 Mr Fisher, the District President and a member of the Executive, arranged the meeting. It was not a meeting provided for under the rules. It was described as a mass meeting of the Lodges in the District. 25 Mr Maher says that whilst he was driving to the meeting he was telephoned by a number of media representatives and one of them referred to an injunction. He asked whether this was a reference the s 127 Order, but the journalist was unable to clarify the nature of the Order referred to. In another interview, the transcript of which had been set out in BHP Steel's affidavits to which Mr Maher was responding, and which was broadcast at about 8.30 am, Mr Maher was asked what he hoped to achieve by the strike, to which he is reported as saying "Well, we'll drive home a message to BHP that it has sold out the community, the Illawarra community in particular, and it has betrayed its workforce." No mention was made of the Court Order. Mr Maher said that at this point he had still not heard of the Court injunction. Some time after that interview he was advised of it by Mr Vickers who telephoned him on his mobile phone. Mr Vickers said: "Look there's an injunction against the union on the fax. It says we have to cease industrial action on any stoppage about coal prices". 26 Mr Maher says that as soon as he heard this, it was clear to him that the stoppage would have to be called off and he formed the view that the most effective way of advising the Illawarra members of the Union of the Order was at the meeting scheduled for 10.00 am. He told Mr Vickers that he was shortly going to a meeting of the rank and file and that was the best opportunity to make them aware of the injunction, to which Mr Vickers said that he was unable to do that in Queensland. Mr Maher explained during the hearing that this is in part because of the distances between the mines in Queensland. Mr Vickers then said that the course he would undertake was to send out the injunction with a covering direction by facsimile transmission, directing the Lodges in Queensland to return to work. Mr Maher agreed upon this course of action. 27 Shortly after this conversation Mr Maher telephoned Mr Fisher. He told him of Mr Vickers' advice, that an injunction had been issued, and said that he did not have a copy of it but that he thought they should give the same direction verbally at the 10 am meeting. Mr Fisher assented to this course and indicated that "some of the members are fired up because they were served with Court documents in the middle of the night. They are not used to that kind of treatment." 28 Mr Maher arrived at the RSL Clubhouse, where the meeting was to be held, at about 10.00 am and prior to the meeting spoke to some of the rank and file members who complained that process servers had knocked on their doors in the middle of the night to serve Court documents, waking family members. He said that he was told that some had been advised that they would lose their houses and possessions if they did not obey the Court Order. He concluded from these comments that it appeared that many of the members were in an angry mood. He added that some members were drinking alcohol at the meeting. 29 So far as concerned the action taken by Mr Maher and Mr Fisher at the meeting, Mr Maher deposed to the following sequence of events: "At the commencement of the meeting I gave a report to the members. I spoke about recent developments concerning BHP. The main issues raised were the Log of Claims served by BHP on the CFMEU, the Pilbarra [sic] dispute, and coal prices. A national resolution was put to the meeting and passed by the members." 30 The resolution referred to was one which had been prepared and typed by Mr Maher and taken to the meeting. It was in these terms: "This meeting unreservedly condemns BHP for selling out its employees, our communities and the country by again driving down the price of hard Coking Coal. The strengthening Japanese Steel Industry could have sustained better prices if Australian producers stuck together. BHP broke ranks to gain increased tonnage at the expense of other Australian producers. This will not create any new BHP jobs - it will only lead to retrenchments as all mines (including BHP mines) struggle to meet the lower prices. This meeting endorses the National SBU [Single Bargaining Unit] decision to single out BHP and renews the mandate for the Unions to take further action over this issue. This meeting condemns BHP's action in giving away the massive productivity improvements achieved by the workforce in the last 12 months. This is a betrayal of all BHP employees. For this reason alone this meeting rejects BHP's November log of claims and demands its withdrawal. Finally, this meeting places BHP on notice that any attempt to renege on agreements or to implement retrenchments will be met by an industrial campaign". 31 Mr Maher goes on: "48. I then spoke about the stoppage and about the Federal Court proceedings. I said words to the effect of: 'Our action has brought about a legalistic response from the Company and now we've got a Federal Court injunction. I haven't seen the terms of the injunction but from what I have been told we have to return to work immediately. The Executive therefore directs you to return to work.' 49. Mr Fisher then addressed the meeting. Mr Fisher said words to the following effect: 'Our position is that you go back to work.' 50. At the end of the reports by myself and Mr Fisher the meeting was thrown open for questions and comment from the floor. At this point a number of members spoke from the floor in an angry manner about the actions of BHP in sending process servers in the middle of the night to serve documents, and the effect that this had had on their families. Others objected to receiving telephone calls in the middle of the night. Some members also raised the fact that they had been threatened with loss of their houses and other possessions if they did not return to work. 51. During this discussion a resolution was moved from the floor. The resolution called for an extension of the stoppage for a further 24 hours in protest at BHP's harassment of employees. 