BlueScope Steel Limited v Australian Workers' Union

WIGNEY J: 1 The applicant, BlueScope Steel Limited, is a steel producer with operations throughout Australia including, relevantly, a manufacturing facility in Port Kembla, New South Wales, known as the Springhill Works. Many of its employees at the Springhill Works were members of the respondent employee organisation, the Australian Workers' Union (AWU). On the morning of 26 May 2016, a large number of the employees of the Springhill Works held a meeting. The meeting commenced at about 6.30 am. That was about the time that the day shift would ordinarily commence. Mr Wayne Phillips and Mr Branko Gorgievski, both officials of the AWU, attended and addressed the meeting. The meeting was organised by the AWU. At the meeting, the employees voted in favour of a 24-hour strike or stoppage. Both the meeting and the 24-hour strike constituted industrial action. 2 The AWU accepted and admitted that, in organising the meeting, it organised industrial action and thereby contravened s 417 the Fair Work Act 2009 (Cth). The principal issue in this proceeding is whether, as contended by BlueScope, the AWU also organised the industrial action constituted by the 24-hour strike, or was otherwise knowingly concerned in, and therefore involved in, the employees' contravention of s 417 arising from the strike. Was the AWU's contravention of s 417 limited to the meeting, or did it extend to the 24-hour strike which occurred or continued after the meeting? 3 At about the same time the following day, many of the Springhill Works employees met again. By this time, the Fair Work Commission had ordered that the employees end the strike and not engage in any further industrial action. That would include attending any further meetings during work time. At about 8.15 am, Mr Phillips and Mr Gorgievski met with Mr Raymond Peters and Ms Stacey Sutherland, the manager and human resources advisor of the Springhill Works plant respectively. During that meeting, Mr Phillips and Mr Peters discussed, amongst other things, whether BlueScope was going to dock the employees four hours' wages in respect of the meeting that had been held that morning. That was apparently a reference to s 474 of the Fair Work Act, which prohibits an employer from making payments to an employee in respect of periods during which the employee was engaged in unprotected industrial action. 4 The second issue in this proceeding is whether, by reason of things said by Mr Phillips during his meeting with Mr Peters and Ms Sutherland, the AWU contravened s 475(2) of the Fair Work Act, which prohibits an employee organisation from asking an employer to make a payment to an employee if the employer would contravene s 474 by making that payment. Did Mr Phillips ask Mr Peters not to dock the employees' wages, and thereby ask him to make a payment which would contravene s 474, or was he simply asking Mr Peters what BlueScope's position was in that regard? 5 The parties agreed, and the Court ordered, that the question whether the AWU contravened s 417 of the Fair Work Act in respect of the 24-hour strike, and the question whether the AWU contravened s 475 of the Fair Work Act, should be determined prior to and separately from the question of what relief should be granted in respect of any such contraventions.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES 6 Section 417(1) of the Fair Work Act provides as follows: A person referred to in subsection (2) must not organise or engage in industrial action from the day on which: (a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or (b) a workplace determination comes into operation until its nominal expiry date has passed; whether or not the industrial action relates to a matter dealt with in the agreement or determination. 7 The persons referred to in s 417(2) include, relevantly, an employee and an employee organisation covered by the agreement. 8 There was no dispute that the employees at the Springhill Works were covered by an enterprise agreement approved by the Fair Work Commission. Nor did the AWU dispute that it was an employee organisation covered by that agreement. 9 Section 19(1) of the Fair Work Act defines "industrial action" as including, relevantly, "a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work". Section 19(2) provides that "industrial action" does not include, relevantly, "action by employees that is authorised or agreed to by the employer of the employees". 10 It should also be noted in this context that it was common ground that the industrial action in issue in this proceeding was not "protected industrial action" as defined in s 408 of the Fair Work Act. 11 The word "organise" is not defined in the Fair Work Act. It must therefore be given its ordinary meaning. The word "organise" is, however, "of large connotation": Pirrie v McFarlane (1925) 36 CLR 170 at 203. Careful attention must therefore be given to the statutory context in which the word appears. In Australian Building and Construction Commissioner v Huddy [2017] FCA 739, White J reviewed a number of industrial cases which had considered the meaning of the word "organise" in the context of s 417 or cognate or analogous provisions. His Honour expressed the view (at [67]) that the "organisation" of "industrial action", for the purposes of s 417 of the Fair Work Act, involves "the intentional arranging, bringing about, putting in place, procuring or coordinating the action in question" and that "organising has the connotation of positive conduct which is intended to, and does, induce or procure others to engage in conduct and/or which marshals or coordinates the activities of those who are willing to do so". 12 White J's opinion concerning the meaning of "organise" in the context of s 417 of the Fair Work Act has been accepted and approved by single judges in a number of subsequent cases: Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 at [50]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83 at [95]; Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363 at [80]. 13 Section 475(2) of the Fair Work Act provides as follows: An employee organisation, or an officer or member of an employee organisation, must not ask an employer to make a payment to an employee if the employer would contravene section 474 by making the payment. 14 Section 474 of the Fair Work Act, which is referred to in s 475(2), is not an entirely easy provision to understand. Section 474(1) is in the following terms: If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to: (a) if the total duration of the industrial action on that day is at least 4 hours-the total duration of the industrial action on that day; or (b) otherwise-4 hours of that day. 15 What s 474(1) appears to prohibit is an employer paying an employee in relation to the period that the employee was engaged in industrial action that was not protected industrial action against the employer. Where the industrial action lasted for four hours or more on a particular day, the employer must not pay the employee for the total duration of the day on which the industrial action took place. If the industrial action lasted for less than four hours on a particular day, the employer must not pay the employee for four hours of that day. Put in colloquial terms understood by many employers and employees, an employer is effectively required to "dock" an employee's pay if the employee engages in unprotected industrial action. If the duration of the industrial action is less than four hours, the employee's pay must be docked four hours. That is the case even if the industrial action was for as short as 15 minutes. 16 Section 539 of the Fair Work Act sets out, amongst other things, which provisions of the Fair Work Act are civil remedy provisions and which persons have standing to apply to the Court for orders in relation to a contravention or proposed contravention of each provision. Sections 417(1) and 475 of the Fair Work Act are both civil remedy provisions: column 1 of item 14 and column 1 of item 24 of the table in s 539(2). An employer has standing to apply to the Court for orders in relation to a contravention of both ss 417(1) and 475, subject to s 540 of the Fair Work Act: column 3 of item 14 and column 3 of item 24 of the table in s 539(2). Section 540 provides, relevantly, that an employer only has standing if the employer is affected by the contravention. 17 There is no dispute that BlueScope was affected by any contravention of s 417(1) or s 475 of the Fair Work Act by the AWU. BlueScope accordingly has standing to apply to the Court for orders in relation to the alleged contraventions. 18 Section 793(1) of the Fair Work Act provides for the circumstances in which the conduct of an officer, employee or agent of a body corporate is taken to have been the conduct of the body corporate. It is common ground that the AWU is a registered employee organisation under the Fair Work (Registered Organisations) Act 2009 (Cth) and that, by virtue of s 27 of that Act, it is taken to be a body corporate. Section 793(1) of the Fair Work Act provides as follows: Any conduct engaged in on behalf of a body corporate: (a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official; is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body. 19 Section 793(2) of the Fair Work Act facilitates proof of the state of mind of a body corporate. The state of mind of a person includes the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the intention, opinion, belief or purpose: s 793(3) of the Fair Work Act. Section 793(2) provides as follows: If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show: (a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and (b) that the person had that state of mind. 20 Section 550 of the Fair Work Act provides for a form of accessorial liability in respect of contraventions of civil remedy provisions. It is in the following terms: (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. (2) A person is involved in a contravention of a civil remedy 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. 21 In order to prove that a person was, relevantly, knowingly concerned in or party to a contravention by another person, it is necessary to prove that, by some act or omission, the person in truth implicates himself, herself or itself in the contravention by the other person: Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299; [2007] FCAFC 87 at [26]; Giorgianni v The Queen (1985) 156 CLR 473 at 479-480; R v Tannous (1987) 10 NSWLR 303 at 307-308; Ashbury v Reid [1961] WAR 49 at 51. It must also be proved that the person was an intentional participant, with knowledge of all the essential elements constituting the contravention: Yorke v Lucas (1985) 158 CLR 661 at 670.

