//
[225]
[2021] FWC 6019
General information, not legal advice.
Fair Work Commission
2021-09-29
Original judgment source is linked above.
s.512 - Right of entry
Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
Application by CFMMEU for issue of right of entry permit for Paul Anthony Keating - not satisfied that fit and proper person - application dismissed.
(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:
(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;
(b) whether the official has ever been convicted of an offence against an industrial law;
(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:
(iii) intentional use of violence against another person or intentional damage or destruction of property;
(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;
(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;
(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:
(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or
(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;
(g) any other matters that the FWC considers relevant.
(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.
Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them."
(1) The FWC may impose conditions on an entry permit when it is issued.
(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.
(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part)."
"[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194_._ The relevant principles may be summarised as follows:
● A "fit and proper" standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.
● The expression "fit and proper person" in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.
● The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a "fit and proper person" per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.
● The question of whether an official is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights.
● The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.
● The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.
● While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).
● Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit."
"[17] The phrase a 'fit and proper person' is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase 'fit and proper person' by expressly including a reference to whether an individual is of 'good fame, integrity and character...': e.g., Tax Agent Services Act 2009 (Cth), s 20-15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:
'The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.'"[9]
"[42] When deciding whether to issue an entry permit pursuant to s 512 of the Fair Work Act, those considerations relevant to the exercise of the power are not confined (for example) to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the decision-maker - at least initially. The prospect remains for judicial review founded upon (for example) alleged 'unreasonableness'."[10]
Permit qualification matters - ss 513(1)(a), (b), (c), (e) and (f)
(a) Mr Keating received appropriate training about the rights and responsibilities of a permit holder on 21 April 2021 (s 513(1)(a) of the Act);
(b) Mr Keating has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);
(c) Mr Keating has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, or fraud or dishonesty, or intentional use of violence against another person or intentional damage or destruction of property (s 513(1)(c) of the Act);
(d) Mr Keating has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or made subject to conditions (s 513(1)(e) of the Act); and
(e) Mr Keating has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been made subject to conditions, nor has he been disqualified under such laws from exercising or applying for an entry permit (s 513(1)(f) of the Act).
Permit qualification matter - s 513(1)(d)
"1. The First Respondent [MUA] organised industrial action at Port Botany in New South Wales between 10.30 am and 2.00 pm on 18 December 2012, before the nominal expiry date of the DP World Sydney Enterprise Agreement 2011 ("DP World Agreement"), in contravention of s 417 of the Fair Work Act 2009 (Cth).
2. The First Respondent organised industrial action at Port Botany in New South Wales between 2.00 pm and 10.00 pm on 18 December 2012, before the nominal expiry date of the DP World Agreement, in contravention of s 417 of the Fair Work Act 2009 (Cth).
3. The First Respondent organised industrial action at Port Botany in New South Wales between 10.00 pm on 18 December 2012 and 6.00 am on 19 December 2012, before the nominal expiry date of the DP World Agreement, in contravention of s 417 of the Fair Work Act 2009 (Cth).
7. The Third Respondent [Mr Keating] organised industrial action at Port Botany in New South Wales between 10.30 am and 2.00 pm on 18 December 2012, before the nominal expiry date of the DP World Agreement, in contravention of s 417 of the Fair Work Act 2009 (Cth).
8. The Third Respondent organised industrial action at Port Botany in New South Wales between 2.00 pm and 10.00 pm on 18 December 2012, before the nominal expiry date of the DP World Agreement, in contravention of s 417 of the Fair Work Act 2009 (Cth).
9. The Third Respondent organised industrial action at Port Botany in New South Wales between 10.00 pm on 18 December 2012 and 6.00 am on 19 December 2012, before the nominal expiry date of the DP World Agreement, in contravention of s 417 of the Fair Work Act 2009 (Cth)."
"13 One employee, Mr Darrell Wills, had been off work for approximately 18 months having suffered an ocular occlusion. DP World had decided that some action was required. It was at 9.00 am on 18 December 2012 that a meeting was held to discuss the issue. In attendance were Messrs McAleer and Wills. Also in attendance was Ms Seta Samimi (the Human Resources Manager) and Mr Brendan Bilston (the Operations Manager).
15 It is unnecessary to set forth the balance of the conversations that took place on 18 and 19 December 2012. It is sufficient, for present purposes and given the agreement between the parties, to simply note that there was disruption to each of the three shifts. Mr McAleer took a more prominent role than did Mr Keating.
28 Although it must be recognised at the outset that each of the contraventions 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, the contraventions were, in essence, an over-reaction on the part of the Respondents to the decision to dismiss Mr Wills. Although the response on the part of the Respondents was unjustified, it was certainly not conduct warranting the imposition of a penalty at anything other than the "lower range".