52. In response to this resolution I said words to the following effect to the meeting: 'You can't extend the stoppage because it's a National stoppage called by the Executive. The Executive has now said that it should be ended immediately. Any further stoppage is not supported by the Executive.' 53. I recall that Mr Fisher made a similar comment to the meeting." 32 The second resolution, which was moved from the floor, was: "That a 24 hour stoppage take place from midnight tonight due to the harrasment [sic] and intimidation towards our elected union officials both at District and Lodge level by B.H.P. management and any further harrasment [sic] will be meet in similler [sic] fashion. Appin Lodge would start from s/shift if required." 33 Mr Maher did not speak further because he considered he had made the Executive's position clear. The meeting ended at about 11.30 am. It was clear to him that the members did not intend to return to work prior to the end of the 24 hour stoppage and he was of the view that no further action could effectively be taken by him to persuade them to return to work. 34 Mr Maher spoke to Mr Vickers after the meeting and learned that the Queensland members were following the return to work direction. That direction, addressed to all BHP Lodge secretaries in Queensland, was in these terms: "I attach for your information a copy of orders of the Federal Court of Australia directing that all industrial action relating to the outcome of negotiations over coal price negotiations cease. The orders were faxed to the District Office at approximately 10.30 am (sic) last night and were picked up by me at 7.55 am today. Lodges are directed to comply with the orders. (Signed by Mr Vickers)". 35 Mr Maher also referred to an interview he later gave and which was broadcast at 6.00 pm on 8 February. In it the reporter refers to the miners having taken their Executive by surprise by moving a work stoppage from the floor of the meeting and Mr Maher refers to complaints made by the workers of harassment. Other transcripts of interview or broadcast had been filed by BHP, but were not the subject of comment by Mr Maher until cross-examination. I shall refer to them when considering the overall evidence.

THE FURTHER EVIDENCE 36 Subsequent to the filing of Mr Maher's affidavit BHP Steel subpoenaed and later filed, or tendered, records of telephone calls which had been made by various Union officials and Union members on the evening of 7 February and the morning of 8 February. The time and length of the connection is recorded. In submissions, BHP Steel listed these calls in sequence. Certain patterns emerge. To obtain a more complete picture about what was occurring that evening it is necessary to add to that list the earlier evidence as to notification of the Order to various officials and Union members. That evidence is summarised in the Statement of Charge. 37 Prior to Mr Humphreys telephoning Mr Maher, at about 10.25 pm, Mr Hasiuk, President of the Cordeaux Lodge, had been informed by BHP Steel's Employment Relations Manager that the company had been successful in obtaining a Federal Court injunction which required the CFMEU to immediately comply with the s 127 Orders and that that meant it was required to ensure that its members turned up for work on the night shift. When Mr Hasiuk said he would need to get advice from District officials, the manager informed him there may be serious consequences. The manager advised that he would be sending a copy of the Order to Mr Peters (Secretary of the Lodge). Mr Hasiuk indicated that there was little he could do at the local level, but that he would look at "the paperwork" when it came from Mr Peters. The telephone records disclose that Mr Hasiuk telephoned Mr Peters at 10.30 pm and remained connected for about three minutes, indicating a conversation was likely to have occurred. He had another telephone connection with Mr Peters at 10.41 pm for a slightly longer period and after he had placed calls to two other Lodge representatives. A copy of the Order was sent by facsimile to Mr Peters at about 11.30 pm but the transmission was unsuccessful. He was served personally with a copy of the Order at 4.42 am. It is not clear that Mr Hasiuk spoke to Mr Mitchell and Mr Lester of the Elouera and Tower Lodges respectively. He telephoned each of them shortly prior to his call to Mr Peters, but the length of the connection is very short and not indicative of a conversation. 38 The manager also informed Mr Harris, the District Secretary, at about 10.30 pm , that an injunction had been obtained and that it required the CFMEU to comply with the s 127 Orders. He then added "I guess you know what that means", to which Mr Harris replied "Yes". Mr Harris was told that BHP Steel had been contacting Lodge officials and he said that it would take some "higher input to get them moving", which I take to refer to action at Executive level. He concluded "leave it with me". A copy of the Order was left at Mr Harris' home at 4.43 am. Mr Harris commenced his telephone calls, to Messrs White and Fisher, at about 7.00 am. 39 The telephone call from Mr Humphreys to Mr Maher, which was recorded to have lasted approximately one minute, occurred at 10.50 pm . The telephone records then disclose communications, or attempts at communication, amongst some members of the Central Executive. The first call was by Mr Coates, who telephoned Mr B Watson, the General Secretary at 10.56 pm for 3˝ minutes. Although both had attended the dinner it was submitted by senior counsel for the CFMEU that Mr Coates had left the dinner earlier. Mr Maher however had not given evidence of this. He said that he had no recollection of who left earlier. Mr Maher was only definite that Mr Watson did not leave the dinner before he did. At 10.58 pm Mr Maher telephoned Mr Fisher, the connection lasting a short time - some fifty seconds. 