Uncontroversial background facts 22 The relevant factual background was mostly not in dispute. The main factual dispute in relation to the alleged contravention of s 417 concerned what was said and done by the relevant AWU officials at the meeting of the Springhill Works employees on the morning of 26 May 2016. The main factual dispute concerning the alleged contravention of s 475(2) concerned the proper characterisation or interpretation of the conversation between Mr Phillips of the AWU and Mr Peters of BlueScope on the morning of 27 May 2016. 23 Following is a brief summary of the uncontroversial background facts applicable as at May 2016. 24 BlueScope operated the Springhill Works. The Springhill Works had three departments: a cold milling department, known as the Coupled Pickled Cold Mill, which produced cold rolled coil products; metal coating facilities, including three production lines (MLC1, MLC2 and MLC3); and a painting, finishing and dispatch department, which included a paint line facility known as Continuous Paint Line No. 3. 25 Mr Peters was the manager of the Springhill Works. He was responsible for the operations, including the safety of the environment and the production of all of the lines at the Springhill Works. 26 Ms Sutherland was employed by BlueScope as Senior Human Resources Advisor. 27 Mr Matthew Burke was employed by BlueScope as a Shift Team Leader in the painting and finishing department at the Springhill Works. 28 Mr Geoff lngate was employed by BlueScope as Shift Team Leader on B crew on the Continuous Paint Line No. 3 at the Springhill Works. 29 Mr David McMaster was employed by BlueScope as a Shift Technical Officer on D crew on the Coupled Pickled Cold Mill at the Springhill Works. 30 Mr John Hefko was employed by BlueScope as Shift Team Leader on A crew on the Galvanising Line 2. 31 Mr Daniel Cadwallen was employed as a Relief Shift Team Leader in the finishing area of the painting and finishing department at the Springhill Works. 32 Many of the operators and trades assistants employed by BlueScope at the Springhill Works were members of the AWU. The AWU was an employee organisation and industrial association for the purposes of, or as defined in, the Fair Work Act. It was also registered under, and had rules that make provision as required by, the Registered Organisations Act. The AWU was entitled to represent the industrial interests of operations employees employed by BlueScope at the Springfield Works. 33 Mr Phillips held the position of Branch Secretary of the AWU's Port Kembla, South Coast and Southern Highlands Branch. 34 Mr Gorgievski held the position of Branch President of the AWU's Port Kembla, South Coast and Southern Highlands Branch. 35 Mr David Hancock held the position of Assistant Branch Secretary of the AWU's Port Kembla, South Coast and Southern Highlands Branch. 36 Mr Martin Stephens was an employee of BlueScope and a delegate of the AWU. 37 The BlueScope Steel Springhill Workplace Agreement 2015 had been in force and effect pursuant to the Fair Work Act from 25 November 2015. It covered employees of BlueScope who were employed at the Springhill Works as operators and trades assistants and who were members or eligible to be members of the AWU. The nominal expiry date of the Workplace Agreement was 23 July 2018. 38 The shift arrangements for the production lines in May 2016 were as follows. 39 Most of the operators and trades assistants who were employed at the Springhill Works were shift workers and worked on a rotating roster pattern comprising 12-hour day shifts and night shifts. The usual day shift start time for the employees was 6.30 am and the usual night shift start time was 6.30 pm. There were, however, arrangements in place known as "hot seat changeover". The purpose of the hot seat changeover arrangements was to ensure that the lines were in continuous operation. That meant that employees could commence their shift and relieve an employee on the previous shift before the usual start time.

Industrial action on 26 and 27 May 2016 40 The events that occurred at the Springhill Works on 26 and 27 May 2016 were the subject of some dispute. It is nevertheless of some utility to outline what was not in dispute. 41 On 26 and 27 May 2016, certain operators and trades assistants employed by BlueScope at the Springhill Works, who were members or eligible to be members of the AWU and were covered by the Workplace Agreement, engaged in industrial action. That industrial action was not "protected industrial action" within the meaning of that term in s 408 of the Fair Work Act. 42 The industrial action engaged in by the employees on the day shift on 26 May 2016 commenced at 6.30 am, at which time the employees attended a meeting without BlueScope's authority. The meeting took place in a car park at the Springhill Works. It was organised by the AWU. Messrs Phillips, Gorgievski and Hancock attended the meeting. The meeting concluded at 8.03 am. 43 The day shift employees did not resume work at the conclusion of the meeting. 44 The question whether the AWU contravened s 417 of the Fair Work Act in relation to the industrial action which occurred or continued after the conclusion of the meeting largely hinges on what exactly was said and done at that meeting. The evidence of what was said and done at the meeting was in contest and will be considered in detail later. 45 On the afternoon of 26 May 2016, proceedings took place in the Fair Work Commission in Sydney before Vice President Hatcher. Mr Phillips appeared on behalf of the AWU in those proceedings. At the conclusion of the proceedings on 26 May 2016, the Fair Work Commission issued orders pursuant to s 418 of the Fair Work Act which were binding on BlueScope, the AWU and the employees at the Springhill Works who were engaged to perform work covered by the Workplace Agreement. Those orders took effect from 5.30 pm on 26 May 2016. The orders included an order that the "employees must stop and not engage in any industrial action", which included strike action engaged in by the employees as at the commencement of the order, strike action by night shift employees who were due to commence work at 6.30 pm on 26 May 2016, any meeting of employees during work time on 27 May 2016, and any strike action by employees on 27 or 28 May 2016. 46 Despite the order, the night shift employees at the Springhill Works did not attend for work at or around 6.30 pm on 26 May 2016 and did not perform work on the night shift which ended at 6.30 am on 27 May 2016. 47 On 27 May 2016, day shift employees at the Springhill Works met at around 6.30 am in the visitors' car park at the Springhill Works. That meeting was not authorised by BlueScope and constituted industrial action which was not protected industrial action. 48 Messrs Phillips and Gorgievski attended the visitor's car park at the Springhill Works and addressed the employees who were present at the meeting. BlueScope does not allege that the AWU organised the meeting. 49 At about 8.15 am on 27 May 2016, Messrs Phillips and Gorgievski attended a meeting with Mr Peters and Ms Sutherland in BlueScope's administration building. The question whether the AWU contravened s 475(2) of the Fair Work Act largely hinges on the proper characterisation or interpretation of what was said by Mr Phillips to Mr Peters at this meeting.

BLUESCOPE'S CASE, the awu's defence AND the KEY ISSUES 50 BlueScope's case was that the AWU organised the industrial action by the employees at the Springhill Works which began at 6.30 am on 26 May 2016 and continued until 6.30 am on 27 May 2016. It alleged that the AWU, by its officer or official, Mr Phillips, organised the meeting of employees which occurred between 6.30 am and 8.03 am on the morning of 26 May 2016. At that meeting, a decision was taken to engage in a 24-hour stoppage of work and to organise a further meeting at 6.30 am on 27 May 2016. 51 The AWU admitted that it organised the meeting of the employees which occurred on the morning of 26 May 2016 and that the day shift workers who attended that meeting engaged in industrial action. The AWU accordingly admitted that it organised the industrial action constituted by the attendance of the employees at the meeting. 52 The AWU denied, however, that it organised any industrial action that occurred after the meeting concluded and the employees dispersed. The AWU's case was that the meeting was organised at the demand or request of the employees to discuss their grievances arising from, amongst other things, significant workplace changes proposed by BlueScope. It was not organised to consider or vote on a 24-hour strike. The proposal to strike was raised by the workers. Mr Phillips and Mr Gorgievski did not arrange or organise the vote in relation to the proposed strike. Indeed, they sought to dissuade the employees from engaging in any industrial action in the form of a strike. The employees' decision to vote in favour of a stoppage of work was against the advice of Mr Phillips and Mr Gorgievski. So too was the decision taken by the employees to hold another meeting the following day. 53 The first key issue for determination, therefore, is whether the AWU organised the industrial action that occurred after the meeting held on the morning of 26 May 2016 and up to 6.30 am on 27 May 2016. Did the AWU only organise the meeting, or did it also organise the 24-hour strike that occurred after the meeting? 54 BlueScope contended, in the alternative to its case that the AWU organised the strike, that the AWU was nevertheless "involved in" the employees' contravention of s 417 of the Fair Work Act arising from the strike because the AWU was "knowingly concerned in or party to [that] contravention": s 550(2)(c) of the Fair Work Act. BlueScope's case in that regard was limited to the allegation that the AWU, through its officials, Messrs Phillips and Gorgievski, conducted and addressed the meeting of the employees on the morning of 26 May 2016. The implication was that something said or done by either Mr Phillips or Mr Gorgievski at that meeting somehow contributed to or assisted the industrial action, in the form of the strike, which was subsequently engaged in by the employees. 55 The AWU contended that, while it organised the meeting on 26 May 2016, nothing said or done by Mr Phillips or Mr Gorgievski in any way contributed to or assisted the industrial action taken by the employees after the meeting. Indeed, as already noted, the AWU's case was that Mr Phillips sought to persuade the employees not to engage in any strike. 56 The second key issue for determination, therefore, is whether anything said or done by either Mr Phillips or Mr Gorgievski at the meeting on the morning of 26 May 2016 somehow contributed to, or assisted the action taken by the workers in the form of the strike that occurred after the meeting. 57 BlueScope alleged that the employees also engaged in industrial action on 27 May 2016. That industrial action comprised the meeting held at 6.30 am on the morning of 27 May 2016 and the failure of the employees to attend for, or carry out, any rostered work before approximately 10.30 am. BlueScope did not, however, allege that the AWU organised that industrial action. 58 BlueScope's case in relation to the AWU's contravention of s 475(2) of the Fair Work Act was that Mr Phillips requested BlueScope to make payments to employees who had engaged in industrial action by attending the meeting at 6.30 am on 27 May 2016. That request was said to have been made by Mr Phillips at a meeting which he and Mr Gorgievski had with Mr Peters and Ms Sutherland at approximately 8.15 am on 27 May 2016. 59 The AWU denied that Mr Phillips made any such request. 60 The third key issue for determination, therefore, is whether anything said by Mr Phillips at the meeting he and Mr Gorgievski had with Mr Peters and Ms Sutherland on 27 May 2016 constituted a request to BlueScope to make payments to the employees who had engaged in the relevant industrial action. 61 BlueScope claimed that it suffered loss and damage arising from the AWU's contraventions of ss 417 and 475 of the Fair Work Act, that it was entitled to an award of compensation for its loss or damage pursuant to s 545 of the Fair Work Act, and that the AWU was liable to pay pecuniary penalties for its contraventions of ss 417 and 475 of the Fair Work Act. The parties agreed, however, and the Court ordered, that the question whether the AWU contravened either s 417 or s 475 of the Fair Work Act was to be determined first and separately to the question of the appropriate relief should those contraventions be established.

did the awu organise the 24-hour strike? 62 As has already been noted, the AWU admitted that it organised the industrial action constituted by the meeting that occurred between 6.30 am and 8.03 am on the morning of 26 May 2016. It denied organising the strike that occurred after that meeting and continued up to 6.30 am on 27 May 2016. The first issue for determination is whether the AWU organised that strike. That issue hinges primarily on the determination of what was said and done by the AWU officials who attended the meeting on the morning of 26 May 2016. To a certain extent, however, it also involves the consideration of other events that occurred following the meeting.