29 In reaching that conclusion, two aspects of the Respondents' conduct warrant separate attention, namely:
• the fact that the Respondents only reached agreement as to the terms of the settlement of the proceeding immediately preceding the commencement of the hearing; and
• the fact that the Maritime Union has previously been found to have contravened s 417 of the Fair Work Act.
39 The events as they unfolded on 18/19 December 2012 merely exposed what was in all probability an overreaction on the part of Mr McAleer. Contraventions nevertheless followed and there were disruptions to the business activities of DP World. Penalties at the "lower end" of the spectrum were clearly appropriate. The involvement of Mr McAleer was clearly much greater than that of Mr Keating and the larger penalty imposed upon Mr McAleer reflects this greater involvement."
"17. The proceedings related to stoppages of work by employees of DP World at Port Botany on three shifts between 18 and 19 December 2012. I attended a meeting of the workers on each of the three shifts between 18 and 19 December 2012 with Mr McAleer and spoke to the meeting. Following my and McAleer's address a motion was put by one of the employees at each shift that the workers stop work for the entire shift. Neither Mr McAleer nor I tried to stop the motion being put to a vote, nor did we make any attempt to dissuade the employees from taking strike action.
18. On 29 April 2014, the parties agreed to resolve the proceeding with each of the respondents admitting liability, and the parties agreeing to penalties. The parties made a joint submission to the Court in relation to penalties. On 6 June 2014, the Court accepted the joint submissions, and made Orders to impose penalties on the Maritime Union of Australia, Mr McAleer and myself."
"1 Between 7 and 14 August 2015 work effectively ceased at the Brisbane and Sydney terminals of the port operator Hutchison Ports Australia (or HPA). Immediately before the employees ceased work, HPA gave notice sacking nearly 100 of its employees with effect from 14 August 2015. The Fair Work Ombudsman (or FWO) contends that the Maritime Union of Australia (or MUA) organised and was involved in the employees' conduct in ceasing work which was unlawful industrial action and, as a result, itself contravened s 417(1) of the Fair Work Act 2009 (Cth), which is a civil penalty provision.
2 For the reasons set out below the FWO's case must be accepted. The cessation of work at the two terminals between 7 and 14 August 2015 involved the employees taking industrial action. The MUA organised that industrial action and was involved in it by reason of counselling or procuring the action and being a knowing participant in the action. The MUA, accordingly, contravened s 417(1) of the Fair Work Act between 7 and 14 August 2015 and is liable to the imposition of a pecuniary penalty as a result."
"25 This all said, the evidence establishes that by 26 June 2015 the MUA (via Warren Smith, the MUA's Assistant National Secretary) and employees at the terminals were aware that the two companies proposed to reduce their workforce at each terminal commensurate with an intended reduction in the companies' commercial activities.
26 In the same period HPA communicated with the MUA and employees about the process for reducing the number of employees including a method and criteria for selecting employees for termination. Paul Keating, MUA Deputy Branch Secretary (Sydney), considered the criteria part of an attempt to undermine the MUA. It is apparent that the MUA rejected the criteria, a fact made clear in communications to HPA from Mr Smith of the MUA to HPA. The MUA also made clear its aim of minimising redundancies.
27 By 20 July 2015 HPA had notified the MUA and employees of its intention to reduce the workforce by 56 employees in Sydney and 41 in Brisbane. The MUA, rightly or wrongly, perceived that HPA's decision had been made without consultation and in breach of the enterprise agreement. It also perceived this proposal as an attempt to both introduce automation by stealth and to destroy the MUA's power at the terminals (referred to in the MUA's documents as "union busting") by discriminating against MUA delegates in the selection of employees to be sacked.
32 It is apparent that by 30 July 2015 officers of the MUA, including Mr Smith and Jason Miners (the MUA Deputy Branch Secretary (Queensland)), had met with employees of the two companies who were members of the MUA in both Sydney and Brisbane at stop work meetings. The members wanted to condemn HPA on social media, a wish the MUA set about fulfilling by setting up social media pages focused on making HPA "stop union busting". Consistent with the MUA's stated intention to industrially mobilise the employees, the employees themselves resolved on that day to demand that HPA negotiate "with our union representatives and delegates" or else they "would fight" HPA. The notion that this resolution is unconnected to the actions of MUA officials and represents spontaneous action by the employees is untenable. For example, Mr Keating considered the meeting in Brisbane between MUA officials and the employees a "great success" as the employees were "standing resolute and prepared to fight for what is theirs". Again, the notion that this was a spontaneous position reached by employees uninfluenced by anything said or done by the MUA at the meetings is fanciful.
