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[2020] FCAFC 192
appellant. Leave to amend the notice of contention dismissed; appeal allowed; cross-appeal dismissed; declarations and Orders 2-8 made on 12 November 2019 set aside; proceedings at first instance dismissed;...
9 cited instruments linked from this judgment.
The Full Court (majority) decided that a union cannot lawfully organise a work stoppage to pressure a head contractor into providing extra site amenities like toilets and sheds, because such a request is not an 'industrial activity' tied to freedom of association under the Fair Work Act. The union's appeal succeeded, the penalties and declarations were overturned, and the case was dismissed. The decision emphasises reading the law in its full context rather than taking words literally.
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3,358 words · generated 24/04/2026
In April 2015 two officers of the Construction, Forestry, Mining and Energy Union (CFMEU), Stephen Long and Gerard Benstead, attended a building site at Bay Street, Brighton, Melbourne. The head contractor was Tarastar Pty Ltd trading as BPM Built (BPM). Subcontractors Straight Line Excavations Pty Ltd and Wagstaff Piling Pty Ltd performed piling, excavation and steel-fixing work, employing their own labour and some independent contractors. A female worker was present on site.
On 21 April 2015 Benstead told BPM's senior site supervisor Robert Finney that the amenities were inadequate. He identified two specific deficiencies: no dedicated ladies' toilet for the female worker and sheds that were not large enough. Later that afternoon Benstead telephoned BPM's construction manager Luke Skurrie and repeated the complaints. Skurrie undertook to arrange a separate toilet but maintained the existing shed could accommodate the 16 workers then on site. No immediate changes were made.
On 22 April 2015 Long and Benstead returned. After speaking with workers they informed Finney that the workers were being sent home because the amenities were not up to standard. The subcontractors' employees left the site between 1:00 pm and 1:30 pm rather than working until the usual 5:30 pm finish. That afternoon BPM ordered a larger shed and a portable toilet; both were delivered and installed before work resumed on 23 April. On 23 April Benstead returned, observed the improvements and remarked that he had "got [BPM] all wrong".
The Australian Building and Construction Commissioner alleged that Long, Benstead and the CFMEU had organised industrial action (the stoppage) against BPM because BPM had engaged in industrial activity by not complying with the CFMEU's lawful request for additional amenities (Fair Work Act 2009 (Cth) (FW Act) s 347(b)(iv)) and by not representing or advancing the CFMEU's views, claims or interests (s 347(b)(v)). The Commissioner further alleged the stoppage was organised with intent to coerce BPM to engage in that industrial activity, contrary to s 348. Reliance was placed on ss 363 and 793 to attribute the officials' conduct and states of mind to the CFMEU.
At first instance the primary judge upheld the Commissioner's claims based on s 347(b)(iv) but rejected the s 347(b)(v) claim: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; (2018) 260 FCR 564. His Honour made declarations, imposed penalties of $38,000 on the CFMEU, $6,000 on Long and $6,500 on Benstead, and issued non-indemnification orders: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859. The CFMEU, Long and Benstead appealed. The Commissioner cross-appealed on the number of contraventions attributed to the CFMEU and filed a notice of contention.
The Full Court (Allsop CJ, Flick and White JJ) determined the matter on the papers. By majority (Allsop CJ and Flick J, White J dissenting on the construction point but agreeing in the result), the Court held that the amenities request did not engage s 347(b)(iv) because it was not a request concerning participation in the activities of or concerning the CFMEU. Grounds 1–3 of the appeal were upheld on that basis. Grounds 4 and 5 succeeded because the stoppage was not industrial action "against" BPM within s 342(1) item 7(a), as none of the workers who stopped work were BPM employees (following Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268). The Commissioner's application to amend his second notice of contention to rely on s 342(1) item 7(c) or on "illegitimate or unconscionable" conduct was refused. The cross-appeal on multiple contraventions was dismissed. The appeal was allowed, the first-instance orders set aside and the proceedings dismissed: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192 at [1]–[39] (Allsop CJ), [40]–[74] (Flick J), [75]–[265] (White J, agreeing in orders).
The majority (Allsop CJ and Flick J) grounded their reasoning in the statutory text read in its immediate and broader context, informed by the objects of Pt 3-1. Allsop CJ emphasised that words are never read in isolation; context, purpose and policy are "surer guides to meaning than the logic of the construction of the provision" ([4], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381 [69] and High Court authorities from K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 onward). He rejected any notion that context or extrinsic materials could be consulted only after ambiguity appeared in the text ([5]).
Chapter 3 of the FW Act concerns rights and responsibilities of national system employers, employees, organisations and others. Part 3-1 is headed "General protections". Its objects are stated in s 336: to protect workplace rights, to protect freedom of association by ensuring persons are free to become or not become members of industrial associations, free to be represented or not represented by them, and free to participate or not participate in lawful industrial activities (s 336(1)(b)), to protect against discrimination, and to provide effective relief. The guide in s 334 expressly states that Div 4 "protects freedom of association and involvement in lawful industrial activities".