BlueScope's evidence 63 The evidence adduced by BlueScope concerning the events of 26 May 2016 was fairly limited. It called oral evidence from Mr Peters, Ms Sutherland and Mr Burke. BlueScope also read affidavits sworn or affirmed by Messrs Cadwallen, McMaster, Ingate and Hefko. The evidence of Messrs Cadwallen, McMaster, Ingate and Hefko was uncontested. 64 As will be seen, none of BlueScope's witness were actually present at, or heard what was said at, the meeting.

The evidence of Mr Peters 65 On the morning of 26 May 2016, Mr Peters arrived at the Springhill Works at about 6.20 am. When he drove into the entrance of the plant, he observed that there were a number of people standing on the median strip between the entrance and exit lanes. He recognised some of those people as Mr Phillips, Mr Gorgievski and Mr Hancock. There were also a number of employees in the visitors' car park, which was on the left-hand side of the entrance. 66 Mr Peters parked his car and went into his office. He observed, from the window of his office, employees continuing to arrive at the plant in their cars and, after parking, walking to the visitors' car park. 67 At 6.25 am, Mr Peters walked over to the security cabin to check that the security officer was on duty and to ensure that there was no obstruction to vehicles entering or leaving the plant. He then returned to his office. 68 Mr Peters did not hear anything that was said at the meeting. 69 At about 7.04 am, Mr Peters received a telephone call from Mr Phillips. During that call, Mr Phillips asked Mr Peters if he was going to dock the employees who were at the "gate meeting". Mr Peters asked Mr Phillips what he was doing there and what was going on. Mr Philips replied that he wanted to talk to the "troops". Mr Peters asked him, "what about" and Mr Phillips replied, "[t]he attacks from you people". Mr Phillips asked Mr Peters again whether he was going to dock the employees. Mr Peters said that he would have to conduct an investigation, to which Mr Phillips replied,"I will take that as a yes" and hung up. 70 At the time Mr Peters had the conversation with Mr Phillips, Mr Peters knew that if employees who attended the meeting were engaging in industrial action, he was required by the Fair Work Act to dock their pay a minimum of four hours. When he told Mr Phillips that he would have to conduct an investigation, the investigation he was envisaging was one which would ascertain which of the employees who attended the meeting were meant to be at work, and which employees had finished their shift and were therefore on their own time. 71 Mr Peters attended the Fair Work Commission later in the day. He agreed that Mr Phillips, who appeared at the hearing on behalf of the AWU, did not oppose the making of the orders that were ultimately made by the Commission that day. He could not say one way or the other whether Mr Phillips assisted the Commission in making the findings that it needed to make before making the order. He agreed that Mr Phillips may have told the Commission something like, "[i]t's not our intention to prolong the dispute. It's our intention to try and calm down some of the anger from our members", but he had no exact recollection of that occurring.

The evidence of Ms Sutherland 72 Ms Sutherland arrived at the Springhill Works at 7.20 am on 26 May 2016. As she drove into the plant, she observed a group of approximately 50 to 60 BlueScope employees gathered in the visitors' car park. 73 After she parked her car, Ms Sutherland went to Mr Peters' office. From there, she observed the employees standing close together in a group. They were facing away from her and appeared to be looking in the same direction, which suggested to her that they were having a meeting. She did not see if the employees were looking at a particular person.

The evidence of Mr Burke 74 Mr Burke started work at the Springhill Works at approximately 5.30 pm on 26 May 2016. When he arrived, the day shift team leader, Mr Ingate, told him that the operators had commenced industrial action that day and that the company was seeking orders from the Fair Work Commission for the operators to return to work. He subsequently learnt that those orders had been made. He then telephoned his manager, Mr Gary Meta, and was told by Mr Meta to telephone the operators and advise them of the orders and the requirement that they return to work. Mr Burke began telephoning the operators at about 6.15 pm. 75 One of the employees that Mr Burke called was Mr Stephens. He called Mr Stephens at about 7.00 pm. He told Mr Stephens that the Commission had ordered that the strike action must stop, that "the strike today was illegal", and that he should return to work for the night shift. Mr Stephens' response was: I don't give a fuck what you say. I've been getting phone calls all night from the blokes and I've rang the union and spoke to them. We are having a stop work meeting tomorrow to hear what is going on. This was allowed by the commissioner. 76 Mr Burke then told Mr Stephens that "Judge Hatcher" had issued orders and that all strike action must stop, that the meeting tomorrow must not go ahead, that Mr Stephens was "going … against the court order", and that he may be personally liable for ignoring the order. Mr Stephens' response was: I don't give a fuck, you's can all fuck off, I don't care what you say, we are having the meeting, the union has told us to go, I've rang them we are going. Stop harassing the blokes, don't ring me again, Ill [sic] be bringing this up at the meeting tomorrow. I'm going to sleep…

The affidavit evidence 77 Mr Cadwallen arrived at work at about 7.00 am on 26 May 2016. He noticed that none of the employees were at work and the lines were not running. Mr Cadwallen shared an office with Mr Lupco Trajcevski, who was a "Reclass Officer". Mr Trajcevski was a member of the AWU. At about 8.30 am, Mr Stephens entered the office and asked Mr Trajcevski why he had not attended the gate meeting. Mr Trajcevski said that he did not know about the meeting and had come to the office to take some medication. Mr Stephens then said to Mr Trajcevski: "go home, we are on strike for 24 hours". 78 Mr McMaster worked the day shift on 26 May 2016. He became aware that a gate meeting was taking place that morning. At some stage after the meeting, Mr McMaster asked some other employees, Mr Brian Tarlinton and Mr Joe Caires, what had happened at the meeting and why they were going on strike. Mr Tarlinton replied: "call Wayne Phillips". 79 Mr Ingate worked on the day shift on 25 May 2016. At about 5.20 pm that day, he received a telephone call from Mr Stephens. Mr Stephens told Mr Ingate that he required a "threader in the line" by 6.30 am on 26 May 2016 because a gate meeting would be taking place. A threader is used when it is necessary to stop a paint line. 80 Mr Ingate attended work at about 5.40 am on 26 May 2016. Shortly after he arrived, he received a call from Mr Stephens. Mr Stephens again requested Mr Ingate to arrange a threader to be put in the line ahead of the meeting. Mr Ingate refused. He received another call from Mr Stephens at 6.04 am during which Mr Stephens said, amongst other things, that he was going to arrange for a threader to be put in. By about 6.31 am the line had stopped. At about 8.15 am, Mr Stephens called Mr Ingate again and told him that there would be a "stop work" for 24 hours and that there would be another gate meeting at 6.30 am on 27 May 2016. Mr Stephens also said that if the employees were docked four hours for attending the meeting on 27 May 2016, "that would determine the next course of action". 81 Mr Hefko worked the day shift on 26 May 2016. Towards the end of the shift, he became aware of the orders made by the Fair Work Commission. At 5.54 pm he received an email from his manager, Mr Brett Tarrant, in which Mr Tarrant asked him to telephone employees who were due to work the day shift on 27 May 2016. He called 15 employees between about 6.00 pm and 7.20 pm and advised them of the orders made by the Commission. He told them that they were to attend work for their usual shift on 27 May 2016. Two of the employees told him that the union had called a meeting the following morning and they expected to return to work after that meeting.

The AWU's evidence 82 The AWU adduced evidence from Messrs Phillips, Mr Gorgievski and Hancock, each of whom attended the meeting on the morning of 26 May 2016.