34 On 31 July 2015, Mr Smith recognised that the MUA "really need[ed] to win the workforce over in the vast majority". It does not take much to infer that the MUA acted consistently with this objective, nor that subsequent events were not a mere spontaneous result of employees' wishes uninfluenced in any way by anything the MUA might have said or done. Given that the MUA perceived it was in a "war" and a "battle" for its existence, for which it needed to industrially mobilise the workforce, the submission that the FWO's case is marred by a lack of proof of connection between the actions of employees between 7 and 14 August 2015 and the MUA is unpersuasive. The MUA had good reason and plenty of opportunity to ensure that it and employees were primed from late July onwards to do whatever it might take to ensure that HPA did not effect the nearly 100 redundancies as HPA proposed.
35 The rally on 3 August 2015 at the Sydney terminal took place attended by multiple MUA officials including Mr Smith, Mr McAleer, Mr Keating, as well as Paul Garret and Joseph Deakin, both MUA Assistant Branch Secretaries (Sydney). The MUA posted images from the rally on its "stop union busting" social media sites.
39 An MUA media alert then went out on 7 August 2015 headlined "100 workers sacked by email sparks war on waterfront". Other MUA communications requested an immediate picket of the Sydney terminal. At 1.43am Mr Keating called Ryan Angwin, an employee at the Sydney terminal. They spoke for 20 minutes. Mr Keating then arrived at the Sydney terminal. So did Mr Garrett. However, they were not allowed onto the premises.
40 The MUA's submissions attempted to make something out of alleged inconsistencies between the evidence of HPA management about what they observed occurring. Difference does not mean inconsistency. Nor does it mean that evidence, which as in this case was effectively left unchallenged in cross-examination, can or should be rejected as unreliable. Each recollection can stand effectively without undermining the other. I am satisfied on the evidence that HPA management observed a number of employees who were rostered on for the night shift (including Mr Angwin) had ceased work and were meeting in the shift leader's office while on a speakerphone to a person whose voice was recognised to be that of Mr Keating. The employees were asked why they had stopped working and Mr Angwin answered that "This is a really difficult time. You have put us in a difficult situation. Why haven't you met with the union". When directed to return to work Mr Angwin said "We need some time". It was agreed that the employees could take their meal break early. By 2.30am employees who were meant to be working on the night shift instead presented a resolution to HPA management which was read out by and marked with Mr Angwin's name, and said:
We, the MUA R & F [rank and file] at Hutchison Ports Port Botany, on night shift 7/8/15 have passed a resolution to condemn the sacking of workers without consultation and move for the company to commence negotiations with our union immediately to resolve and avert this crisis.
41 Mr Angwin also told management that if HPA would meet with the MUA the employees would return to work. HPA management directed the employees to return to work. Mr Angwin said "We don't want to do this but we have to". The employees refused to return to work. The employees continued to refuse to work for the balance of their shift. Meanwhile, Mr Keating and Mr Garrett of the MUA were erecting flags and placards around the Sydney terminal identifying, amongst other things, that the MUA would "never surrender".
42 Given the evidence I have no difficulty in inferring that the MUA, via its officers (specifically Mr Keating in the telephone call to Mr Angwin), organised the employees to refuse to work when required to do so from about 2.30am onwards. It is apparent that the employees were not motivated by any concern about safety. It is apparent also that, given the evidence, the suggestion that the resolution was a spontaneous reaction by employees to the sackings defies belief. The MUA had said it would do everything in its power to ensure that the sackings did not occur, and it said it needed to industrially mobilise the workforce and to win the workforce over in order to defeat what it saw to be an existential threat. Why, when it came to it, would it not be inferred that the MUA did what it said it would do?
46 The Sydney day shift was due to start at 6.00am but the employees did not attend for work. Instead a number of the Sydney night shift employees who had attended but not worked since around 2.30am greeted the growing number of picketers outside the terminal. Between 4.59am and 6.41am Mr Keating of the MUA had telephoned Mr Angwin (who remained inside the Sydney terminal albeit not working) on three more occasions.
71 Brisbane employees returned to work for the 7.00am day shift on 14 August 2015. The MUA admitted that at about 7.15am on 14 August 2015 Mr Keating called HPA management to advise that employees required to work at the Sydney terminal that day would commence work. The fact that it was Mr Keating of the MUA who made this call and that he was able to say that employees would return to work is powerful evidence of the extent of the MUA's control over the industrial action. It supports the inference that the MUA organised the industrial action of the employees from beginning to end.
86 As noted, the MUA's focus on discrepancies between the evidence of HPA management about the events in Sydney on 6 and 7 August 2015 is misplaced. It was not put to the witnesses that any such difference meant that their evidence was unreliable. It is inevitable that people will recall events differently and will emphasise different aspects of events. In any event, the essential facts are not the subject of any meaningful discrepancy. The employees had stopped working. They refused to return to work when directed to do so. The basic demand was that HPA meet with the MUA, failing which the employees would not return to work. Further, the industrial purpose of the employees is not dependent on the recollections of HPA management. It is manifest in the documentary evidence. The same may be said of the involvement of Mr Keating.