Allsop CJ observed that freedom to participate in lawful industrial activities is an aspect of freedom of association ([15]). The phrase "lawful industrial activities" takes its content from s 347, which supplies the definitional subject matter for the operative prohibitions in ss 346, 348 and 349 ([17]–[23]). Paragraphs (a) and (b) of s 347 concern lawful activity; (c)–(g) concern unlawful activity or unprotected industrial action. All the activities in (a) and (b) are activities "of, in, with, on behalf of, or in relation to" an industrial association ([23]). The word "participate" connotes taking part with others in some common action ([18]). Thus the object in s 336(1)(b)(iii) is to protect freedom to participate or not in lawful industrial activities of or concerning industrial associations ([24]–[25]).
Against that background, s 347(b)(iv)—compliance or non-compliance with a "lawful request made by, or requirement of, an industrial association"—cannot be read as extending to any request on any subject made to any person. Such a reading would travel far beyond the subject matter and object of Pt 3-1 ([28]). A request for additional portable toilets or larger sheds on a building site is not a request about activities of or concerning the CFMEU in which there is freedom to participate or not ([30], [35]). The majority rejected the proposition that s 347(f) (industrial action) justified expanding s 347(b)(iv) to site-condition demands; industrial action is prima facie unlawful and protected by a different mechanism ([31]).
The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) confirmed the construction. Paragraphs 1338, 1400 and 1402 describe the protections as revolving around "being or not being a member or officer of an industrial association" and "participation or non-participation in other lawful industrial activity" ([34]). The EM's reference to "participation protections" in [1416] reinforced that the activities listed in s 347(b)(i)–(v) concern participation in the affairs of industrial associations. It was not meaningful to say that BPM, by refusing the toilet request, was exercising a freedom to participate in the CFMEU's activities ([35]).
Flick J concurred, adding that the primary judge's "preferred" construction was correct and that Jessup J's broader reading in Esso Australia Pty Ltd v Australian Workers' Union [2015] FCA 758; (2015) 253 IR 304 should be departed from ([45], [72]). He emphasised the distinct focus of Div 3 (workplace rights) and Div 4 (industrial activities), the natural meaning of the words when read in Div 4, and the need for coherent operation with s 343(2) which exempts protected industrial action from the coercion prohibition in the workplace-rights context ([67]–[71]). A construction that rendered the same conduct both protected under Pt 3-3 and unlawful under s 348 was to be avoided.
White J dissented on the s 347(b)(iv) point, preferring a broader literal reading informed by the legislative history and EM, but agreed that the stoppage was not industrial action "against" BPM because the employees who stopped work were not BPM's employees ([196]–[213]). That alternative ground also required the appeal to be allowed. The majority therefore allowed the appeal on grounds 1–3; White J's reasons resolved the remaining grounds consistently with dismissal of the proceedings.
Before the FW Act, freedom of association was protected in Pt 16 of the Workplace Relations Act 1996 (Cth) (WR Act), particularly after the Work Choices amendments. Sections 792–802 contained detailed, situation-specific prohibitions organised by reference to who did what to whom. Section 793(1)(o) prohibited adverse action against an employee or independent contractor who, as an officer or member of an industrial association, had done or proposed to do a lawful act within authority to further or protect the industrial interests of the association. Equivalent provisions appeared in earlier legislation back to s 5 of the Conciliation and Arbitration Act 1904 (Cth). None of those provisions penalised an industrial association for taking action because a third party failed to comply with a lawful request unrelated to association activities ([36], per Allsop CJ; [180]–[182], per Flick J).
The FW Act recast these protections into the more abstract language of Pt 3-1 Div 4. The legislature used general terms ("a person", "lawful request", "industrial activity") and a single definition in s 347. The EM stated that the new provisions "rationalise but do not diminish" existing protections and that in some cases the generality expanded their scope ([1335]–[1336]). The majority accepted that the FW Act effected law reform but held that the reform was not to create an unlimited prohibition on any response to any lawful request by any industrial association. Rather, the subject matter remained protection of freedom of association and participation in association-related activities ([36]–[37]).
After the Bay Street Appeal the law is settled at Full Court level that s 347(b)(iv) does not reach demands for improved amenities or working conditions simpliciter. A union request must concern participation (or non-participation) in the activities of or concerning the industrial association itself. Non-compliance with a site-amenities demand therefore cannot ground a s 346(b) or s 348 case. The decision also confirms that "industrial action" within s 342(1) item 7(a) must be taken by the employees of the person against whom the action is said to be organised; action by subcontractors' employees does not constitute industrial action against the head contractor ([196]–[213], White J, agreed in result by majority). The Commissioner’s attempt to rely on item 7(c) (prejudicing an independent contractor) failed because that case had not been pleaded.