The evidence of Mr Phillips 83 Mr Phillips' evidence included some evidence that provided important background and context to the workplace grievances that many of the BlueScope employees had as at 26 May 2016. It is unnecessary to rehearse the detail of that background. Suffice it to say that the negotiation and approval of the Workplace Agreement was contentious and that, according to Mr Phillips, the employees ultimately accepted many conditions which were worse than the previous enterprise agreement. Despite that, following the approval of the Workplace Agreement, BlueScope proposed further significant workplace changes which were causing considerable discontent amongst the employees. In the months prior to May 2016, Mr Phillips was receiving regular reports from Mr Gorgievski that he was "coming under a lot of heat" from the AWU's membership and that he was being accused of "selling them [the employees] out" and being "in the boss's pocket". 84 Mr Gorgievski also advised Mr Phillips that the members were demanding a meeting. Mr Phillips told Mr Gorgievski to arrange something and let him know. Mr Phillips' evidence was that he and Mr Gorgievski had to "talk to [their] membership; they were extremely angry". 85 A few weeks before 26 May 2016, Mr Phillips had authorised two "off shift" AWU delegates meetings to be held at 6.15 pm on 26 May 2016 and 6.15 am on 27 May 2016. An off shift meeting is a meeting where the delegates attend the meeting either before or after their shift. Those meetings were to be held at the AWU's offices. As events transpired, the first of those two meetings was held, though neither Mr Phillips nor Mr Gorgievski attended it. 86 Mr Phillips arrived at BlueScope's Springhill Works at about 6.10 am on the morning of 26 May 2016. Mr Gorgievski was already there when Mr Phillips arrived. Mr Hancock was also in attendance. When Mr Phillips arrived, there were between about 30 to 40 people present. A number of them were milling around in the area between the entrance and exit roads and a few were standing in the car park. The number of people present eventually increased to between about 80 and 90. 87 When Mr Phillips first arrived, he had a brief discussion with Mr Gorgievski about what was going on and "where we go from here". Some of the people present started to have a discussion with him. Mr Phillips and Mr Gorgievski then started to address some of the people about what was going on, but the discussions quickly turned into a "fairly loud shouting match". People were extremely agitated and there was a lot of yelling. It was one of the rowdiest meetings that Mr Phillips had attended for some time. 88 According to Mr Phillips, the people present at the meeting "wanted to know what was - what we were doing to do about it; why we had sold them out" and "why we sold them out at the EBA [enterprise bargaining agreement] talks" and "when we were going to fix this up with the company". One of the comments that came from the crowd was "[w]ell, the way we fix this, we'll go on indefinite strike". Mr Phillips' evidence was that he said the following in response to that suggestion: Well, you're a fucking idiot and you're fucking stupid. We all know that when you're on strike, the company don't talk to us. Indefinite is a long time and eventually you've got to come back here and go - and start the discussions with the company. 89 There was a lot of further arguing. Mr Gorgievski was also talking to the people at the meeting, but according to Mr Phillips, it was hard to hear him over the yelling. Both he and Mr Gorgievski were trying to calm things down. Mr Hancock, who did not have any responsibility for the Springhill Works, was not saying much. 90 As well as talk of an indefinite strike, some people at the meeting raised the possibility of a strike for 24 hours, or 48 hours, or an overtime ban. Mr Phillips' evidence was that he kept arguing that "it was a bit of a nonsense, they shouldn't be doing it" and that "if they do this, we'll end up in court; we'll end up with orders; we're back exactly where we started from". 91 At some stage, there was a "yell-out" for a 24-hour strike. Mr Phillips did not know who yelled that out. Mr Phillips' evidence of what then occurred was as follows: Yes?---A 24-hour stoppage. It was agreed, so everyone said yes. "All those in favour", hands went up; "all those against" and they dispersed. It was just a crazy, crazy situation. I yelled out as - to a couple of people when they were walking away that, "Now, we're going to end up in " - my words - similar were, "Well, we're going to end up in bloody court this afternoon. You people better make yourselves available, because I ain't going up on me own", and they just dispersed. It was, as I said, still pretty heated and angry. Yes. It wasn't good. 92 Mr Phillips made a telephone call to Mr Peters at some stage "to check what was going to happen. Were they going to be docked?". Mr Peters said that "he'd get back to [them]". 93 Mr Phillips attended the hearing in the Fair Work Commission later in the day. Orders were made as he had anticipated. 94 Mr Phillips and Mr Gorgievski drove back to Port Kembla after the proceedings. While they were in the car, Mr Gorgievski made a number of telephone calls to Mr Gorgievski's "known contacts". Some of those calls were made on speaker phone, so Mr Phillips could hear the responses. During those calls, Mr Gorgievski said that orders had been made requiring the resumption of work that night for the night shift. Some of the people that Mr Gorgievski called said that they had "had a few drinks", but Mr Gorgievski said that "the orders are the orders" and they had to return to work. Some of those who were called "were not happy with that - [they] let us know what they felt what we could do with the orders, but we were saying you had to go back to work". 95 Mr Phillips and Mr Gorgievski attended the gate meeting at 6.30 am on 27 May 2016. Mr Hancock did not attend as he had "other issues". Mr Phillips evidence in relation to that meeting was as follows: At that meeting, were there some votes taken?---There were - not formal votes, but certainly hands raised and resolutions put and, again, people offering all sorts of weird and wonderful suggestions what they should do. Again, everything from the indefinite stoppage to we will go out. Out of the - one of the things was for me to go and drag everybody out off the job because people had returned, as far as I knew, that night and certainly that morning. How many people were at this meeting?---Nowhere near, like, the second meeting. 30 people, 40 people, maybe. And as the meeting went on, they dwindled. Some were wandering off. Were they wandering off to work or wandering off home?---A number of them went to the canteen. No. Back to work. Back to work?---Well, back to the direction of the mills. Yes. The direction of the mill. All right?---Yes. 96 Mr Phillips' evidence in cross-examination was that, at the time of the meeting on 26 May 2016, he had been employed by the AWU for around 10 years. Prior to that, he had been with the Australian Metal Workers Union. Mr Phillips agreed that a number of the people at the Springhill Works "know [his] face" and that he had "known a few of them". In response to the question whether he had been an industrial advocate for members at the Springhill Works for many years, he agreed that he had been an organiser for the Springhill Works when he was "in the metal workers", but that Mr Gorgievski dealt with most of the people at the Springhill Works. He had filled in for Mr Gorgievski when he was not available or was on holidays. He also agreed that he had been personally involved in the "mediation process" concerning the Workplace Agreement, which was a "difficult process" for the AWU and its members. 97 Mr Phillips agreed that, in May 2016, the AWU had delegates at the Springhill Works whose role included distributing or disseminating notices, newsletters, documents and messages sent by the union, complying with any reasonable request of an officer of the union and providing the contact details of members at the workplace. Mr Phillips was shown a screenshot of a text message which read: Urgent! Gate Meeting Tomorrow Thursday 26/05/2016 at 6:30 am for all AWU Members in the Watchmans Cabin Car Park Wayne Phillips 98 Mr Phillips' evidence was that this text message would probably have been sent by Mr Gorgievski. He said that he did not "specifically" authorise anyone to send that text message, but that he had asked Mr Gorgievski to "get the guys together" and had enough trust in Mr Gorgievski "for him to use whatever endeavours he had to get to get some people together". He agreed that he called a meeting "to discuss with our members issues that were causing great concern", but that he left the organisation of the meeting up to Mr Gorgievski. He also agreed that the situation at the Springhill Works was regarded by him as so serious that he was prepared to organise a meeting knowing that, if employees attended the meeting during work time, it would be unlawful conduct by them. His evidence was that "[w]hen it gets to the stage where one of my officials is copping it in and outside of work, yes, I need to take some action to find out what was going on". 99 Mr Phillips agreed, in effect, that he knew that any employees who were rostered to commence the day shift at 6.30 am on 26 May 2016 and who attended the meeting would be engaged in unlawful action. He said, however, that he was not sure exactly when employees began the day shift. He left it to Mr Gorgievski to determine the timing of the meeting and who was attending. He knew that BlueScope was obliged to withhold a minimum of four hours pay from members who engaged in unprotected industrial action. The industrial issues facing the members were nevertheless perceived as being serious enough to warrant the calling of the meeting. 100 Mr Phillips knew that the decision taken by the employees at the meeting on the morning of 26 May 2016 was for a 24-hour strike, which would include employees who were scheduled to work on the night shift that night. He agreed that it was likely that many of the employees who were rostered to work on the night shift were not at the meeting. It was, in that context, in effect put to Mr Phillips in cross-examination that he, or to his knowledge, some other AWU official, communicated the decision to take the strike action to the night shift workers. He emphatically denied that proposition. 101 Mr Phillips agreed that, when he appeared before the Fair Work Commission on the afternoon of 26 May 2016, he told the Fair Work Commission that the AWU did not organise the 24-hour strike, but did not tell the Commission that he and Mr Gorgievski had actively attempted to dissuade the members from taking that action. He agreed that, in hindsight, it would have been relevant to advise the Commission that that was the case. He rejected the proposition that he did not advise the Commission that he and Mr Gorgievski had attempted to dissuade the members from taking the action because it was not the true position. 102 Mr Phillips' evidence in cross-examination about how the vote was taken was as follows: No. Tell the court how the vote took place?---On the 26th, the first day? Yes?---We had been through, as I said, a number of options being thrown up. Well, the things we talked about before; you know, the indefinite, the 24, the overtime, all sorts of things. We were getting pretty much nowhere. Someone yelled out, "We're going for 20. I'd move we go for 24." A number of people, "Yes", all seconded, all hands went up, all yes and then they went. Did all hands go up in favour?---I couldn't say all. I don't know. I - - - Well, do you recall was there a unanimous position?---No. It wouldn't have been unanimous. No. All right. Well, what steps did you or Mr Gorgievski take to resolve what the outcome of the vote would be?---We had been trying to resolve it all through the meeting and when the meeting - when the final decision was made by the members to bolt, they went. As I said, I called out to them - or made the general yell in that direction, "Make sure one of you effers is ready for this afternoon, because we'll end up in court; we'll have orders against us; I'm not going to Sydney on me own; you get you backside into the office", and it just split; they went. Well, we might be at cross-purposes, because I think you said the vote was not unanimous?---No. What I want to know is how did you organise to resolve what the decision that was - that you say was taken would be?---We didn't resolve it. They just put their hands up, yelled their voice and they went.

