[33] Justice Jagot's reasons for judgment in Hutchison Ports include the following, none of which have been disturbed on appeal given the confined nature of the issues raised in the appeal by the FWO:

"61. In an email to an international colleague on 11 August 2015 Mr Carnegie described Mr McAleer as the MUA person who was "leading the fight in Sydney against Hutchison". I consider this statement was accurate and was not intended to mean only that Mr McAleer was simply arranging the picket, community support, and public relations exercise in Sydney, as opposed to doing all of those things and also having ensured or ensuring the employees continued their industrial action.

1. Whether the conduct of HPA was lawful or unlawful is not the point. Nor is it the point whether or not the HPA wanted to break the power of the MUA by discriminating against MUA delegates in the redundancies and introduce automation on the wharfs by stealth. Equally, it is not to the point that it might be considered that the employees honestly believed they had no option other than the withdrawal of labour to prevent what they perceived as a gross injustice. The issues are, were the employees engaged in industrial action and, if so, did the MUA organise that action and/or was the MUA involved in that action? It seems to me that the inescapable answer to these questions must be yes.

2. The evidence leads overwhelmingly to the inference that the MUA intended to and did in fact organise the industrial action in the required sense. In Australian Building and Construction Commissioner v Huddy [2017] FCA 739 at [147] this was said to involve "acts of positive and intentional conduct bringing about or maintaining, or contributing in a material way to the bringing about or maintenance, of industrial action". The FWO accepted in its submissions that:

To "organise" industrial action involves positive conduct which is intended to, and does in fact, induce or procure others to engage in conduct by "marshalling" "rallying" or "co-ordinating" employees to bring about or maintain the industrial action: Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525 at [53]; Australian Building and Construction Commissioner v Huddy [2017] FCA 739 at [66] - [72]; [147].

1. The inference that the MUA intended to and did in fact co-ordinate the employees to engage in the industrial action between 7 and 14 August 2015 must be drawn on the evidence. The MUA's own statements are inconsistent with the submission that it did no more than "encourage" or "enable" the employees to take industrial action. To the contrary, the MUA, confronted with sackings it saw as union busting, was determined that the employees would take industrial action and must be inferred to have done all in its power to ensure the employees did so, having recognised that it needed to "win" the employees over and industrially "mobilise" them in the MUA's perceived "war" with HPA. As the FWO submitted, it is necessary in the present case never to lose sight of the fact that this was not merely the MUA acting to protect employees. It was the MUA in what it perceived to be a war for its own existence, protecting the MUA's own interests. In this context, the inferences which must be drawn on the evidence do not depend, as the MUA would have it, on conjecture or speculation. They depend on the MUA's own words, taken with the events as they occurred."

[34] In Patrick Stevedores Holdings Pty Ltd v CFMMEU[17] (Patricks No. 2), Justice Lee determined that Mr McAleer and the CFMMEU (arising in part from Mr McAleer's conduct) contravened sections 417, 421 and 340 of the Act. Declarations have been made reflecting these contraventions, but the proceedings are still before the Federal Court and no penalties have yet been determined or ordered.

[35] Patricks No. 2 concerned allegations, inter alia, that the CFMMEU and Mr McAleer organised and were involved in industrial action that took place at Port Botany, New South Wales during various shifts in April and May 2017. Justice Lee's reasons for judgment in Patricks No. 2 include the following:

"41. ... A good illustration of the view taken as to the use of the Sublease Area, and the suspicions harboured as to the motives of Patricks and Qube within the Union branch around this time, is recorded in the MUA National Office Report of March 2017 (Exhibit N 346-347), where the following was noted under the topic "Patrick and Qube attack stevedoring work":

The Sydney Branch reports that Patrick Terminals are in the process of undermining the definition of stevedoring work and attacking wharfie's jobs at [the Terminal]. With the support of the National Office, the Sydney branch is developing a domestic and international campaign to stop these moves and seeks the support and vigilance of all other MUA branches.