102 The FWO has proved its case. The MUA organised and was involved in the industrial action of employees of SICT and BCT at the Sydney and Brisbane Terminals respectively between 7 and 14 August 2015 and, thereby, itself contravened s 417(1) of the Fair Work Act. To my mind, it is not necessary that any declaration be more specific than this but I will give the FWO seven days to file proposed orders consistent with these reasons for judgment and a timetable for the finalisation of the matter and the MUA a further seven days to respond."
Permit qualification matter - s 513(1)(g)
"13 ... Accordingly, neither Mr McAleer nor Mr Keating gave their account of what occurred; nor did any of the employees. In the light of the forensic decision to call no witnesses, before coming to my factual findings based on the evidence identified above (and the inferences to be drawn from that evidence), it is useful to pause to make some remarks about the principled approach to fact-finding in circumstances such as the present.
36 In any event, apart from any other issues, coming so soon after the commencement of the operation of the Enterprise Agreement, the proposal that Patricks sublease the Sublease Area to Qube and the attendant steps to be taken to implement this plan, were not developments received with equanimity by the Union and its officials.
37 As early as 7 December 2016, Mr Keating (who, it will be recalled, was the deputy secretary of the Sydney branch of the Union) had a telephone conversation with Mr Guy, the Terminal Manager, about rumours related to the Sublease Area (Exhibit C at [32]). The following day, an email was sent (Exhibit N 326) by Mr McAleer (who, it will be recalled, was the secretary of the Sydney branch of the Union) requesting confirmation of Patricks' intentions noting:
If there are other matters that [Patricks] is formulating behind the scenes, it may be best we give the incoming Enterprise Agreement a small hope of being functional and outline what changes are likely to be made within the overall operation at Port Botany being put on the table now.
42 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.
45 At some point in the days leading up to the Sublease beginning, a notification was sent by Mr Graham giving operational details of the Qube Sublease which was to begin from 6am on 6 April 2017 (Exhibit N 413). On 6 April 2017, a "Team Based Risk Assessment" was prepared in respect of the activity "Qube truck from empty container park interaction with Terminal Operations" by Mr Laroche and Mr Nathan Beves (Exhibit N 410-412).
46 The following day and thereafter, there were further communications concerning the emails and letters sent to fraternal industrial associations. Mr McAleer arranged for the correspondence to be sent to, for example, the International Dockworkers Council, the PAME and PEMEN (unions based in Greece), the World Federation of Trade Unions, Unions NSW, the AMIEU, the AMOU, the AIMPE, the ASU, the AMWU, the CFMEU, the FSU, the SA, the TWU, and United Voice) (Exhibit N 421-440). This course of conduct reflected the perception of those within the Union, including Mr McAleer and Mr Keating, that the Union was now involved in a major dispute with Patricks.
49 On 9 April 2017, an official MUA media release warned that the "historic peace on the docks" was "under threat", and quoted Mr Tracey as asking: why Qube would "jeopardise future contracts" by "starting a dispute" (Exhibit N 517)? On the same day, a protest assembly formed at the roundabout outside the entry to the Terminal. It was apparent to the general manager of Human Resources, Industrial Relations and Safety, Ms Maria Zoras-Christo, whose evidence was admitted without any limitations upon its use, that the picket had been organised by the Union as there were individuals holding MUA banners, together with individuals wearing MUA merchandise such as hats and t-shirts. She also witnessed Mr McAleer and Mr Keating being present at the picket and addressing the protesters. This picket involved a three-hour blockade of the Terminal during which time the employees, customers and truck operators could not access the Terminal. Ms Zoras-Christo gave unchallenged evidence, which I accept, that it was her understanding based on what she observed that the picket was in relation to the Union's objection to Qube using the Sublease area (Zoras-Christo affidavit, MNZC-29 at [15]). On the state of the evidence, no other conclusion is reasonably open other than accepting that Ms Zoras-Christo's understanding was correct.
53 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]).
54 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).
55 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]).
56 Matters now came to a head. During the day shift of 20 April, rail employees were specifically directed to unload empty containers and refused to do so. The details were as follows: a train operated by Qube (the 5166 Narromine Service) was to be "(b)ackload[ed] 20ˈ empties from Qube" (Exhibit N 927). After the train arrived at about 10:30am, Qube trucks arrived from the Sublease Area to be unloaded (Exhibit C at [62]-[63]).