The evidence of Mr Gorgievski 103 Mr Gorgievski was the president of the Port Kembla, South Coast and Southern Highlands branch of the AWU for about five or six years. He had also worked as an organiser for the branch for just over 12 years. From 2015 onwards, he was an organiser at the Springhill Works. 104 Mr Gorgievski's evidence was that the employees at the Springhill Works were upset and "ropable" about what they perceived to be unfavourable conditions in the Workplace Agreement. After the Workplace Agreement was voted on, the employees started abusing him and the union about their conditions. The situation worsened when, not long after the vote, BlueScope embarked on a number of significant changes at the plant. He described the attitude of the employees in the following terms: The attitude of the workers was - if I can use these colourful words that, "Branko, you and the union go and get stuffed. You stuffed us up during the EBA negotiations. We got rolled into the big one which there was no need for us to be part of. Now you're trying to sell us down the train [sic] with more jobs". 105 In the first half of 2016, the employees were demanding to have a "plant" meeting, which is a meeting where all the employees at the site met. They wanted Mr Phillips to attend the meeting. Mr Gorgievski reported the employees' demands to Mr Phillips on a number of occasions. On about 24 May 2016, Mr Gorgievski said to Mr Phillips, "[w]hether we like it or not, the blokes will have a meeting" and Mr Phillips then told him to organise a meeting. A text was sent out to some of the delegates, however, Mr Gorgievski could not recall whether it was sent from his phone, or Mr Phillips' phone. 106 Mr Gorgievski was one of the first to arrive at the meeting at the Springhill Works on the morning of 26 May 2016. He arrived at about 5.45 am. When he arrived, he saw a couple of people standing in the middle of the driveway. Within 10 or 15 minutes, quite a few people started to arrive. Some of the night shift workers who had a "hot seat" changeover arrived early, as did others who arrived for the day shift early. Mr Phillips arrived at about 6.15 am. Within 15 or 20 minutes, most of the people were there and the meeting commenced. Mr Hancock attended the meeting, but he arrived "later on". 107 Mr Gorgievski's evidence was that before he or Mr Phillips could say anything, one of the employees yelled: "[w]e're here now. You two have got to sit there and listen to us, because you don't - we - you work for us. We don't work for you". He also said: "[y]ou're going to sit there and listen to us. Don't sit there and conduct the meetings as you usually do". The meeting was boisterous and Mr Gorgievski endeavoured to settle the employees down on a few occasions, to the point that, at one stage, he lost his voice. 108 Mr Gorgievski described the proposals that were being put by the employees, and his and Mr Phillips' response to them, in the following terms: Were there any proposals about what should be done by the employees?---Yes, there were several proposals. We've heard their concerns. They started off with yelling out: "We - we don't want to lose any conditions. We don't want to take any more pay cuts. But we've got to teach the company a lesson. They're picking up department by department instead of the whole site. They're diving [sic] and conquering. We are here as one. And Branko and Wayne, you've got to understand that, we're talking as one, not individually." And then they started talking about, "Let's teach the company a lesson back like the old days in the sixties and seventies, one out, all out, and we stay out 24 hours." There was talk about 48, stay out indefinite, overtime bans. Numerous proposals come from the floor. And did you or Mr Phillips say anything about those proposals?---Yes, we did. As I said, me and my big voice, I said to the employees, "Fellas, whether you like it or not, we've heard what you've got to say. We will take this up with the company, and let's see what we can get out of it, and if we can't - if you don't like the answers, then we will - there's another process that we will go through legally. We're bound by this agreement that we just signed not long ago. And that's when he come out from the shop floor: "Branko, you go and get stuffed. You're the one that sold us down the drain. Now you want to take us to court ….. We're not going to listen to you. You know. You took us for a ride once. You're going to take us for a ride again." To say the least, that I was abused at that meeting. I started sort of talking back to the employees, to my members. It got a - out of hand a little bit. To his credit, Mr Wayne Phillips pulled my arm, pulled me back, and he said, "Branko, there's no need for that." He addressed the meeting. I sort of stopped back a little bit. He addressed the meeting and says, "No good picking up on Branko - picking on Branko. He's only doing his best. He's right what he's saying to you. Let's go back to the company. We've heard what you've got to say now. I'm here. I understand what your problems are. Now, let me deal with the company. If you go out" - because there was a proposal there for 24, 48 ….. Wayne said to the employees, "Doesn't matter what you do, if you do go out for one minutes, you're not going to get the company to talk to us, because while we're on stoppage, as you all know, the company will never, ever talk to us while we're on - on - on a stoppage." So Wayne tried to calm - calm them down a bit, but to no avail. Your Honour, the blokes I think already had their mind made up. They said, "Well, somebody moved to the 24-hour stoppage. We said, 'Take it easy before you start talking about 24 hours or whatever it is, because you are going to break the law.' Whether we break it or not, we are walking out." And somebody moved then and somebody says, "How many people are going home?" Without a count, there was quite a few people that put their hands up, and people started walking out. And did you try and - - -?---That was to the best of my recollection. Did you try and stop them from walking out?---We did. We said, "People if you - you can walk. But at the end of the day, you're still going to be here because the company will not talk to us while you're on stoppage." 109 Mr Gorgievski drove to Sydney with Mr Phillips on the afternoon of 26 May 2016 to attend the hearing in the Fair Work Commission. After the hearing, and on the drive back from Sydney, Mr Gorgievski made a number of telephone calls to employees. He also received a number of telephone calls. He advised the employees to go into work. 110 Mr Gorgievski also attended the meeting that occurred on the morning of 27 May 2016. He believed that some people did go back to work and some did not, or at least they went back to work, but they did not perform any work. 111 In cross-examination, Mr Gorgievski confirmed that the text message concerning the meeting was sent to some of the delegates on 25 May 2016. While he could not remember the precise process by which the text message was formulated and sent, the effect of his evidence was that it was formulated and sent during a meeting he had with Mr Phillips in Mr Phillips' office. 112 Mr Gorgievski agreed, albeit somewhat reluctantly, that the meeting on the morning of 26 May 2016 was organised by him and Mr Phillips "under the - if you call that instructions from the employees that whether we're going to be at the meeting in the morning or not they were going to be there anyway". He agreed that he and Mr Phillips were the only persons from the AWU who were involved in organising the meeting. 113 Mr Gorgievski agreed that he knew that employees who participated in the meeting when they should have been at work would be engaging in unprotected industrial action and would be acting unlawfully. He also knew that if the union organised a meeting at which employees would be participating in unprotected industrial action, the union would be acting unlawfully. In Mr Gorgievski's mind, the seriousness of the issues that the members and union were confronted with outweighed the consequence of the union acting unlawfully. 114 Mr Gorgievski acknowledged in cross-examination that the meeting could have continued for over an hour. He said that he tried to address the meeting, but every time he did, somebody tried to shut him up by saying something like: "[s]hut the fuck up. We've listened to you enough. Now, we're going to tell you what to do and how to do it. You're not going to tell us anymore". He said, "[g]o back to work". He denied that he said "[i]f you go back to work now, you're not going to get paid for at least four hours". He knew, however, that those employees who were engaging in unprotected industrial action by participating in the meeting would have their pay docked for a minimum of four hours. His evidence was that, during the meeting, he was seeking to persuade the employees to resume working notwithstanding that he knew that they would not be paid for any work they did before 10.30 am. 115 Mr Gorgievski's evidence in cross-examination about the manner and circumstances in which a vote was taken at the meeting to strike for 24 hours was as follows: And what was settled upon at the meeting was a 24-hour stoppage; right?---That's what they - that's what they did, yes. Well, that is not only what they did. That was the decision that was arrived at; correct?---When that decision was raised, I might add, I can honestly truly say now, because I was that upset, Mr Wayne Phillips reaffirmed that on two occasions, "Fellas, you're doing the wrong thing. You cannot be going out on stoppage at the moment. Because if you do, you're not going to achieve anything. As an experienced person, you listen to Branko, what he's saying to you. There is a way of addressing this. Having a meeting with management. You can go home now, but you will not get a meeting with the company. The company will not meet with us while you're on stoppage." He tried to advise to the best of his ability, because at that time I was probably a little bit ….. and too cranky to say anything. And he tried to get them back to work: "This is not the way to resolve the issue." … MR MEEHAN: Thank you, your Honour. Mr Gorgievski, there was a vote taken, was there, to arrive at a decision?---Somebody from - from the back, as I said, said, "Fellas, 24, raise your hand", or whoever did, whether it was unanimous or not, majority of the people put their hand up and started walking out, said, "Yes, we will take that 24." There was people that argued against it. There was people that abstained from probably voting. People were saying, "No, that's not enough. More." But the majority apparently said that. At that time, as I said, I was too upset to do any count or do anything. People just started walking out. 116 Mr Gorgievski was unable to see who it was who called for the 24-hour strike. He just heard a voice. His evidence was that once that vote was taken, the meeting immediately dispersed. 117 At the hearing of the Fair Work Commission on the afternoon of 26 May 2016, Mr Gorgievski was asked whether he wanted to give evidence. He said that he did not. He agreed that in hindsight it would have been relevant to tell the Commission about what had occurred at the meeting.