The branch believes this attack is the first front in Qube's reorganisation of Patrick Terminals since their 50% purchase of the terminals in August 2016 and the appointment of Qube management and directors, such as Chris Corrigan, Maurice James, Paul Digney and Michael Jovicic to the Patrick board and management. Qube has a well-established tactic of undermining stevedoring work in other ports through the use of subsidiary companies.

Patrick have cordoned-off area an area which they say they are not using and are simply leasing to Qube Logistics to use for empty containers for the next 2-3 years. However, the location of the area means that it is also inextricably connected to work processes in the terminal, and it will in all likelihood remove work form the terminal. The area in question is also adjacent to an underused railway line. The use of the rail line is critical to Qube's business strategy, which involves linking all aspects of the container supply chain and in particular, development of Australia's largest intermodal container terminal at Moorebank near Liverpool NSW. Due to protests by local residents, containers will only be able to travel from the port to the 1.5 million TEU terminal by rail. The branch believes that establishing the separation of the land near the rail line from the work processes in the terminal is part of Qube and Patrick's longer-term strategy to remove wharfies from the future rail work at the Port Botany terminal.

The branch is determined to see off this challenge for Qube and Patrick, as we did in 1998, again in 2012 with the automation of Port Botany, and again in 2016 when Qube sought to break up their national agreement with the MUA.

1. One might be tempted to dismiss some of these comments as hyperbole but I do not find that this was the case. The issue of the use by Qube of the Sublease Area was obviously regarded by the branch with intense suspicion and as a harbinger of further actions to be taken by Patricks and Qube adverse to the interests of employees. Although the authorship of the MUA National Office Report was not established, I am satisfied it is appropriate to infer that the views of the branch reflected in that document were an accurate reflection of the view of not only Mr McAleer (who had communicated his serious concerns) but also of Mr Keating, in the absence of evidence to the contrary. Additionally, there does not appear to be any suggestion in the evidence that the actions of the branch were in conflict, in any way, with the wishes or views of the Union at national level. Indeed, the early involvement of Mr Tracey (see the preceding paragraph), rather suggests to the contrary.

2. On 17 March 2017, the Union filed with the FWC an "Application for the Commission to Deal with a Dispute in Accordance with a Dispute Resolution Procedure" (Exhibit N 367), by which it alleged that Patricks had not complied with its consultation obligations (First FWC Application). In the dispute notification, the Union made clear its position that "the work being performed by Qube is stevedoring, and is either work that could be performed by stevedore employees at the Terminal or is work currently being performed by stevedore employees at the Terminal". Accordingly, it was alleged that Patricks had failed to consult with employees in respect of the work which it considered to be the same work as that undertaken by the employees. Consistently with what was noted as to national level involvement, the same day, Mr Tracey wrote to Patricks advising that unless the decision to implement Qube's use of the Sublease Area was suspended, the Union reserved its rights to sue for damages (Exhibit N 382-383). On any view of it, a dispute about the nature of the work to be performed in the Terminal had now arisen between the Union (at both branch and national level) and Patricks.

3. On 23 March 2017, Mr McAleer wrote to Mr Paddy Crumlin, the national secretary of the Union, that the Sydney Branch was "heading into a significant dispute with Patricks" and was intending on "campaigning in the biggest way possible", and that "numerous partners" were "already committing to a community, political and industrial response around the world" (Exhibit N 388). Consistently with this, on 7 April 2017, the Union sent correspondence to Australian and international trade unions and organisations, whereby recipients were requested to assist in what was described as its "major dispute with Patrick Port Botany" and requested, in solidarity, that these organisations send a letter to Patricks in a form provided (Exhibit N 441-507).

1. Returning to the chronological narrative and my findings, on 12 April 2017, a Qube Narrabri train was loaded with empty containers which arrived at the Rail Yard on trucks from the Sublease Area. Mr McAleer was aware that Qube was "running boxes into the rail", and his reaction was to "escalate this". He emailed Mr Bonner and stated that he should "accept this as advice of a dispute at a branch level as well" (Exhibit N 843, 892, 2929-2931 and 2964-2967). In truth, what was occurring was that the pre-existing dispute had been escalated. Notwithstanding tensions were rising, on the following day, the Qube Narromine train was loaded with empty containers and until 19 April 2017, on two more occasions, the rail employees unloaded empty containers from trucks operated by Qube (Exhibit C at [60]).