40 A series of telephone calls commenced after Mr Everill, Lodge President of Appin, was sent a copy of the Order by facsimile transmission at 11.25 pm . He had been notified verbally at 10.30 pm and was told that he should commence action to get the men back to work immediately. He said that he needed direction from "the national mob". At 11.26 pm Mr Everill telephoned Mr White, Vice-President of the South-western District Branch, and the connection lasted six minutes. Again, I infer that a conversation took place. At 3.58 am the next morning, Mr Everill was served with a copy of the Order and he telephoned Mr Mitchell four minutes later and one may infer spoke to him, since the connection lasted some four minutes. Mr Everill then telephoned, in rapid succession, Mr White, Mr Harris and Mr Fisher, although it may be that he simply left a message for them since the connection time was in each case short. At 4.12 am he telephoned Mr Mitchell again and spoke to him for some five minutes. Thereafter he telephoned Mr Coates, Mr Maher and Mr Watson for relatively short periods of time, and it could not be assumed a conversation occurred. A little later, commencing at 5.05 am, Mr Everill rang Mr Harris and Mr Fisher, the connection time again being relatively short. However, when he telephoned Mr Maher at 5.06 am the call lasted for some three and a half minutes. This telephone call took place before Mr Maher says he left for Bulli. 41 At 6.42 am Mr Fisher telephoned Mr Everill, perhaps returning his call and the call lasted for about 1˝ minutes. Mr Fisher then rang Mr Maher for two minutes at 6.48 am. The following calls are then recorded: Mr Everill to Mr Coates at 7.00 am for fifty-six seconds; Mr Harris to Mr White at 7.01 am for 4˝ minutes; Mr Harris to Mr Fisher for six minutes at 7.08 am; Mr Everill to Mr Mitchell at 7.43 am for just over one minute. 42 Mr Maher spoke to Ms Doust, the CFMEU's legal officer, at 8.06 am for 7˝ minutes. He telephoned Mr Watson prior to ringing in for the radio interview which took place at 8.30 am. At 9.01 am, after that interview, he rang Mr Watson again. Mr Maher telephoned Mr Fisher at 9.49 am; 10.01 am and 10.03 am, all of which I take to have occurred prior to the commencement of the meeting. He acknowledged in evidence that he may have been late for it. Before the meeting, at 8.26 am, Mr Fisher had also spoken to Mr Coates. 43 It will be recalled from Mr Maher's version of events that Mr Vickers and Mr Maher spoke and formulated a plan of compliance with the Order. According to the telephone records their conversation occurred at 9.24 am for one minute and forty-seven seconds. According to the facsimile transmission reports Mr Vickers commenced sending faxes to the Lodges at 9.10 am (AEDST) and was finished by 9.32 am which is to say he had substantially undertaken his notifications before he spoke to Mr Maher.

other notifications 44 I have not included in the above summary every act of notification by BHP Steel, but those relevant to the issue of knowledge on the part of District Branch officials and the Central Executive. It is their inaction which BHP Steel submits amounts to breaches of the injunctions. 45 BHP Steel also notified a number of employees, who were due to commence the next shift. Notification to them is not relied upon in the Statement of Charge as notification to the CFMEU. Reliance is placed by the CFMEU on evidence of these notifications for two other purposes: to show that the Order's requirements were misrepresented to the employees; and to show that the employees were likely to have been annoyed or even angered by these communications. The first of these would not seem to me to be a relevant matter. BHP Steel's evidence does contain some statements, on the part of those acting on its behalf, which suggest that some employees were told that if they did not return to work they might be in contempt of Court and be subject to penalties. There is no evidence of a strong reaction to these representations. According to the deponents they were simply acknowledged. Some employees then volunteered that they would be unable, for a variety of reasons, to attend work. BHP Steel's other evidence of notification also contains no suggestion of anger or annoyance, except where one employee pointed out to the caller, perhaps with some annoyance, that he had woken his family. The employees are said to have acknowledged the advice and, consistent with the view expressed by a number of Lodge officials, indicated that it was a matter to be dealt with by others at a higher level in the Union. The CFMEU did not give any direct evidence on this issue. 46 There is one further aspect to BHP Steel's evidence as to the communication of the Orders, although in the end result little reliance appears to be placed upon it as a mode of communication. At the request of BHP Steel, the local FM radio station broadcast a summary of the Orders at 5.30 am on 8 February at hourly and then half-hourly interviews, and an urgent announcement summarising the requirements of the Orders was made on ABC radio at 6.30 am and 7.30 am. The evidence also discloses that the start of the day shift is 6.30 am except for Tower, which is 7.00 am.