The evidence of Mr Hancock 118 Mr Hancock was assistant branch secretary of the Port Kembla, South Coast and Southern Highlands branch of the AWU. He reported to Mr Phillips. He did not have any responsibility in respect of the members of the AWU at the Springhill Works. 119 Mr Hancock's evidence was that he came to attend the meeting on 26 May 2016 because Mr Gorgievski asked him to. Mr Gorgievski said: "A lot of fellas there are going to be - going to be there, going to go off". 120 Mr Hancock attended the meeting at about 6.30 am. He saw quite a few people in the car park in different groups. He then saw Mr Phillips come from the "shack". He was talking with Mr Peters. He also saw Mr Gorgievski talking to a number of people. When the men "came together", he was standing "[u]p the back and to the left". He did not take part in the meeting. He just observed. 121 Mr Hancock's account of the meeting was that Mr Gorgievski was continually attacked as being weak and as having made the employees vote "yes" to the Workplace Agreement. There was a lot of yelling and screaming. Mr Gorgievski argued back. He said that he had got Mr Phillips to attend, that the employees should tell Mr Phillips what the issues were, and that Mr Phillips would then go and organise a meeting with the company. Mr Phillips was also trying to calm things down. He was trying to chair the meeting but was unsuccessful. The employees were not listening to Mr Phillips. They were also accusing him of selling them out through the negotiations. 122 As for the manner and circumstances in which a vote was taken to strike for 24 hours, Mr Hancock's evidence was as follows: And did anyone at the meeting make a proposal for something to be done?---There was a few of them made - few proposals. There's definitely a strike. That was argued between Wayne, Branko and - and the members. What do you mean argued between them and the members?---Well, they were opposing it. They were saying no, you know, "You need to go back to work. You need to go back, so we can start talking to the company about the issues you have." The guys didn't have any trust in us and they were - us as the Union. They just - I just told them - told them to piss off. Well, apart from indefinite strike, was there anything else suggested?---Well, that went on for quite - that was an argument between these two and - and the members for some time. That went - went on and on. Then it calmed down a bit. Blokes had started coming to their senses, I - I might say. And then a couple of them just said, "Well, we want a 24 hour stoppage. We're walking now. We will report back tomorrow. So you do what you have to do." Wayne kept telling them - saying, "Well, you have to go back to work because the company is not going to talk to the Union while you're out." Then the - and then the guys just quietened down a little bit. They argued between themselves - a few of them. Then someone mentioned something about a 24 hour stoppage again. He put a motion up. Who put a motion up?---Someone out in the crowd put that motion up. Did you see the person?---Wayne opposed it. Did you see the person who put the motion up?---You see a lot of people. Yes. Okay?---But, you know, I - I weren't friends with these guys. These - they're not my area. Yes. So you said Wayne opposed the motion?---Wayne opposed the notion [sic]. How did he do that?---Wayne got abused over it and then someone - - - Well, sorry - sorry. Just stop. How did he oppose the motion? Do you remember what he said?---"You can't have it. You can't do it." He will get orders against this. "That's - it's an illegal action. You - just give us the issues and we will go to the company to meet." Well, what happened after that?---Someone moved that motion to have - it was more than one that moved the motion to have the 24 hour stoppage. A lot of hands were raised and then that was it. They started walking off. 123 Mr Hancock conducted the delegates meeting on the evening of 26 May 2016. That came about because Mr Phillips, who would usually have conducted such meetings, contacted him and asked him to conduct the meeting because he expected to be in the Fair Work Commission as a result of the action that had been taken on the morning of 26 May 2016. 124 Mr Hancock was cross-examined concerning his recollection of the meeting. His evidence under cross-examination was broadly consistent with his evidence-in-chief. He denied that Mr Phillips and Mr Gorgievski coordinated the "voting process" in relation to the call for the 24-hour strike. His evidence was that nobody, except Mr Phillips and Mr Gorgievski, "spoke against it". His recollection was that there was a show of hands and the meeting then quickly dispersed. He did not see anyone who did not raise their hand.