2. On 18 April 2017, a meeting was held which was attended by representatives of Patricks, Qube and the Union. At the meeting, the Union representatives reiterated the Union's position that the work being undertaken by Qube in connexion with its use of the Sublease Area was stevedoring work and that it should be covered by an agreement with the Union on the basis of the Stevedoring Industry Award 2010 (Exhibit C at [49]-[51]; T181, 201-202).

3. On 19 April 2017, Mr McAleer informed Mr Guy that the rail employees would no longer unload the trucks operated by Qube carrying empty containers and that the matter relating to the Sublease Area "would be put into dispute" (Exhibit C at [52]-[56]).

1. At approximately 11:30 am, Mr Balzan called Mr McAleer and there was a conversation in excess of two minutes and Mr McAleer then called Mr Keating at 11:39 am for a 32 minute conversation, immediately followed up by a conversation in which Mr McAleer spoke to Mr Keating for a further two and a half minutes. In the absence of any evidence to the contrary, it is reasonable to infer that Mr McAleer had been apprised of the fact that the escalation of the dispute by the refusal to unload the empty containers had taken place - a course taken with his knowledge, approval and encouragement.

The position taken by the Union (through the actions of Mr McAleer), was persisted in and indeed became more widespread and extended beyond the Ban.

The evening shift commenced at 2:00pm on 20 April 2017. Following a "toolbox" meeting at the commencement of the shift, all of the employees waited in the crib room and did not commence work. The employees subsequently confirmed that they were supporting "the guys in rail" (that is, the rail employees) and that they would call Mr McAleer to ask him to come down and "tell us what to do" (Exhibit C at [83]-[93]).

At around 3.30pm Mr McAleer was standing close to the yellow fence that divides the open area of the Terminal's meal room from the carpark. A number of workers were gathered together on the meal room side of the fence and Mr McAleer was talking to the workers through the fence from the carpark (Exhibit J [25]-[26]). After he had a conversation with a security supervisor, Mr David Fox, during which Mr Fox asked Mr McAleer to leave the premises, Mr McAleer turned to the workers who were gathered on the other side of the fence and said words to the effect of "C'mon guys, let's go". Mr Fox then had a conversation with Mr May and Mr Guy and said to them that "McAleer will be going and the guys might be going with him". Shortly thereafter a large number of workers left the Terminal (Fox affidavit, sworn 30 August 2018 at [16]-[25]). Following this activity, the employees on the evening shift on 20 April did not return to work (Exhibit C at [102]). I am satisfied this action was taken because of Mr McAleer's entreaties, which were designed by him to marshal or rally the employees and were directed at achieving the result of a large number of workers leaving the Terminal.

Matters then escalated quickly. An application was made by Patricks to stop what was contended to be unprotected industrial action in accordance with Part 3-3 of the FW Act (Second FWC Application). The order was sought against employees who were members of the Union pursuant to s 418(2)(b). Employees, including rail employees, maintained the refusal to work (Exhibit C at [106]-[145]) and very late in the evening of 20 April, Deputy President Booth of the FWC issued interim orders. These orders required, in effect, that the employees not engage in industrial action in the form of a ban on the loading or unloading of trucks arriving at the Rail Yard, or in a stoppage or refusal to attend for or perform work (General Stoppage of Work).

On the night shift of 20 April, leading into 21 April, the General Stoppage of Work at the Terminal continued. At that time, the employees on shift were represented by Mr Matthew Bonner (Exhibit H at [40]-[46]). That night, Mr Bonner placed telephone calls to Mr McAleer, lasting 67 seconds, at 10:36pm; and Mr Keating, lasting 143 seconds, at 10:37pm.