findings 47 Mr Maher was not aware of the evidence relating to the making of the telephone calls when he prepared his affidavit, in which he affirmed that the first notice he had of the existence of the Order was from Mr Vickers at about 9.26 am on 8 February 2000. He maintained that position at the hearing. In further evidence in chief he explained that he had not adverted to the other telephone calls he had made or received because they did not relate to the Orders made on 7 February 2000. Mr Maher did not say what they did relate to. The CFMEU did not call any other person the subject of that further evidence to explain the telephone calls. It conducted its case upon the basis that Mr Maher's evidence would be accepted and on the basis that no inferences adverse to it could properly be drawn from evidence of the fact of calls having been made between the various persons. 48 It was conceded in submissions that the creditworthiness of Mr Maher was important, if not decisive, of any acceptance of his story about the telephone call from Mr Humphreys. That involves a consideration of a number of aspects of the evidence, which I shall shortly undertake. I would not, in any event, consider it correct to determine an important aspect of the evidence by reference to credit alone. Here, however, there is the evidence of calls which followed in a matter of some minutes and in a circumstance where Mr Maher is not able to explain what might have prompted calls at 11.00 pm. He could not point to anything which had occurred at the dinner which might have led to the calls; he did not suggest that he was likely to have been ringing some of the media representatives who had been calling him; and he said he was, at about this time, organising the departure of guests from the function. 49 The first of the calls made was by Mr Coates to Mr Bruce Watson, some five minutes after the call between Mr Humphreys and Mr Maher concluded. In submissions it was said that Mr Coates could not have been a party to some conversation with Mr Maher about the call from Mr Humphreys, because he had left the dinner. It would follow that his call to Mr Watson, was wholly unrelated to the existence of the Order. As I have said, there was no evidence from Mr Maher to that effect. He could only recall that Mr Watson did not leave the dinner before him. Reliance was also placed upon the source or station recorded for Mr Coates' call which was different from that for Mr Maher, but there was no evidence as to what this meant as to his whereabouts. More importantly however, and putting Mr Coates' call to one side, some seven minutes after the call from Mr Humphreys, Mr Maher telephoned Mr Fisher. Mr Fisher was not only a member of the Executive, but also the District President and the person who had arranged the meeting for the following morning. It was Mr Fisher who Mr Everill tried, probably unsuccessfully, to call. The evidence confirms his role as one central to the strike action and the meeting. All of the factors adverted to above point strongly to a connection between Mr Humphreys' call and those matters . 50 By the time Mr Everill contacted Mr Maher, at about 5.05 am on 8 February 2000, he had received a copy of the injunction, late in the night before, and had telephoned Mr White, the Vice President of the District and had a reasonably lengthy conversation. When he was handed a copy of the Order he telephoned the Secretary of Elouera Lodge, a matter of moments later, and then Mr White, Mr Harris, Mr Fisher and Mr Mitchell again. Even if he was able to speak only to Mr Mitchell, these actions are clearly connected to the receipt of the Order. It is not too difficult to appreciate that concerns were held by Mr Everill. It was sufficient to cause him to try to contact three members of the Executive about ten minutes later after receipt of the Order. 51 Two submissions were made with respect to this aspect of the evidence. Reliance was placed upon the fact that Mr Everill did not attempt to call Mr Maher for some hours, but this does not explain the other steps taken clearly in response to the receipt of the Order, even if it was at Lodge or Branch level in the first place. It was then submitted that it was more likely that Mr Everill was likely to have been concerned about the service of the Orders on employees and Lodge officials locally and the method of that service. It may well be that Mr Everill was interested to ascertain what was happening in the Lodges and to pass that information on to the Central Executive. That does not in my view displace an obvious inference that he would be concerned to know what was to be done about the Order. To find otherwise would be tantamount to viewing his reaction to the Order as inappropriate, one which would not reasonably be expected of someone in his position. 52 In my view, it is impossible to accept that Mr Everill did not discuss the Order and its terms with Mr Maher shortly after 5.00 am. If Mr Maher was unfamiliar with the terms of the Order at this time he is almost certain to have made enquiry about them, if Mr Everill did not volunteer that information. A failure to make an enquiry would not avail him in any event. Implicit in this finding is that Mr Maher was not truthful in his evidence concerning when he became aware of the requirements of the Order. 53 By the time Mr Fisher telephoned Mr Maher, at 6.48 am, Mr Fisher had also spoken with Mr Everill. Again I conclude that he too was advised of the Order, had he not been advised by Mr Maher the night before. No action was taken by either of them to bring the strike to an end. 54 Prior to Mr Maher telephoning Ms Doust, the Union's legal officer, at 8.03 am the evidence discloses the involvement of Mr Maher and Mr Fisher at Executive level; Mr Fisher, Mr Harris and Mr White at District level, and a number of Lodge delegates. For the reasons given above, it is inconceivable that the existence of the Order and what it required were not topics of discussion. 55 It also follows that I am unable to accept that Mr Maher would not have spoken to Ms Doust about the injunctions and that view is reinforced by the CFMEU's failure to call Ms Doust, who remained in Court throughout most of the hearing. Members of the Central Executive then also found the need to speak to each other about twenty minutes later: Mr Fisher calling Mr Coates; Mr Maher calling Mr Watson twice. 