Findings 125 The evidence plainly shows that the AWU organised the meeting on the morning of 26 May 2016, that some of the employees who attended that meeting were rostered to commence the day shift at or around 6.30 am, and that the attendance of those employees at the meeting was not authorised by BlueScope. The evidence therefore supports a finding that the AWU organised the unprotected industrial action in the form of the meeting that occurred between about 6.30 am and 8.03 am on the morning of 26 May 2016. The AWU contravened s 417 of the Fair Work Act to that extent. 126 The evidence does not, however, establish that the AWU organised the 24-hour strike that the employees voted on at the meeting. The 24-hour strike, which effectively commenced after the meeting and continued up to at least 6.30 am on 27 May 2016, was undoubtedly unprotected industrial action by the employees. That unprotected industrial action was not, however, organised by the AWU. The evidence does not establish that either Mr Phillips or Mr Gorgievski engaged in any "acts of intentional conduct" which brought about, maintained, or contributed in any material way, to the bringing about or maintenance of that industrial action (cf. Huddy at [67]). Nor does the evidence establish that either or both of Mr Phillips or Mr Gorgievski marshalled, rallied, or coordinated the employees to bring about or maintain the 24-hour strike. Indeed, the evidence established, quite to the contrary, that Mr Phillips and Mr Gorgievski not only did not anticipate that the employees would call for and vote in favour of a strike at the meeting, but when that proposal was raised, they did what they could to speak against it and dissuade the employees from taking that action. 127 The account of the meeting given in evidence by Messrs Phillips, Gorgievski and Hancock was broadly consistent. To the extent that there were any differences, they were extremely minor differences which did not cast doubt on the general reliability of the accounts given by the witnesses. 128 While each of Messrs Phillips, Gorgievski and Hancock was extensively and, at times, vigorously cross-examined about their accounts of the meeting, nothing that arose in the course of cross-examination cast any doubt on the credibility and reliability of their evidence concerning the meetings. Each of them presented as an essentially honest and reliable witness who was doing their best to give an accurate account of the events in question. There was nothing implausible in any of their accounts of the meeting. 129 As has already been noted, BlueScope did not adduce any direct evidence from a witness concerning what was said and done at the meeting on 26 May 2016. 130 BlueScope relied on Mr Hefko's evidence that two employees told him at some stage later in the day on 26 May 2016 that "the union had called a meeting the following morning". That evidence is, however, of little, if any, weight in relation to the question whether the AWU organised the strike. It is certainly not capable of outweighing the direct evidence of Messrs Phillips, Gorgievski and Hancock concerning the events of the morning of 26 May 2016. The same can be said of Mr Cadwallen's evidence that Mr Stephens told him, at about 8.30 am on the morning of 26 May 2016, "go home, we are on strike for 24 hours". While Mr Stephens was an AWU delegate, his statement that "we", plainly a reference to the employees, were on strike could scarcely be regarded as an admission that the AWU organised the strike. 131 BlueScope contended that Mr Ingate's evidence that Mr Stephens told him to put a "threader in the line" by 6.30 am suggested that Mr Stephens considered that the strike would occur. The difficulty with that submission, however, is that Mr Stephens' request was equally consistent with the inference that Mr Stephens wanted a threader in the line at 6.30 am because he knew that a meeting was going to be called at that time. That inference, which appears to be the more rational or reasonable inference, suggests no more than that the AWU had organised the meeting. 132 As for Mr McMaster's evidence, the fact that he was told by two BlueScope employees to call Mr Phillips when he enquired as to why they were going on strike is of little, if any, probative value. It may be inferred that the employees told Mr McMaster to call Mr Phillips because they believed that Mr Phillips knew why the employees were on strike because he was at the meeting where the employees aired their grievances, including their grievances with the AWU. It does not follow that the AWU organised the strike. 133 BlueScope did not, in its final submissions, rely on Mr Burke's evidence concerning the statements made to him by Mr Stephens. That is perhaps not surprising. That evidence was of little, if any, weight when it came to determining whether the AWU had organised the strike. Mr Stephens was not an employee or official of the AWU, though he was a delegate. The statements that he made to Mr Burke about what the "union" had said or done did not relate to what the AWU had said or done at the meeting on 26 May 2016. They were part of Mr Stephens' rather animated and belligerent response to being told by Mr Burke that he had to return to work. 134 The statements made by Mr Stephens to Mr Burke were also ambiguous. While Mr Stephens told Mr Burke, on the evening of 26 May 2016, that he had spoken to the union, that "we are having a stop work meeting tomorrow" and "the union has told us to go", it is, at best, unclear whether Mr Stephens intended to assert or imply that the AWU had told him that he did not have to attend work despite the making of the orders. In any event, BlueScope's pleaded case in relation to the contravention of s 417 was limited to the conduct of Messrs Phillips and Gorgievski at the meeting on 26 May 2016. BlueScope did not plead or allege that the AWU organised the strike action because it did not direct the night shift employees to attend work after orders were made by the Fair Work Commission. BlueScope also did not allege that the AWU organised the industrial action that occurred on the day shift on 27 May 2016. 135 BlueScope submitted that the evidence of Ms Sutherland did not accord with the evidence of Messrs Phillips, Gorgievski and Hancock that the meeting was unruly. That proposition is, at best, doubtful, but, in any event, the evidence of Messrs Phillips, Gorgievski and Hancock is to be preferred to the evidence of Ms Sutherland when it comes to the meeting. That is not intended to be a criticism of Ms Sutherland or her evidence. Messrs Phillips, Gorgievski and Hancock were at, or in the very midst of, the meeting. Ms Sutherland was not. She observed it from a distance and from one perspective; from the rear. She did not hear anything that was said at it. Her evidence concerning her observations was, in any event, very general. 136 BlueScope argued that some aspects of the evidence of Messrs Phillips and Gorgievski were implausible or had shortcomings. Those arguments, however, have little, if any, merit. 137 In relation to Mr Gorgievski, it was submitted that his evidence that he was effectively spoken over and did not "get a word in" during the entire duration of the meeting was implausible and inconsistent with the evidence of Mr Hancock. That submission is rejected. The evidence of Messrs Gorgievski and Hancock was broadly consistent; they both said that the meeting was boisterous and unruly and involved a lot of yelling. Neither of the witnesses suggested that they had a recollection of everything that was yelled out during the entire duration of the meeting. 138 As for Mr Phillips, BlueScope submitted that his evidence concerning the text message had shortcomings and was inconsistent with Mr Gorgievski's evidence on that topic. There is perhaps some merit in that submission. The evidence of both witnesses concerning the text message was perhaps the one area of their evidence that was less than impressive. Nevertheless, that evidence was ultimately of very little moment. Both witnesses ultimately agreed that they, on behalf of the AWU, organised the meeting. They did so because that was what the employees had demanded. The precise process by which the text message was formulated and sent was of little significance. Indeed, it is hardly surprising that the witnesses' recollection concerning that issue may have been less than perfect. In the circumstances, this aspect of their evidence did not undermine the reliability and credibility of their evidence concerning what went on during the meeting. 139 BlueScope contended that there were two strong reasons for doubting the evidence of Messrs Phillips, Gorgievski and Hancock that they sought to dissuade the employees from taking any strike action. 140 The first reason was said to be Mr Phillips' strong conviction that the employees should not perform work for which they would not be paid. The evidence was that, at some stage during the meeting, Mr Phillips telephoned Mr Peters and enquired whether the employees would be docked four hours pay for attending the meeting. Mr Peters said, in effect, that they would. It was submitted that, in those circumstances, Mr Phillips would not have had any incentive to dissuade the employees from taking strike action. 141 That submission is rejected. Indeed, if anything, the evidence concerning Mr Phillips' conversation with Mr Peters tended to suggest two things that are quite to the contrary of BlueScope's case. First, the evidence suggested that Mr Phillips expected that the employees would return to work straight after the meeting. Were it otherwise, there was little or no point in making the inquiry of Mr Peters. There could be little doubt that BlueScope would have docked the employees' pay if they engaged in a 24-hour strike, a fact that Mr Phillips would undoubtedly have known. Second, the evidence tended to support Mr Phillips' assertion that he wanted to persuade the employees to return to work straight after the meeting and dissuade them from engaging in a prolonged strike. It appears that he wanted, in effect, to be able to go back to the employees and tell them that if they returned to work straight after the meeting, their pay may not be docked. 142 The second reason advanced by BlueScope for doubting Messrs Phillips and Gorgievski's evidence concerning the meeting related to what Messrs Phillips and Gorgievski did and did not tell the Fair Work Commission at the hearing on the afternoon of 26 May 2016. BlueScope submitted, in effect, that if Messrs Phillips and Gorgievski in truth had sought to dissuade the employees from taking the strike action, they would have advised the Fair Work Commission of that fact. It was common ground that they did not. Indeed, in their evidence, both Messrs Phillips and Gorgievski frankly accepted that, in hindsight, they should have advised the Fair Work Commission that they had tried to prevent the employees from striking. 143 There is perhaps some merit in BlueScope's submission on this point. On balance, however, it provides an insufficient basis to reject the otherwise compelling and persuasive evidence of Mr Phillips and Mr Gorgievski that they did in fact seek to dissuade the employees from striking. It is clear that Mr Phillips told the Fair Work Commission that the AWU did not organise the strike and that the strike action was unplanned and came "out of the blue". In circumstances where the AWU was, in effect, not opposing the orders sought by BlueScope, it was perhaps not entirely surprising that Mr Phillips did not elaborate and tell the Fair Work Commission that he had actively argued against the strike. It must also be recalled that Mr Phillips was not a lawyer and the events of 26 May 2016 were somewhat tumultuous and had taken Mr Phillips somewhat by surprise. It is all too easy, with the benefit of hindsight, and in the cold light of day, to think about things that could or should have been said at the Fair Work hearing. 144 The evidence concerning what was and was not said at the Fair Work Commission also does not undermine the evidence of Mr Hancock, which also supported the conclusion that Messrs Phillips and Gorgievski had sought to dissuade the employees from engaging in the strike action.

Conclusion - The AWU did not organise the strike action 145 BlueScope bore the onus of proving that the AWU organised the 24-hour strike. While the civil standard applies, because BlueScope's allegations were serious and exposed the AWU to penalties, satisfaction on the balance of probabilities is not achieved by "inexact proofs, indefinite testimony, or indirect inferences": Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; [2015] FCAFC 25 at [63]. In considering whether a party has proved its case on the balance of probabilities, the Court is required to take into account: the nature of the cause of action; the nature of the subject-matter of the proceeding; and the gravity of the matters alleged: Evidence Act 1995 (Cth), s 140(2). 146 BlueScope did not discharge its onus of proving that the AWU organised the strike. Indeed, far from establishing that Messrs Phillips and Gorgievski organised the strike action, the evidence in fact established quite the contrary. They endeavoured to prevent it. While the AWU contravened s 417 in organising the meeting, that was the extent of the contravention. The contravention did not extend to organising the 24-hour strike.

WAS THE AWU KNOWINGLY CONCERNED IN THE EMPLOYEES' CONTRAVENTION ARISING FROM THE STRIKE ACTION? 147 BlueScope ultimately did not advance any submissions in support of its alternative case. It did not submit that the evidence established that the AWU was knowingly concerned in, and therefore involved in, the employees' contravention of s 417 of the Fair Work Act insofar as the industrial action the subject of that contravention extended beyond the meeting and included the 24-hour strike. That may well have been because the evidence provided no basis for any such finding. 148 As discussed earlier, to establish, pursuant to s 550 of the Fair Work Act, that the employee organisation was knowingly concerned in, and therefore involved in, the employees' contravention of s 417 arising from the strike action, it was essentially necessary for BlueScope to prove two things; first, that an act or omission by either Mr Phillips or Mr Gorgievski, as officials of the AWU, implicated or involved the AWU in the employees' contravention arising from the strike action; and second, that either Mr Phillips or Mr Gorgievski, again as officials of the AWU, were intentional participants, with actual knowledge of the essential elements constituting that contravention. 149 The difficulty for BlueScope is that, for the reasons already given in the context of the alleged substantive breach of s 417 by the AWU, the evidence does not establish that either Mr Phillips or Mr Gorgievski did anything which in truth implicated or involved them in the contravention by the employees arising from the strike. Nor did the evidence establish that Mr Phillips or Mr Gorgievski were intentional participants in that contravention, with actual knowledge of the essential elements. Indeed, as has already been said, the evidence in fact established that Mr Phillips and Mr Gorgievski endeavoured to dissuade the employees from taking the strike action. They did not, and did not intend to, do anything to assist, encourage or involve themselves in the employees' contravention. 150 It follows that BlueScope failed to prove that the AWU was knowingly concerned in, and therefore involved in, the employees' contravention of s 417 insofar as that contravention related to the unprotected industrial action in the form of the 24-hour strike.

DID THE AWU CONTRAVENE S 475 OF THE FAIR WORK ACT? 151 BlueScope's case that the AWU contravened s 475 of the Fair Work Act was based entirely on the brief conversation that Mr Phillips had with Mr Peters during a meeting which took place at about 8.15 am on 27 May 2016. Mr Gorgievski and Ms Sutherland were also present at that meeting. There was ultimately no dispute concerning what was said by Mr Phillips at that meeting. Ms Sutherland took notes of what was said at the meeting and it was effectively accepted that her notes were an accurate record of the conversation. The question whether the AWU contravened s 475 of the Fair Work Act hinged on the proper interpretation or characterisation of what Mr Phillips said.