Despite the order, the General Stoppage of Work continued the following day. During the day shift on 21 April, the employees on shift were represented by Mr Dean Harris (Exhibit H [55], [62], [64]). That morning, Mr Harris made two telephone calls to Mr Keating at 11:55am and 11:56am (seemingly without success as each call lasted only a few seconds); and then made a further telephone call lasting 29 seconds to Mr McAleer at 12:29 pm. At 1:48pm Mr McAleer was at the entrance of the Terminal carpark addressing employees who were due to commence their shift (Denham affidavit Annexure JPD-10 [101]-[104]). In the absence of any countervailing evidence, it is necessary to conclude that it was more likely than not that Mr McAleer was aware of precisely what was occurring concerning the General Stoppage of Work and it conformed to his wishes as to the appropriate industrial strategy to undertake to escalate the dispute.

1. It might be thought to be a considerable understatement to remark that Mr McAleer continued to feel strongly about the matter. On 29 April, in responding to an email sent by Mr Keating to Patricks criticising the issuing of warning letters, he stated "[t]he company will be broken or broke" (Exhibit N 1693)

2. At about 10.30am on 1 May, Mr McAleer and Mr Keating arrived at the Terminal and waited near the security office. Around five minutes later, the rail employees scheduled to work on the 1 May day shift met with Mr McAleer and Mr Keating. A meeting then took place between Mr Higham, a Union delegate and employee, Mr Tony Micic, an employee, Mr Michael UpCroft, another employee and the WHS Committee Chairman, Mr Frawley and Mr Guy. At this meeting, Mr Guy indicated that he would be happy to have a discussion regarding the Qube trucks after the train was loaded. Mr Micic asserted that the employees did not need to load the empty containers because there were other containers that could be loaded. Mr Guy responded by re-iterating that the Qube trucks were loaded, and needed to be unloaded. Mr Keating then raised the issue that there had been no risk assessment or standard operating activity done for the loading of empty containers (Exhibit C at [204]-[208]). Shortly after this meeting concluded, Mr Frawley and Mr Guy presented warning letters to those 1 May rail employees who had not previously received them (Exhibit G at [202]-[219]).

3. There were multiple subsequent meetings between Mr Frawley, Mr Guy, Mr McAleer, Mr Keating and various rail employees throughout the day. In particular, not long after 12.30pm, Mr Guy provided Mr McAleer with a copy of an unsealed Federal Court order. At this meeting, Mr McAleer asserted the argument made by the Union which was persisted in at the hearing in greater amplitude: Patricks' direction to load empty containers from the sub-lease onto trains in the Rail Yard was in breach of clause 1.3, there had been no consultation regarding the change to accepted practice; as a consequence, there had not been industrial action, and the receival and delivery process within the Terminal had changed dramatically (Exhibit C at [226]-[223]). Mr Keating was present at this meeting, saying words to the effect: "you show utter contempt for your employees", and requesting that the meeting be recorded (Exhibit C at [226]-[232]). Following this meeting, Mr Keating and Mr McAleer gathered again with the rail employees in the carpark. At around 1pm, Mr Guy approached the group and indicated he would give the employees five minutes to get advice from Mr McAleer and Mr Keating. Less than ten minutes later, the employees, Mr Keating and Mr McAleer moved into the meeting room near the security office. Mr Guy proceeded to read the pre-prepared script which directed the employees to work the Qube trucks. After reading the script, Mr Guy gave the employees a further five minutes to discuss what they had just been told. Shortly thereafter, Mr McAleer said that they had contacted the workers' legal representatives and were awaiting advice. Mr McAleer and Mr Keating then returned to the carpark. At 1.20pm, Mr Frawley and Mr Guy again approached the group which had gathered in carpark; Mr Guy telling the employees that they needed to return to work and he attempted to read the script again. While reading the script, Mr McAleer and Mr Keating approached him, Mr McAleer swearing. As this took place, the employees began to walk away. Mr Guy followed them and warned that they were in breach of Federal Court orders. Five minutes later, the group remained in the carpark. Mr Guy asked if they had a response to his direction. Three employees contended that they were sick because of stress, and went home. The remaining rail employees did not perform any work for the remainder of the day. I accept Mr Laroche's evidence that he directed the rail employees to work and that they refused. In the absence of any evidence to the contrary, I consider it is far more likely than not that the rail employees did so because both Mr McAleer and Mr Keating had both encouraged them to refuse to act in accordance with the direction made and, in doing so, entreated them to conform with the strategy that they had agreed upon on behalf of the branch.