56 By the time Mr Vickers telephoned Mr Maher, at 9.24 am, Mr Maher was fully aware of the terms of the Order. Mr Maher was false in his denials of knowledge and of communications prior to this point. Mr Maher's evidence that he and Mr Vickers planned a strategy of notification together is not likely to have been a poor, but mistaken, reconstruction of events by Mr Maher. In saying this I am of course influenced by the view I have formed thus far concerning Mr Maher as a witness. Mr Maher knew that it would be seen that Mr Vickers had taken action to end the strike, in compliance with the Order. Questions would naturally arise about why he was doing nothing, at a time when he is likely to have been advised of the steps taken in Queensland. A reference to Mr Vickers' telephone call might serve two purposes: to enable him to point to a time which might be accounted as too close to the meeting to allow notification to Union members; and to enable him to be seen as a participant in compliance with the Order. As a discrete item of evidence little importance would have attached to it had Mr Maher simply related a conversation about Mr Vickers' chosen method and Mr Maher's advice to him, in return, that he intended to advise members at the meeting. The story was detailed and emphasised in such a way that Mr Maher is now unable, credibly in my view, to explain why Mr Vickers would be planning a strategy when he had almost completed his transmissions. 57 Mr Maher knew of the Order at the latest by about 5.00 am and in my view he knew of it after Mr Humphreys told him of it the evening before. At that point he probably hung up. I am assisted to this conclusion by the firm view I have reached concerning his creditworthiness as a witness, which was reinforced, to an extent, by the manner in which he dealt with questions during the hearing. His version of the telephone call cannot be squared with that of Mr Humphreys, even allowing for some error in recollection on the part of Mr Maher. There is nothing to suggest Mr Humphreys' recollection was erroneous. 58 With the background of notification, I turn then to consider the conduct of the CFMEU officers at the meeting on 8 February 2000. 59 Before the meeting was held, Mr Maher had given a number of interviews. In a radio interview in the late afternoon of 7 February 2000, Mr Maher expressed "no doubt that there'll be a lot of anger directed towards the company at those meetings", the later being a reference to the series of meetings to be called, following the commencement of the national strike, to discuss the company's bad faith, and bad management. They were topics which were taken up at the meeting on 8 February, 2000. He added that he was sure the work force was going to turn on BHP. 60 In a radio broadcast at about 7.00 pm the night before, and again at 8.00 pm, mention was made of the prospect of BHP seeking a Court Order. In the same broadcast, statements by Mr Maher were included. In each case the words used were likely to have been the same, although that was not what was transcribed. It is not a matter of importance. The existence of a Court Order was adverted to again in a 6.00 am bulletin on 8 February 2000. I do not however understand BHP Steel to contend that these statements were made in the course of a live interview and I accept Mr Maher's statement that they were compilations. It has not been shown that Mr Maher was aware of these broadcasts but, as I have found, he was aware of the Order before the 6.00 am broadcast in any event. Whether he knew, the evening before, that BHP Steel was attempting to obtain an Order now assumes little relevance. 61 In the 8.30 am radio interview, to which reference is made above, there was no mention of the Court Order. There was reference by Mr Maher to BHP having betrayed the workforce. He went on to explain, in some detail, how jobs would be lost as a result of the reduction in prices and that the Illawarra area in particular would be affected. Mr Maher's explanation of this statement was that it referred only to the calling of the strike in the first place. I accept that it may be understood in that way. Of more relevance is the failure to mention the requirement of the Order that the strike must cease. 62 In the course of his evidence at the hearing, Mr Maher confirmed that prior to the meeting he was expecting that the men would be angry with BHP. As he approached the meeting he made a number of calls to Mr Fisher, the last, I infer, resulting in a conversation. So far as concerns what took place at the meeting and the manner in which the meeting was addressed by Mr Fisher and Mr Maher, Mr Maher was unable to recall much of what Mr Fisher said at it, although it would seem likely that he spoke for some little time, since Mr Maher described his role as also being that of a reporter to the meeting. Mr Fisher was not called as a witness. 63 It will be recalled that Mr Maher did not refer to the Court Order or take any action to call off the strike at the outset of the meeting. Instead, he proceeded to discuss current issues as between BHP and its employees, all of which appeared to be highly contentious and likely to add to any anger already being felt by employees. It is not difficult to appreciate that a picture was being conveyed of the company by reference to its treatment of its employees and the Union in these areas. He spoke of the current and highly volatile issue of coal prices, which was the basis for the current strike action. An obvious purpose of a meeting in these circumstances is to determine what action was now to be taken. Members of the Union would be waiting for guidance from the Executive and Mr Maher in particular. 64 It was suggested to Mr Maher that the course he undertook appeared strange. He was not dealing immediately with the Court Order, and was potentially provoking employees to further anger, which would render the prospect of ending the strike action more remote. Mr Maher added that he did explain the seriousness of the Order and its possible consequences to the meeting but to no avail. If he had done so I would have expected a reference to such a relevant action to have been included in his affidavit. 