57 Very shortly before, the telephone records in evidence in Exhibit N establish that at 10:13 am, (that is, approximately 15 minutes before the arrival of the Qube train) which was to be loaded with empty containers, Mr Peter Balzan, a Patricks employee and Union member who works in the railyard, called Mr Keating apparently without success (the call time was four seconds). Three minutes later, Mr Keating returned Mr Balzan's call and there was a conversation of almost five minutes. Following that conversation with Mr Balzan, Mr Keating sent an SMS to Mr McAleer. After 10:30am, there was a flurry of calls - some apparently unsuccessful: Mr Balzan tried to call Mr Keating; Mr McAleer tried to call Mr Keating; and Mr Keating tried to call Mr McAleer.
58 In any event, at about 10:54am, Mr Balzan approached Mr Guy and asked to discuss the "rail situation". Mr Balzan stated that the Qube trucks would not be unloaded (Exhibit C at [66]-[67]). A further conversation to similar effect took place shortly thereafter (Exhibit C at [70]; Exhibit G at [21]). At around the same time, Mr Guy and Mr Laroche went to the Rail Yard and asked the day shift rail employees if they would unload the empty containers from the Qube trucks. In response, Mr Balzan stated that they would not (Exhibit G at [23]-[25]).
59 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.
60 Other evidence establishes that Mr Balzan's communicated refusal reflected a ban on unloading (Ban) by rail employees which was implemented by the Union during and from the day shift on 20 April. In particular, the evidence demonstrates that various rail employees, during the course of 20 April, stated their position in words to the following effect:
• "We aren't going to take empty containers from the Qube sub-lease trucks and load the train. It is a new line of work. We haven't been consulted about it and it's also within the terminal therefore it is our work ..." (Exhibit C at [67]);
• "We aren't doing the sub-lease rail trucks due to 1.3" (Exhibit C at [74]; and
•In response to a direction to unload the trucks: "[n]o, under 1.3 we are refusing to do it" (Exhibit C at [80]).
61 The reference to "1.3" requires some explanation. After the Ban commenced on the day shift, Mr McAleer, in a telephone call to Mr Guy, asserted that Patricks was in breach of the Enterprise Agreement because of "lack of consultation" under clause 1.3 of Part B, Schedule 4 of the Enterprise Agreement (clause 1.3). This allegation is one to which it will be necessary to return, in detail, below. It suffices to note for present purposes, that this was substantively the same allegation that had been made in the First FWC Application lodged by the Union on 17 March 2017.
62 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.
63 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]).
64 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.
65 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).
66 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.
67 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.
68 What also occurred on 21 April, is that at 12:11pm, Mr Fernon SC on behalf of Patricks, had appeared ex parte before the Duty Judge, Perram J, commencing the Patrick Proceeding. Mr Fernon made an urgent application, or more accurately, alternative applications: one to enforce the orders made the previous evening by the FWC in the Second FWC Application; the other, a "direct injunction" to prevent, effectively, industrial action before the expiry of the nominal period. Mr Fernon explained (T4.13-19):
... there is an area of the Patrick terminal which is occupied by a related company, Qube. That company, I think, subleases that area and stores empty containers in that area. That sort of operation was previously conducted at another place. That operation is now conducted at Qube whereby empty containers are stored there as they're required. They're brought out by a truck to be then loaded onto a train, to be taken to wherever they need to be taken.
69 After a short adjournment occasioned by reason of his Honour requiring more detail and sworn evidence, the matter resumed at 2:19pm. At that time, the following exchange occurred (T5-6):
HIS HONOUR: Yes. Mr Fernon, now I've read the second affidavit. I've got a couple of questions. So in paragraph 6(c), it's a bit cryptic. "Previously conducted at a different location being a location within a stevedoring terminal operated by a different stevedoring company." Okay. What does that mean?
MR FERNON: That means, your Honour, that the containers that are now stored in the area subleased by [Qube] were formally stored by a different stevedoring company.
HIS HONOUR: Am I allowed to know who the different stevedoring company is?
MR FERNON: So effectively stored at one place previously, now stored at - - -
HIS HONOUR: So the MUAs complaint is essentially this is an attempt to use non-unionised labour for stevedoring activities and your point is this is not a stevedoring activity.
MR FERNON: Not a stevedoring activity and done by [Qube] not done by - - -
MR FERNON: - - - done by Patrick's, yes. And some of the flavour of that your Honour might have seen from - - -
HIS HONOUR: Yes. No, I read it. Thank you. That was useful. So I suppose your strongest case is to enforce the conditions order.
HIS HONOUR: Which requires little investigation on my part.
HIS HONOUR: And then order is there. One question, why an ex parte injunction? Why not short service?
MR FERNON: Because, your Honour, there are as I understand it two vessels presently at the terminal.
HIS HONOUR: They're the ones which haven't been sealed up, I assume.
MR FERNON: Yes, your Honour. And they should be being worked on this morning. It may be that they should have been completed. Now, I'm not sure about that detail but there's work to be done immediately, your Honour, and the matter is urgent, and your Honour it was dealt with last night in terms of the industrial merits side of it. And so that what we're concerned about is the breach of the commission order which is preventing the work from being done.