4. On 2 May, another official of the branch, Mr Warren Smith, sent an email indicating that "[w]e are campaigning in an attempt to sway the company through leverage on ships that call into the port and have contracts with Patrick" (Exhibit N 1940). Mr Graham gave evidence, which I accept, that Patricks was required to cancel the day shift on 2 May because there were not enough skilled employees to perform the work due to the number stood down the previous day (Exhibit A at [118]-[119]; Exhibit QA at [11]-[13]).

1. In the absence of any countervailing evidence from either Mr McAleer or Mr Keating or any employees, the record of communications between them and their roles as secretary and deputy secretary of the branch in the conduct of what was clearly subjectively considered by both of them to be a "major dispute", establishes that the branch officials were taking a coordinated and tactical course in putting the Ban in place. This was evidently thought by both Mr McAleer and Mr Keating to be a proportionate and appropriate remedial response to an action which was perceived to be a broader plan by Patricks and contrary to the interests of the Union and its members. Although it seems that both Mr McAleer and Mr Keating were the most passionate officials advocating and organising the escalation of the dispute, there is no evidence anyone within the Union acted to countermand them or put in place an alternative strategy. The organisation of the escalation of the dispute and the putting in place the Ban, consistently with the wishes of Mr McAleer in particular, was actioned. After reviewing the contemporaneous material and in the absence of any evidence to the contrary, I have reached a state of satisfaction or actual persuasion that Mr McAleer was not mere passive observer but was involved in positive conduct which was intended to and did induce and rally employees to participate in the Ban and those acts were directed to achieving a cohesiveness in result in ensuring the Ban took place in accordance with the industrial strategy settled upon by him. To the extent relevant, I am also satisfied that Mr McAleer counselled and procured the employees to participate in the Ban while having knowledge of the fact that this would amount to disputation during the currency of the Enterprise Agreement.

2. As to Mr Keating, it is only necessary to make findings as to the day shift on 1 May. I am comfortably satisfied that there was no relevant difference between the views of Mr McAleer and Mr Keating as at that date. Mr Keating as at 1 May was also involved in positive conduct which was intended to and did induce and rally employees to participate in the Ban on the day shift and those acts were directed to achieving a cohesiveness in result in ensuring the Ban took place that day in accordance with the industrial strategy he had agreed with Mr McAleer. Mr Keating counselled and procured the employees to participate in the Ban on 1 May while having knowledge of the fact that this would amount to disputation during the currency of the Enterprise Agreement.

3. I should expressly note, however, that I am not satisfied that either Mr Keating or Mr McAleer subjectively believed that they were engaging in a contravention of the law but rather that they had knowledge of the essential ingredients that made up the contravention. Needless to say, this finding is one which will be relevant if one comes to considering the issue of any appropriate pecuniary penalty.

1. I am conscious of the email that Mr McAleer wrote the following day, noting he felt "massively let down by the National Office" and that there was evidently at least some tension between the National Office and the branch in "the way [the issue] has been handled since December" the previous year. But the reality as revealed in the evidence is that the organisation of a response was left to the branch officials. The branch was intent on pursuing what Mr McAleer considered to be appropriate and the evidence allows me to be comfortably satisfied that Mr McAleer, as at 20 April, wanted, encouraged and successfully organised an escalation of the dispute and a means designed to achieve that end was putting in place the General Stoppage of Work. By application of s 793(1), the conduct of Mc McAleer in organising the General Stoppage of Work should also be attributed to the Union.

G.3 A Summary of Contraventions of s 417(1) and s 421(1)

1. It is evident from my findings that I have found that the Union and Mr McAleer organised both the Ban and the General Stoppage of Work (and that Mr Keating also organised the Ban on 1 May). Mr McAleer and Mr Keating (to the limited extent pleaded) were also involved in the employees' contraventions of s 417. As I note below, I propose to stand the matter over in order for the parties, with the benefit of these reasons, to bring in orders which will identify the appropriate declaratory relief.