65 Mr Maher's explanation of his conduct was one which was said to have been based upon his experience in industrial matters. He said that it was pointless to approach a mass meeting and simply tell Union members that a strike was off. The approach he thought would work was to explain to the members that they had genuine grievances, that they would be taken up in the future, but that the Court had ordered the strike action to cease. An approach such as that outlined would appear to be a sensible one, although one would have to doubt the wisdom of it in the context of a large and very angry meeting of employees, as Mr Maher knew they would be. 66 It was submitted by the CFMEU that I should regard Mr Maher's explanation as reliable, because he volunteered the evidence of what took place at the meeting. I do not think too much can be drawn from that fact. It must have been obvious to Mr Maher and his advisers that he was obliged to explain a meeting which he addressed and which produced further strike action, in the face of a Court Order to cease. I have however considered whether the account given by Mr Maher, which is not altogether favourable to him, is a matter to be weighed in his favour with respect to his credit and an acceptance of his bona fides in conducting the meeting. 67 In the context of a large meeting, one apparently attended by some journalists, it is a safer course to provide an account which has a connection to the events as they occurred. It is difficult to understand why the CFMEU and Mr Maher would consider the explanation of his conduct as convincing, unless one recalls that it was no doubt assumed that his evidence to this point would be accepted and he would be considered to be a witness of credit. 68 It is not possible to discern just how much of a meeting which took about one and a half hours is reflected in the matters recounted by Mr Maher. The part that Mr Fisher played is unclear. Mr Maher was anxious, in my view, at some points in his evidence not to implicate Mr Fisher. It is noteworthy that Mr Maher was not however prepared to suggest that Mr Fisher had spoken firmly or at length, about the need to comply with the Court Order. The one sentence attributed to him discloses that he did very little to bring the strike to an end and to ensure the Order was taken seriously. These matters are not of great importance in connexion with the explanation offered by Mr Maher. The real difficulty with it is that it is not consistent with the approach he actually took. 69 I find it impossible to view the report of issues relating to BHP, the first matters drawn to the members' attention, as serving some pacifying purpose. They were matters certain to raise the level of anger towards the company. The resolution Mr Maher brought to the meeting would also have solidified anger and resentment towards the company and put in the minds' of the employees present the prospect of further strike action. Putting that resolution to the meeting prior to any discussion of the Order counts strongly against acceptance of Mr Maher's bona fides. It was submitted that one should not regard the reference in the resolution to the giving of mandate for further action to the Union as referrable to the resolution for further strike action which is said to have come shortly afterwards from the floor. I accept that that might be the case. It seems to me however that Mr Maher was driving the meeting in the opposite direction from one which would result in the end of strike action. I am only able to infer that the undertaking of that course of action was the result of a determination that the CFMEU prevail against the company. 70 Mr Maher's reference to the Court Order could not have impressed upon the members the Union's unqualified obligation to act in compliance with it and at once. After inflaming his audience he spoke of the Order as a "legalistic response" which is far from explaining its seriousness. Rather than explaining the obligation to comply with an Order made by a Court, Mr Maher connected it with the company which was to be seen as callously inflicting harm on employees. In that context, the Order was presented as another such action. To say that Mr Maher was paying mere lip service to the CFMEU's obligation to bring the strike to an end may be something of an understatement. 71 In my view, it is usually necessary in proceedings for contempt to consider whether a person or corporate body alleged to have wilfully breached an Order had a motive to do so. One would not expect deliberate breaches of Court Orders, not the least because of the consequences which may follow. In this case, these are strong reasons why Mr Maher and the CFMEU may have decided not to obey the Order. The strike was an important one, as Mr Maher reiterated at several points. It involved a matter of great principle. That was the reason for non-compliance with the Commission's Order. Whilst I accept that the CFMEU and Mr Maher would not take the same view towards compliance with an Order of the Court, because of the different and serious consequences which might follow, it is a strong indicator of the level of importance which was placed on this industrial action. There was also a real problem in calling off the meeting. There was a need to have the meeting, Mr Maher said, although clearly it was not to ensure compliance with the Court Order. There was the need on the part of Mr Maher and the Executive to maintain leadership and authority. I do not think that the influence this was likely to have had should be underestimated. 