70 Justice Perram made orders which were directed to those employees identified in Schedule A of the order (as being persons who had refused to perform work) and also to other relevant persons (identified in Schedule B). The orders were relevantly in the following terms:
Upon the prospective Applicant, through its counsel giving the usual undertakings as to damages, the Court orders:
1. Each of the persons identified in the Schedule are restrained from engaging in industrial action in the form of a stoppage of work or refusal to attend for, or perform work, at the Port Botany container terminal operated by the Applicant.
2. Each of the persons identified in the Schedule are restrained from engaging in industrial action in the form of a ban on the loading or unloading of trucks arriving at the railyard of the Port Botany container terminal operated by the Applicant.
3. These orders may be served by sending a series of text messages to each employee in the Schedule to the effect that:
a. First text message: "An order that concerns you has been made by the Federal Court of Australia in relation to the stoppage of work and ban at the Patrick Container Terminal. Please see text message following."
b. Second text message: "A copy of the order has been placed on the noticeboard at the site for your information. Please call Gus May on [xx xx xx] if you would like a copy of the order".
c. Third text message: "A copy of the application that was made and supporting affidavits can be obtained from Mr May on request".
71 A useful picture of what then went on can be gleaned from an exchange of emails between Mr McAleer and Mr Crumlin (Exhibit N 1178) by which Mr McAleer expressed his frustration and forwarded an email sent to him by Mr Adam Jacka who had informed him of the developments that afternoon in the Federal Court. It also graphically reflects that Mr McAleer had intentionally sought to rally the workers, or advise them, to conform to the strategy that he had fastened upon. Mr McAleer wrote at 7:15pm that evening:
The guys walked back in with the shits filthy on everyone and everything on the basis of working with the company to a fix. They were prepared to back the advice from me. They didn't want to walk back in the basis of me not being involved in the meeting between jovocic, Ryan and yourselves, a meeting that didn't even happen. I've let them down.
And we have in the background federal court. No wonder this wasn't described to the members today before they made the decision to walk back in.
I feel massively let down by national office on this whole issue and the way it has been handled since December.
We should reflect the members bravery and courage as their elected leaders not squander their faith and trust in us by believing the filthy rotten boss
72 Following the orders of the Federal Court, the General Stoppage of Work on 20 and 21 April came to an end. At around the same time, apparently a decision was made by Patricks not to require the rail employees to unload empty containers from trucks operated by Qube leading up to Anzac Day (apparently to avoid triggering the ban on such activity and creating a situation of increased industrial hostility (Exhibit C at [156]-[159])). Mr Guy gave evidence that he had expected the rail employees to continue to refuse to do the work the subject of the Ban based on his discussions with Mr McAleer, the events of the previous three days, and because no employee had indicated a willingness to do the relevant work (Exhibit Q2 at [5]).
73 But following Anzac Day, the Ban continued. On the morning of 26 April, Mr Keating again asserted that Patricks' direction to load empty containers from the Sublease Area was a breach of clause 1.3, and that what Patricks was doing was "fancy manoeuvring" around the stevedoring award (Exhibit C at [167]). Mr Oates, one of the rail employees on the 26 April 2017 day shift, indicated that they were not performing the work because they had been told not to by the Union (Exhibit C at [172]).
74 Before meeting with Mr Guy on 26 April, the rail employees on the day shift indicated that they wished to be represented by Mr Matthew Freestone (Exhibit C at [176]). At 11:39am, Mr Freestone made a telephone call to Mr Keating which lasted 1 minute and 45 seconds. Mr Freestone then proceeded to represent the rail employees on the 27 April day shift in their discussion with Mr Guy, and stated that they would not perform the work of back loading empty containers in reliance on clause 1.3 (Exhibit C at [177]).
75 At around 1:18pm on that day, Ms Zoras-Christo observed Mr McAleer and Mr Garett standing in the carpark with five employees, two of whom were Ms Adele Lucas and Mr Matthew Freestone. Mr Garrett was the assistant secretary of the Sydney branch of the Union (Zoras-Christo affidavit MNZC-29 at [24]).
76 During the evening shift on 27 April, Mr John Bell acted as a representative of the rail employees who refused to backload empty containers (Exhibit G at [90]-[93]). At 3:17pm, Mr Bell made a telephone call to Mr Keating which lasted 27 seconds. Consistently with the position previously notified, the evening shift employees on 27 April said that they would not unload empty containers from Qube trucks arriving from the Sublease Area (Exhibit G at [92]).
77 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).
78 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]).
79 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.