A person to whom an order under section 418, 419 or 420 applies must not contravene a term of the order.

1. As my findings make clear, the organisation of industrial action at the Terminal extended to contravention of the interim order made pursuant to s 420 of the FW Act made on 20 April 2017 following the making of the Second FWC Application. The order, obviously enough, was binding on the employees and the respondents and the organisation of industrial action, as I have found, continued after the making of the Interim Order. The organised industrial action thereby contravened s 421(1).

2. Moreover, the respondents had knowledge of the Interim Order and its terms. They also knew that employees would and did take industrial action of the type proscribed by the Interim Order (being the contraventions of s 421(1) by the employees who engaged in industrial action from the night shift on 20 April 2017 onwards). The terms of the order binding all employees were plain and by taking that industrial action, those employees contravened s 421(1). Consistently with my earlier findings, the respondents abetted, counselled and advised the employees to engage in the contravening conduct of the employees and are taken to have contravened s 421(1). In relation to Mr Keating, this is, of course, restricted to conduct in relation to the 1 May day shift.

3. The only answer to this case advanced by the respondents was that there was "no contravention of ... s 421 ... each of which are conditioned on the taking of industrial action by employees, or the organising of same" (RS [48]). For reasons already explained, this contention is misconceived and the contraventions have been established.

1. As noted above, Patricks also ran an adverse action case. Section 340(1) of the FW Act provides:

A person must not take adverse action against another person:

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

1. It is asserted that in organising the industrial action, Mr McAleer and Mr Keating took "adverse action" as a means to place pressure on Patricks not to direct employees to perform work connected to the Sublease Area, as part of its campaign against those developments: s 342 Item 7(2)(a). It is further asserted that pursuant to s 363(1), the action taken by Mr McAleer and, to more limited extent, Mr Keating, is taken to be an action of the Union, such that all three respondents have contravened s 340.

2. Clause 8.4 of the Enterprise Agreement provided that:

The Company Management has rights and responsibilities and nothing within this Agreement shall be taken to diminish these in any manner. In accordance with clause 15, the Company at any time may determine which positions, structures and work practices shall exist and the manner in which employees placed by the Company to those positions and structures carry out their duties.

194. Clause 15.2 of the Enterprise Agreement, provided that:

An employee of the Company shall perform any work as the Company may reasonably require including any function for which the employee is qualified including work of a higher or lower grade provided that the employee is remunerated in accordance with the Award and this Agreement.

1. The Enterprise Agreement also incorporated clause 9.7.1 of the Stevedoring Industry Award 1999, which provided that:

An employee will perform such work under this award as the employer, from time to time, reasonably requires.

These provisions allowed Patricks the right to have employees perform work Patricks reasonably required. I accept the submissions of Patricks that this is a benefit under a "workplace instrument" (that is, the Enterprise Agreement) and hence a "workplace right" within the meaning of s 341(1)(a) of the FW Act. The only answer advanced to this case is the contention of the respondents that they did not organise the ban or limitation because of the exercise of a workplace right by Patricks, but rather the campaign against Patricks was "connected with its restructuring of its operations".

The difficulty for the respondents is that they bear the onus to disprove that they organised industrial action with the alleged intent: FW Act s 361(1). The respondents would appear to submit that the presumption under s 361 that the respondents organised industrial action for the reason that Patricks exercised or proposed to exercise a workplace right has been displaced. Although I accept that the material in evidence demonstrates that the Union had an ongoing community and social media campaign against Patricks connected with its "restructuring of its operation", this is not to the point. In the absence of any evidence in relation to the respondents' intentions, the respondents have failed to discharge that onus insofar as the allegation is advanced against them: see, for example, Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452; (2006) 161 IR 9 at 14 [29].

My finding is that the industrial action commenced on 20 April, following the "escalation" of the dispute and communications between Mr Balzan, Mr Keating and Mr McAleer. Mr McAleer intended "escalation" once aware, the day after the 11 April Direction, that Qube was "running boxes into the rail". It was just before a Qube train was to be unloaded at 10:30am on 20 April that the phone calls between Mr Balzan, Mr Keating and Mr McAleer took place. The ban on unloading the Qube truck then was put in place and the General Stoppage of Work, in which Mr McAleer was particularly instrumental, followed. As noted above, the industrial action was manifestly directed towards stopping the work pursuant to the 11 April Direction and because Patricks maintained the requirement that the Qube trucks be unloaded in the Rail Yard.