72 I have also taken into account evidence which might be considered consistent with Mr Maher's account. The evidence, other than that given by Mr Maher, was that he spoke to a radio interviewer at 8.30 am on 8 February and did not mention the existence of the Court Order. This is consistent with a lack of knowledge of it. On the other hand, it could hardly be expected that he would volunteer this information if he knew of the Order and did not intend ensuring compliance with it. Further, there is a body of evidence, albeit inferential, which points the other way. 73 Comments made by Mr Maher on 8 February 2000 were reported in a newspaper article the next day. Mr Maher says they were not statements made during the meeting, but afterwards. In connection with the further strike action, Mr Maher said that the workers were "a proud bunch and they are going to send a message about harassment to the company" and "this isn't the action of a responsible company". In relation to the workers' anger, he said: "So the future of the district is at the core of their anger at this meeting" and "What we've seen here is enormous anger by workers who feel they have been betrayed by a company to which they have given their all." 74 Apart from reinforcing the likelihood that Mr Maher had done nothing to stem the anger at the meeting, these statements are relevant to the question of the true purpose of the further strike. 75 It was submitted for the CFMEU that it could not be held responsible for the action of employees who independently voted for further industrial action. Further, and relevantly for present purposes, the purpose of the strike was different from the purpose prohibited by the Order, namely the issue of coal prices. It will be recalled that the purpose stated in the resolution was the conduct of BHP Steel in notifying the Order, which was said to amount to harassment. It is noteworthy that it was not the rank and file who were identified in the resolution as the subjects of this harassment, but Union officials at Lodge and District level. This is consistent with the concern those officials no doubt had when they were notified of or served with the Orders, as earlier discussed. That does not appear to have been the response of the rank and file who were contacted. They may not have felt any responsibility about deciding upon a course of action, or inaction. 76 There are two aspects to the charge concerning the CFMEU's involvement in the decision to take further strike action: one requires an assessment as to whether the rank and file members acted on their own account or whether the Union played an active role in the motion; and the second is whether the purpose stated was in truth the purpose. The second question may be dealt with shortly. It is, in my view, clear that the issue of coal prices was an important one at the meeting and that it explained much of the anger which drove the employees to determine upon this course of action. Mr Maher's own statements confirm this. The inescapable conclusion is that the strike action was directed to this even if it was also a response to the notification and service of the Orders. The resolution itself is not conclusive of the question of purpose or even very weighty. It is likely, in my view, that it was recognised by some persons present at the meeting that any further strike action must be distanced from the prohibited purpose. A statement by Mr White, District Vice-President, following the meeting is telling. He explained to a manager of BHP Steel that the extension of the stoppage was in protest at the contempt of BHP in harassing and intimidating members in the middle of the night, to which he felt it necessary to add "This has got nothing to do with coal prices". 77 There is no doubt, in my view, that the CFMEU's conduct at the meeting was designed to, and had the effect of, encouraging the employees not to cease the strike action and to take it further. Mr Maher's words were an active encouragement to continue an expression of anger against the company. One might expect rank and file members to have been seeking guidance from the Executive and the Branch. Their statements before the meeting to persons notifying them of the Order bear this out. It is not difficult to imagine that the address by Mr Maher to the meeting did nothing to lessen the anger which he was determined to keep alive. He took no serious steps to dissuade them from further strike action. If he did speak some words of non-support they were very few. They could hardly have been thought sufficient for that purpose. The members could not have been left in any doubt about Mr Maher's and the CFMEU's lack of sincerity in not supporting the strike. They would have understood they were being encouraged to do so.

inferences 78 In my consideration of the evidence I have drawn inferences which do not assist the CFMEU. In many cases, no evidence to the contrary was put forward to dispel a possible inference. The witnesses in question were available. If one was overseas, arrangements could have been made for the reception of his evidence. I am therefore somewhat fortified in my view that the inferences I have drawn are likely to be correct. It was submitted by senior counsel for the CFMEU that the Court is not in a position to draw any inferences about aspects of the evidence for the reason that a number of witnesses to the events in question, indeed directly involved in them, were not called by it. Reliance was sought to be placed upon cases concerning inferences available where an accused has not given evidence. It was then submitted that since the CFMEU did elect to give some evidence, no such adverse inference was possible. I do not consider this to be a correct approach. The question is not whether an inference of guilt may be drawn, as sometimes arises in criminal cases. It is whether inferences are available from the evidence presented which may be confirmed to an extent by a failure to rebut them by calling available witnesses. 79 The rule in Jones v Dunkel (1959) 101 CLR 298 requires that there be inferences available from the evidence which favour the other party. The failure of the CFMEU to call evidence in these circumstances does not provide positive evidence of a fact or circumstance, but, unexplained, leaves the Court in a position where opposing inferences can be more confidently drawn because they stand uncontradicted by the person who could say something about the true state of the facts: Jones v Dunkel, 308; Minister for Aboriginal & Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40, 62. It was also submitted, in connection with the application of the rule, that BHP Steel could have called the witnesses in question. I do not accept the submission. The rule looks to the party who might reasonably be expected to call the witness in question in their case.