101 Although the submission was not developed, Patricks asserted that pursuant to s 793(1), any action taken by Mr McAleer and Mr Keating in contravention of s 417 can be attributed to the Union, such that the Union may also be taken as having contravened s 417. The respondents argued that, plainly enough, actions of the Union membership could not be attributed to the Union, but that such attribution would be limited to Union officials such as Mr McAleer and Mr Keating. Whether any particular actions of Mr McAleer and Mr Keating should not be attributed to the Union was not the subject of any debate.
102 Pursuant to s 793(1) of the FW Act, conduct engaged in on behalf of the Union by an officer, employee or agent of the Union, within the scope of their actual or apparent authority is taken, for the purposes of the FW Act, to have been engaged in by the Union. The state of mind of the officer, employee or agent of the Union may also be attributed to the Union for the purpose of proving a contravention: s 793(2).
103 It is, of course, agreed between the parties that at all relevant times, Mr McAleer and Mr Keating were Union officials within the meaning of the FW Act (Exhibit J [8]-[9]) and the Union did not dispute that any of the impugned conduct was within the scope of their actual or apparent authority.
104 In relation to the alleged contraventions of ss 340 and 343, it is similarly submitted that by reason of s 363(1)(b) of the FW Act, any action taken by Mr McAleer and Mr Keating is taken to be an action of the Union. Section 363 requires that the Union officials were "acting in that capacity". Again, no submission was made that Mr McAleer or Mr Keating were not acting in their capacity as officers of the Union.
112 The focus of this section is recording, on the basis of the factual findings identified, whether the Union and Mr McAleer organised or were involved in the Ban generally (and Mr Keating as to the day shift on 1 May). (I deal with the General Stoppage of Work in Section G.1 below.)
113 The contemporaneous documents, at a branch and national level, are replete with the Union considering that it was in a pitched battle with Patricks in relation to the proposed use by Qube of the Sublease Area. Although not admitted, the notion the Union had not organised the relevant activity was, perhaps unsurprisingly in these circumstances, not seriously put in contest by the Union which, as will become evident, placed most of its emphasis on the fact that the activity did not constitute "industrial action" for the purposes of the FW Act.
114 Nor, save for the fact of non-admission, was the notion that Mr McAleer was factually responsible for the organisation of the Ban the subject of any real rebuttal; the focus again being on whether or not "industrial action" existed.
115 Although it may have been more convenient and consistent with the overarching purpose not to put the issue of organisation of the Ban in contest, the reason for not seeking to mount an affirmative case of failing to organise or non-involvement is clear having regard to my findings.
116 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.
117 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.
118 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.
186 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.
188 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).
189 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.
198 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.
199 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.
200 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).
201 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.
234 In the introduction I referred to the byzantine relief sought, particularly in the Patricks Proceeding. Declaratory relief should be granted in order to reflect the fact that I have found that each of the respondents engaged in contravening conduct. Having said this, the declaratory relief should be expressed as simply and non-repetitively as possible. If it is regarded as necessary by Patricks, I will hear argument as to the coercion allegation on the basis of my findings with the assistance of submissions from the parties to the Patricks Proceeding."
"[8] The CFMMEU called no evidence and relied on its oral submissions.
[9] The evidence revealed that DP World has been in discussions with its maintenance employees about the performance of a "rope change" on two quay cranes at its container terminal at Port Botany. When a quay crane is operating, loads are suspended from a wire rope, and these ropes must be replaced from time to time, as they experience damage and/or wear and tear. To avoid the ropes becoming unserviceable and potentially breaking, they must be replaced.
[10] DP World formed the view that it could not rely on sourcing from its workforce sufficient qualified labour to replace crane ropes as the work would need to be performed using at least five employees working on an overtime basis. Overtime work is voluntary and there had been little acceptance by employees of voluntary overtime since early March 2021.
[11] DP World stated that it engaged in consultation with maintenance employees represented by CFMMEU delegates where they advised them that due to the lack of guaranteed labour from directly employed maintenance employees, that "rope changes" ought be performed by a qualified contractor.
[12] The rope changes were to occur in mid-April 2021, however on 26 March 2021, crane 4 broke down. The break down was said by DP World to be due to driver error and resulted in damage to the wire ropes on the crane. The repair required the replacement of the wire rope on an urgent basis, and as such DP World decided to bring forward the rope change on crane 4 to Tuesday, 30 March 2021 and to have a contractor undertake the work. On the same day, the maintenance delegates were advised of this course of action and that it would occur on 30 March 2021.
[13] Mr Hulme's evidence was that at around 1:00 pm on Sunday, 28 March, he received a telephone call from Brad Dunn, a former DP World employee, now an Assistant Branch Secretary of the MUA's Sydney Branch. Mr Dunn asked that DP World not use contractors to undertake the proposed repair work. Mr Hulme responded that the work had already been committed to with the contractor and if the maintenance employees want the work in the future, they must provide certainty of labour.