Moreover, as Patricks submit, the FW Act recognises that there may be multiple reasons for which adverse action is taken and it is enough to establish a contravention that one such reason be unlawful. Patricks alleged that each respondent took adverse action for reasons including reasons proscribed by the FW Act, and as my finding reflects, all the evidence points to the correctness of that allegation. No evidence has been led explaining why the respondents acted as they did. Accordingly, I am satisfied, in the absence of any relevant evidence from the respondents, that they contravened s 340(1) of the FW Act as pleaded.

In addition to having organised the employees' contraventions of s 340, it was submitted that by reason of s 550 of the FW Act the respondents were also "involved" and "knowingly concerned" in either all (or in the case of Mr Keating, only some) of the employees' contraventions. On each occasion that an employee engaged in industrial action, "adverse action" was taken: FW Act s 342(1), item 5(b). The employees did so for the same reasons as the respondents and by taking adverse action for those reasons, the employees contravened s 340(1).

As my findings indicate, the respondents had knowledge that the employees would and did engage in industrial action; that Patricks had workplace rights under the Enterprise Agreement and were exercising rights by requiring the employees to do the relevant work. They also knew the reason for the employees taking industrial action was Patricks' actual and proposed exercise of its workplace rights. The evidence establishes that each of the respondents (to the extent pleaded) abetted, counselled and advised the employees to engage in the conduct which constituted the contraventions and that they procured it. It follows inexorably, that they were each "involved" in the employees' contraventions, and hence are taken to have contravened s 340(1) in this respect.

Finally, for completeness, the submission that Mr McAleer (and therefore presumably the Union) acted in accordance with their view of the Enterprise Agreement and clause 1.3 is no defence. Whether or not that is so (and again, there is no evidence that it is), they have not disproved that they also acted in part for the reasons alleged by the applicants. Mr McAleer's belief that his conduct was lawful does not make it so: see Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; (2017) 92 ALJR 106 at 111 [2], 124-125 [61] (Kiefel CJ, Keane, Nettle and Edelman JJ)..."

[36] The conduct of Mr McAleer in connection with the Hutchison Ports proceeding and the Patricks No.2 proceeding, albeit not in relation to the exercise of a right of entry in accordance with Part 3-4 of the Act, is relevant and weighs against a finding that Mr McAleer is a fit and proper person to hold a right of entry permit. It is also relevant to have regard to the fact that Mr McAleer was not solely responsible for the conduct which resulted in the findings being made against the CFMMEU in the Hutchison Ports proceeding and the Patricks No.2 proceeding. There were other officers of the CFMMEU who were involved in the conduct which led to the findings of contravention of the Act against the CFMMEU in those proceedings.

[37] I accept Mr McAleer's evidence that, apart from the proceedings referred to above, there have been no further complaints about his conduct as an MUA or CFMMEU official and there have never been any complaints made by any employers in relation to Mr McAleer exercising his rights of entry.[18] I have taken these matters into account in determining whether Mr McAleer is a fit and proper person to hold an entry permit under the Act.

[38] There are no other relevant matters that I consider relevant to the present application.

[39] In my view, Mr McAleer is not a fit and proper person to hold a right of entry permit. I have reached this conclusion after taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act and addressed in paragraphs [19] to [38] above.