The evidence relating to the conversation 152 Mr Peters' evidence was that, during the relevant meeting, "Mr Phillips requested that I pay the employees that had taken - or were taking industrial action that morning". Mr Peters replied that he would "check with Ms Deanne Howard who was the manager of HR for the manufacturing operation". He and Ms Sutherland then left the meeting, went to Mr Peters' office and rang Ms Howard and spoke to her about the "situation". The decision was that BlueScope would dock the employees who were continuing to take industrial action for at least four hours, and that Mr Phillips should communicate that to the managers. Mr Peters and Ms Sutherland then returned to the meeting with Mr Phillips and Mr Gorgievski. That occurred at about 8.45 am. Mr Peters then told Mr Phillips that "we would be, as per the Fair Work Act requirements, docking employees that were not - that were not working or who were continuing to take industrial action". That was the end of the meeting. 153 In cross-examination, Ms Sutherland's notes of the conversation were read to Mr Peters. He agreed that the notes were an accurate statement of what he said. He said that he consulted with Ms Howard because "I just wanted to do a check to make sure that I wasn't doing anything that I shouldn't do under a particularly difficult and stressful … situation" and that "I was fairly clear on the grounds about what I need to do. So I just went to do a check". 154 Ms Sutherland's evidence concerning the discussion during the relevant meeting was essentially limited to identifying her notes of the conversation. Ms Sutherland's notes of the relevant part of the conversation were in the following terms (where RP is Mr Peters and WP is Mr Phillips): RP: Understand payment issue WP: Twice had to split the vote. Question is are they going to be docked 4 hrs. We need to know if they will be docked I hope you wont extremely fucking agitated guys think Asking you to use whatevers you can as the mgr [manager] not to dock ppl [people] Have secured normal RTW [return to work] No more meetings planned RP: What were votes for WP: Votes for going out for 24 hrs/indefinite & then back to work RP: Other limitations? WP: Working to the order Some guys back last night & this morn …. WP: Want you to use your industrial nounce [sic] Asking you not to dock 4 hrs for this morning Know it went past start time … WP: Would like to know what you'll do Understand WW give warnings Want it to settle down today & then can have follow up discussions WP: Don't want to come back this afternoon saying you've been docked 4 hrs. Ppl need to know upfront. Need to wait for answer RP: Will come back w a response (Emphasis added.) 155 The notes indicated that it was at this stage that Mr Peters and Ms Sutherland left the room to consult with Ms Howard. Ms Sutherland's evidence was that this occurred at about 8.25 am. The notes record that Mr Phillips and Ms Sutherland returned to the meeting at 8.45 am. It is unnecessary to set out Ms Sutherland's notes of the balance of the conversation. 156 In cross-examination, Ms Sutherland confirmed that her view was that BlueScope was required to dock the employees' pay. She said that she and Mr Peters left the meeting so they had "[t]ime to reflect on the discussions that had been held" and a "break to compose [themselves]". She denied that she and Mr Peters rang Ms Howard to ask her if there was some way that BlueScope could pay the employees so they would return to work immediately. She also denied that she and Mr Peters were considering making the payment, or looking for a way of making it. Rather, they contacted Ms Howard because she had asked to be kept abreast of things. 157 In his evidence, Mr Phillips essentially agreed that he "pretty much" used the words recorded in Ms Sutherland's note. Mr Gorgievski simply agreed that there was discussion at the relevant meeting about whether or not the people who attended the meeting that morning would be docked four hours. 158 It is, of course, necessary to consider what Mr Phillips said during the relevant conversation in context, having regard in particular to the events that had occurred over the previous 24 hours, and the situation as it presented itself to Mr Phillips at that time. It is also necessary to consider Mr Phillips' statements in the context of the entire conversation. 159 That said, the two critical statements made by Mr Phillips were those that are emphasised in the extract from Ms Sutherland's notes reproduced earlier: "[a]sking you to use whatevers you can as the mgr not to dock ppl" and "[a]sking you not to dock 4 hrs for this morning". 160 The question is whether the effect of those words, considered in context, was that Mr Phillips was asking Mr Peters not to dock the employees four hours pay by reason of their attendance at the meeting that occurred that morning. The word "dock" in that context plainly meant reduce the employees' wages by an amount that would otherwise be paid for four hours' work. If that is the meaning and effect of what Mr Phillips said, that would clearly amount to Mr Phillips, on behalf of the AWU, asking Mr Peters, on behalf of BlueScope, to pay the employees their full wages for the day shift, despite the fact that, by attending the meeting, the employees had engaged in unprotected industrial action of less than four hours' duration. That, in turn, would amount to the AWU asking BlueScope to make a payment that would contravene s 474 of the Fair Work Act. 161 The AWU submitted that, considered in context, Mr Phillips' statements did not amount to, or constitute, a request or demand for BlueScope not to dock the employees' pay. In the AWU's submission, the relevant context was that: the employees were "extremely agitated"; Mr Phillips had, or was seeking to ensure, a "normal" return to work; the employees and Mr Phillips were anxious to know, in that context, if the employees would be docked four hours pay for briefly attending the meeting that morning; Mr Phillips, and no doubt many other people, had a strong conviction that employees should not be obliged to work if they would not be paid for it; and the employees were undoubtedly less likely to return to work as normal, or perform their normal duties, if they were to be docked four hours pay and therefore effectively would not be paid for the work that they were to perform. The AWU argued that, having regard to that context, all that Mr Phillips' words amounted to was a request for information; would BlueScope dock the employees' pay? Mr Phillips wanted that information so he could convey it to the employees, no doubt believing that, if he was able to tell the employees that their pay would not be docked, that would both calm their agitation and secure a normal return to work. In effect, Mr Phillips was asking Mr Peters to help him help BlueScope by securing a normal return to work without further aggravating the situation. 162 There is some merit in the AWU's submissions concerning the context of the conversation and Mr Phillips' intentions. There could be little doubt that, consistent with his earlier actions, including at the Fair Work Commission, Mr Phillips was well-intentioned. He wanted to calm things down and secure a normal return to work, not only for the benefit of the AWU's members, but also for the benefit of BlueScope. He was asking Mr Peters to do what he could to assist him in that regard. He was not making threats or unduly forceful demands. It is also true, to a certain extent, that he was requesting information; he wanted to be able to go back to the employees and tell them that management had indicated that their pay would not be docked. 163 It should also perhaps be noted in this context that the evidence tended to suggest that Mr Peters and Ms Sutherland understood that Mr Phillips was well-intentioned and was simply trying to do what he could to reduce the tension and get the employees back to work. They understood why Mr Phillips was asking them about whether the employees' pay would be docked. While both Mr Peters and Ms Sutherland both maintained that they believed that BlueScope had no choice but to dock the employees' wages, it would appear that they too wanted to ascertain if there was any way that that could be avoided. That is why they consulted Ms Howard. Ms Sutherland's claim, in her evidence, that she and Mr Peters left the meeting with Mr Phillips because they wanted "[t]ime to reflect on the discussions" and a "break to compose [themselves]" was, to say the least, unpersuasive, if not, implausible. It was also not supported by Mr Peters, who conceded, albeit begrudgingly, that he had some uncertainty about the situation. 164 The legislation, however, is intractable. Motive is largely irrelevant. If the meaning and effect of Mr Phillips' words was to ask Mr Peters, on behalf of BlueScope, not to dock the pay of the day shift employees who had attended the meeting on the morning of 27 May 2016, and who had therefore engaged in unprotected industrial action, his motive or intentions for making that request are essentially irrelevant. The effect would nevertheless be that he, on behalf of an employee organisation, asked an employer, BlueScope, to make payments to employees in circumstances where BlueScope would, if it made those payments, have contravened s 474. BlueScope would have contravened s 474 in those circumstances because s 474(1) provided, in effect, that if an employee engages in unprotected industrial action for a period of less than four hours, an employer cannot pay that employee in relation to four hours of the day on which that action occurred. That is the case even if the action was for as little as 10 minutes. While the wisdom or fairness of that law is at best questionable, that is what it provides. And it matters not, in considering whether, in making the request, the employee organisation thereby contravened s 475, that the employee organisation may have been well-intentioned. 165 Unfortunately for the AWU, despite Mr Phillips' best intentions, the meaning and effect of Mr Phillips' words is clear. He did not simply ask for information. He went further and clearly asked Mr Peters not to dock the pay of the employees who had engaged in unprotected industrial action that morning. Mr Phillips' conduct is, by reason of s 793 of the Fair Work Act, taken to have been engaged in by the AWU. The AWU therefore contravened s 475 of the Fair Work Act.

CONCLUSION AND DISPOSITION 166 The AWU contravened s 417 of the Fair Work Act in organising the meeting of the Springhill Works employees that took place on the morning of 26 May 2016. The AWU did not, however, organise the 24-hour strike that followed that meeting. It did not contravene s 417 in respect of that strike. 167 The AWU, through the actions of Mr Phillips on the morning of 27 May 2016, contravened s 475(2) of the Fair Work Act by asking Mr Peters, on behalf of BlueScope, to make a payment to the Springhill Works employees in circumstances where, if it made that payment, BlueScope would have contravened s 474 of the Fair Work Act. 168 It will be necessary to have a further hearing for the purposes of determining the appropriate relief in relation to those contraventions. The parties should bring in short minutes of order for the further conduct of the proceeding having regard to the findings that have been made. I certify that the preceding one hundred and sixty-nine (168) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.