[14] At approximately 2:00 pm, Mr Hulme received a telephone call from Paul Keating the Branch Secretary of the MUA Sydney Branch. Mr Hulme's evidence was that initially, Mr Keating made several of the same points as Mr Dunn and said words to the effect of "you shouldn't do this, contracting out our work."
[15] Mr Hulme states that Mr Keating quickly became abusive, making comments such as:
"you're a f...king idiot, if you think I'm going to stand by and let this happen",
and referring to Mr Hulme as a "coward" and "prick", and that he was showing "disrespect" to him.
[16] Mr Hulme states that Mr Keating said words to the effect of:
[17] Towards the end of the conversation, Mr Hulme states that he said to Mr Keating that there was a dispute resolution procedure to be followed which can be escalated, to which Mr Keating replied:
"We are not taking this to the Commission. We will deal with it."
[18] On 29 March 2021, with the day shift beginning at 06:00am, delegates of the CFMMEU representing maintenance employees informed DP World that because of the decision to contract out the rope change on crane 4, employees would 'sit in' and refuse to work. Employees refused to leave the break room. At around 07:20am, Mr Hulme had a conversation with Mr Dunn in the Operations Open Plan area where Mr Dunn said that if DP World called the stoppage a safety matter and did not dock pay, employees would return to work. This was not agreed to.
[19] At 09:18am, Mr Hulme received an email from Mr Greg Evans, an employee and MUA delegate, which was headed "Outsourcing of wire rope work." The email said that without the coverage of maintenance employees it was not safe for other employees to perform work (operations employees). Mr Hulme replied saying that it was not a safety dispute and that operational employees were supporting the maintenance employees' refusal to work.
[20] At around 10:00am, all employees began normal work, but no explanation was given to DP World for the return to work. During the period from 6:00am to 10:00am, the terminal 'almost entirely' ceased operation due to withdrawal of the labour.
[21] At 06:00am on 30 March 2021, the contractor was due to begin the rope change on crane 4 and both the maintenance and general operations day shifts were due to commence work but did not.
[22] CFMMEU delegate Mr O'Sullivan advised DP World that employees would return to work if DP World confirmed in an email that the work for the next rope change for crane 5 would not be outsourced.
[23] Mr Farmer's evidence was that at around 06:30am, some maintenance employees assigned to breakdown crew made themselves available for work so that they could perform any emergency maintenance work if called upon.
[24] An email was sent by Mr Farmer at 06:43am which provided the confirmation requested by Mr O'Sullivan, however Mr Dunn advised Mr Farmer that the email was not sufficient and made further requests stating that employees would not return to work until the requests were agreed.
[25] Mr Keating arrived at the site at around 07:47am.
[26] At around 08:05am, Mr Farmer went to the smoko room and was told that work would not commence. At around 08:15am, the breakdown crew labour was withdrawn, and the general operations employees stopped work.
[39] In this matter, the evidence before the Commission, some of with has been extracted above, undoubtedly supports the proposition that the CFMMEU is organising the unprotected industrial action. Its employee delegates and officials of the MUA have been active participants in the dispute with DP World as the evidence of Mr Hulme and Mr Farmer clearly demonstrates. There is no evidence that employees have embarked on the unprotected industrial action independently without the active advice/support of the MUA officials or its onsite employee delegates.
[40] I hence find that the unprotected industrial action was being organised by the CFMMEU, its MUA officials and delegates employed by DP World and thus the order will also cover the CFMMEU, its MUA officials and delegates employed by DP World."
"On 23 April 2015, I was ordered to pay a $550 fine by the New South Wales Police in relation to a "fail to quit" notice issued to me. The fine was imposed because I was asked to leave a licensed premise and did not do so in a timely enough manner. I paid the fine in full and have not had any further fines issued since that time."
"16. This incident occurred when I was at a bar and some of my peers were refused service. I went to spoke [sic] to the security guard to resolve the situation. The security guard decided that we all had to leave.
17. At no stage was I intoxicated during this event and at no stage did I refuse to leave the premises. I did not believe that the fine was warranted.
18. I paid the fine in full rather than going to the expense and inconvenience of defending the matter in Court. I did not understand that by paying the fine I was admitting that I committed an offence. I have not had any further fines of that nature issued to me since that time."
[3] Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J
[5] 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 Parker and Others [2010] FCA 771; (2010) 189 FCR 1 at 13 [44]
[6] Construction, Forestry, Mining and Energy Union v Fair Work Commission [2017] FWCFB 4141
[12] [2019] FCA 1942 at [6], [19]
[14] Applicant's supplementary submissions dated 1 September 2021 at [19]-[21]
[16] DP World Sydney Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 1746
Printed by authority of the Commonwealth Government Printer
(1990) 170 CLR 321
(2012) 203 FCR 389
(1989) 20 FCR 403
(2010) 189 FCR 1