[40] Although there are a number of permit qualification matters which support a finding that Mr McAleer is a fit and proper person to hold a right of entry permit, they are outweighed by the permit qualification matters which tell against such a conclusion. A permit holder under the Act has important rights and obligations which non-permit holders do not have. One important consideration when undertaking the evaluative assessment of whether a person is a fit and proper person to hold an entry permit is the personal characteristics of the individual concerned in relation to the activities of a permit holder. Past conduct is relevant to the assessment of such personal characteristics. It is apparent from Mr McAleer's conduct in the Patricks No.1 proceedings, Patricks No.2 proceedings, DP World proceedings, and Hutchison Ports proceedings that he has repeatedly been involved in organising unlawful industrial action. Even in the context of his lengthy period since 2007 as a union official and prior to that time as a workplace delegate, Mr McAleer's conduct in organising unlawful industrial action has taken place over a considerable period of time (2012,[19] 2015,[20] 2017[21] and 2018[22]). Further, there is no evidence to suggest that Mr McAleer will conduct himself differently in the future.

[41] As demonstrated in the Federal Court proceedings to which I have referred, Mr McAleer has repeatedly preferred the interests of his union and/or its members over compliance with industrial laws. That was particularly the case in the DP World proceedings and the Hutchison Ports proceedings. In DP World, Mr McAleer's actions in organising unlawful industrial action involved "deliberate conduct which had the consequence that there was some disruption to work during each of the three shifts on 18/19 December 2012 [and] the contraventions were, in essence, an over-reaction on the part of the Respondents [including Mr McAleer] to the decision to dismiss Mr Wills".[23] In Hutchison Ports, Mr McAleer was one of the MUA officials who, in what the MUA "perceived to be a war for its own existence", organised unlawful industrial action and thereby preferred the interests of his union and its members over his interest in complying with the law.

[42] I recognise and have taken account of the fact that Mr McAleer's conduct the subject of the proceedings in Patricks No. 1 and Patricks No. 2 was somewhat different. In Patricks No. 1, Mr McAleer admitted to organising unlawful industrial action, but it is clear from the extracts from the judgment of Justice Flick in paragraph [26] above that Mr McAleer believed that the employees concerned had the right under clause 4.10 of Part B of the applicable enterprise agreement to engage in "no work". In Patricks No.2, Mr McAleer and another MUA official took a "coordinated and tactical course in putting the Ban in place", which they thought was a "proportionate and appropriate remedial response to an action which was perceived to be a broader plan by Patricks and contrary to the interests of the Union and its members".[24] Justice Lee was "not satisfied that... Mr McAleer subjectively believed that [he was] engaging in a contravention of the law..."[25] Nonetheless, as Justice Lee noted "Mr McAleer's belief that his conduct was lawful does not make it so".[26]

[43] I understand and have given appropriate weight to the fact that the Federal Court proceedings to which I have referred have not involved breaches of Mr McAleer's obligations under Part 3-4 of the Act.

[44] For the reasons given, I do not have confidence that Mr McAleer would, if granted a right of entry permit, comply with his obligations under Part 3-4 of the Act when faced with the competing interests between his union and/or its members and compliance with his legal obligations as a permit holder.

[45] I have considered whether any conditions should be imposed on any entry permit issued to Mr McAleer conjointly with my consideration of whether he is a fit and proper person to hold an entry permit.[27] No conditions have been proposed. My conclusion in relation to this issue is that I cannot reach the necessary state of satisfaction that Mr McAleer is a fit and proper person to hold such a permit, regardless of any conditions which may be imposed.

[46] In light of my conclusion that Mr McAleer is not a fit and proper person to hold a right of entry permit, the CFMMEU's application under s 512 of the Act is dismissed.

[2] Mr McAleer's witness statement dated 25 October 2019 at [7]-[10]

[4] Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J

[6] Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 - 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403; and Darlaston v McAleer and Others [2010] FCA 771; (2010) 189 FCR 1 at 13 [44]

[7] Construction, Forestry, Mining and Energy Union v Fair Work Commission [2017] FWCFB 4141

[8] [2015] FWC 1522

[9] [2015] FCAFC 56

[12] [2014] FCA 596

[13] [2019] FCA 1647

[14] [2017] FCA 1363

[15] Fair Work Ombudsman v CFMMEU [2018] FCA 934

[16] Fair Work Ombudsman v CFMMEU [2019] FCAFC 69

[17] [2019] FCA 451

[18] Mr McAleer's witness statement dated 25 October 2019 at [20]-[21]

Printed by authority of the Commonwealth Government Printer