the charges 80 For contempt to be proved it is necessary that the act or omission, which breaches the Court's injunction, be deliberate in the sense that it is not merely casual, accidental or unintentional: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98. The wrongful conduct is then adjudged to be wilful. The standard of proof is beyond a reasonable doubt, of the necessary elements: Witham v Holloway (1995) 183 CLR 525, 534-5. 81 The CFMEU is a corporate body (see s 92 WRA) and as such conducts itself through its proper officers. The question of whether the District Branch could itself have acted to end the strike was ventilated in submissions, in connection with the CFMEU's liability for the Branch Officers' inaction. Submissions in this regard were addressed to the Union rules. It seemed to me that the rules contemplate the Central Executive having authority with respect to national strikes, and a District Branch having authority only with respect to industrial action relevant only to the district, although it is arguable that the Central Executive's authority overlaps here too. The strike was at all relevant times a national one. I do not propose to deal with the construction of the rules in any detail. The question whether contempt is committed is not, in my view, concluded by reference to the persons in whom authority is vested to authorise industrial action. Such an approach assumes that it is necessary for a decision to be made by the Union that a strike should be ended, when a Court has ordered that to be effected. All that is required is compliance and steps taken to bring that result about. Of course one would not expect a junior member of the office staff of a company to take the necessary action, although one might expect they would attempt to contact someone in a position of authority so that the necessary notification can be sent out. It may be necessary in some cases of inaction to consider why the requirements of an Order were not brought to the attention of such a person, but this is not such a case. 82 In the present case, one may infer that some District Branch officials did bring the matter of the Order to the attention of members of the Central Executive. If they had not been able to do so they could reasonably be expected to take action themselves, since they are likely to be regarded by the members as having the necessary authority to do so, and nothing in the Union rules could prevent their acting in compliance with an Order. Mr Vickers' actions in calling off the strike in Queensland were undertaken in his capacity as District President. If District Branch officials did notify some members of the Executive of the Order and then acted in concert with them in disobeying the Order, the matter assumes a different complexion. Acting in concert with or even under the direction of higher-ranking officials is not likely to provide a defence to a charge of contempt by interfering with the course of justice: see Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342, 355. But this is not a case where individual members of the District Branch or Lodge are charged. The inaction of the District Branch officials does not assume importance in the context of the Union's behaviour on the evidence. 83 Mr Maher was told about the Order by Mr Humphreys. He was told that an injunction had been obtained against the Union relating to the price dispute. Given Mr Maher's experience he would have understood that there had been an Order made by the Court prohibiting the strike action. It is not necessary that he be shown to be aware of its full terms: Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535, 538. The CFMEU had not at this point been personally served and it was not served until the following morning, but in these proceedings fines are sought and the embargo of O 37 r 2(1) does not apply: Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110, 113. In any event that rule contains an exception, in the case of notification by other means, such as is recognised by the common law: r 2(5) (and see Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110). It is not necessary to determine whether other members of the Executive were aware. It was Mr Maher's obligation, on behalf of the Union to notify anyone necessary to effect an end to the strike. It is likely that he did so at the conference dinner and that others were then informed. If Mr Fisher was not told earlier, Mr Everill almost certainly would have told him when he spoke to him at 6.48 am. Even at this time he and Mr Maher could have taken steps to bring the strike to an end, as Mr Maher effectively conceded in his evidence. 84 Lodge Officials and members of the Union were waiting for advice from the Executive. Without it they would not act upon BHP Steel's advices about the Order. It was not suggested that there was no action open to the Executive or Mr Maher to put matters in train. Notification was clearly possible. One may observe how promptly the strike had been notified the day before. It would also have been prudent to call off the meeting in the circumstances. The decision to continue with the meeting and the conduct of Mr Maher at it is evidence of a determination, on the part of the CFMEU, to continue the strike action. 85 I am satisfied that the CFMEU through Mr Maher, acted at the meeting in such a way as to ensure a continuation of strike action. The resolution to effect further strike action was in large part the result of that conduct, even if one allows for the expression of some annoyance about service on union officials. It does not seem possible reasonably to draw any other inference, given the course Mr Maher undertook and in the absence of a credible explanation on his part or other evidence providing that explanation. 86 The CFMEU continued the strike action, the ban upon work implicit in it and the authority to members to stop performing work. It procured and authorised members to further do so at the meeting. Charges (a), (b), (c) (d) and (f) are therefore made out. The conduct involved a breach of the Orders to cease the strike and not to continue or take further strike action. It was not only deliberate in the sense referred to in the authorities, it must have resulted from a considered decision. 87 It was suggested by senior counsel for the CFMEU in argument that the Order must be read strictly, in its requirement that the action to be undertaken commence from the time of the making of the Order. Since the CFMEU could not be shown to have knowledge of the terms of the Order from the time it was made, it could not be guilty of contempt and the charges must fail. The Order reasonably construed requires cessation of the strike immediately upon the Union having knowledge of the Order and its restraints continue until the time nominated. 88 Reliance was placed by the CFMEU on the AIG case in the respects I have dealt with above. Regrettably, it did not at the relevant time heed the statements of Merkel J in that case: "The rule of law in a democratic society does not permit any member of that society, no matter how powerful, to pick and choose the laws or court orders that are to be observed and those that are not. Maintenance of the rule of law in our society does not only require that parties are able to resort to courts to determine their disputes (Patrick Stevedores Operation No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 641 at [1] per Hayne J), it also requires that parties comply with the orders made by the courts in determining those disputes." 89 I am satisfied beyond reasonable doubt that the Construction, Forestry, Mining and Energy Union has been guilty of contempt and there will be a declaration accordingly, and an Order that it pay the applicant's costs of the motion. I will adjourn the further hearing of the motion on the question of penalty to a date to be fixed. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel .

Associate: Dated: 15 December 2000 Counsel for the Applicant: Mr W Sofronoff QC with Mr L Kelly

Solicitor for the Applicant: Blake Dawson Waldron

Counsel for the Respondent: Mr R Kenzie QC with Ms C Howell

Solicitor for the Respondent: RL Whyburn & Associates

Date of Hearing: 25, 26, 27 and 31 October 2000