Paragraph [6] (Allsop CJ): "The meaning, including the scope, of s 347 is to be ascertained by applying the above principles. The content of meaning of s 347 is taken from its terms, read and understood from its context and purpose, an understanding of which is gained from the terms of the legislation and its enactment history, including the Explanatory Memorandum."
Plain English: You cannot decide what s 347(b)(iv) means by looking only at the dictionary meaning of "request". You must read it with the rest of Pt 3-1, especially the objects that say the law is there to protect freedom of association and participation in union-type activities. History and the EM help show what Parliament was trying to achieve.
Paragraph [15] (Allsop CJ): "Freedom to be involved in lawful industrial activities is an aspect of freedom to associate. If one is free to associate, but one has no protection to engage in lawful industrial activities as an expression of the association with others, the freedom to associate is undermined or diminished."
Plain English: Joining a union is pointless if you can be punished for doing the things the union does together. The law therefore protects the practical side of belonging to a union.
Paragraph [25] (Allsop CJ): "The activities collected in s 347(a) and (b) all concern persons engaging (or not) in activities of, in, with, on behalf of, or in relation to (that is, which concern) industrial associations. They are activities in which participation (or not) is intended to be protected: that is protection of participation (or not) in activities of, in, with, on behalf of or in relation to industrial associations."
Plain English: Every item in s 347(a) and (b) is tied to the union itself. The protection is about being free to join in (or stay out of) the union’s own work, not about every possible request a union official might make.
Paragraph [35] (Allsop CJ): "It is not meaningful to say that by not complying with the union's request or requirement for an additional portable toilet for the female worker on a building site the head contractor on the site was somehow exercising a freedom to participate in the activities of or concerning the union."
Plain English: Refusing to buy a portable toilet is not the same as refusing to join the union or refusing to help organise a union meeting. The first has nothing to do with the freedom to associate that the law is trying to protect.
Paragraph [72] (Flick J): "s 347(b)(iv) should be confined in its interpretation and application to protecting a person's freedom of association and participation or non-participation in the activities of industrial associations, and should not be extended to conduct in circumstances where a union makes a request of, or a requirement of, an employer."
Plain English: The section stops employers punishing workers for being union members or helping the union. It does not stop unions from being held to account when they shut down a site over toilets.
The precedent is triggered when an industrial association (or its officers) organises or takes action against a person because that person has not complied with a request or requirement, and the request or requirement does not concern participation in the association’s own activities. Typical triggering patterns include:
A union official demands improved site amenities (extra toilets, crib rooms, larger sheds) and organises a stoppage when the head contractor does not comply immediately. The stoppage cannot be characterised as adverse action or coercion under ss 346 or 348 because the request is not within s 347(b)(iv) ([30], [35]).
A union requests that a third party (not even an employer) make a charitable donation, alter a newspaper article, or sell land on particular terms, and then takes industrial action when the request is refused. Again, the request is dissociated from association activities.
An official of one union asks an employee who belongs to a different union to attend a meeting during lunch (no stoppage of work) and the employee is dismissed for doing so. The request is not "industrial activity" within s 347(b)(iv) because it does not concern participation in the requesting union’s affairs (see Flick J at [58] discussing the primary judge’s reasoning).
The precedent does not apply where the request does concern association activities: for example, a request to allow union officials to hold a meeting on site during a valid right-of-entry visit, or a request to deduct union dues, or a request to allow an employee to attend a union conference as a delegate. In those cases non-compliance can constitute industrial activity under s 347(b)(iv) and may ground a s 346 or s 348 case.
The decision also confirms a second, independent trigger: industrial action can be "against" a person for the purposes of s 342(1) item 7(a) only if it is taken by that person’s own employees. Action by subcontractors’ employees does not engage item 7(a) even if the head contractor is inconvenienced ([196]–[213]).
The Bay Street Appeal has been treated as authoritative on the narrowed construction of s 347(b)(iv). In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070 at [70]–[113] the primary judge applied the majority’s reasoning to hold that a union’s demand for a particular form of enterprise agreement did not engage s 347(b)(iv) because it was not a request about participation in the union’s internal activities. The Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Brooker Highway Case) [2021] FCAFC 133 cited Bay Street with approval when reiterating that context and purpose confine general words in Pt 3-1.
Subsequent single-judge decisions have declined to follow the broader reading in Esso Australia Pty Ltd v Australian Workers' Union [2015] FCA 758 once the Full Court had spoken. In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Maritime, Mining and Energy Union (The Yarra's Edge Case) (No 2) [2021] FCA 1122 the court noted that Bay Street had resolved the controversy that existed at the time of the earlier authorities. The High Court refused special leave to appeal from related litigation in Australian Building and Construction Commissioner v Auimatagi [2019] HCATrans 74, implicitly accepting that the Full Court’s contextual approach was correct.
Later courts have also applied the secondary holding concerning the identity of the employees who must take the industrial action. In several "head-contractor/subcontractor" stoppage cases the Commissioner has been required to plead and prove that the relevant employees were employed by the person said to be the target of the action, failing which item 7(a) is not engaged.
No court has yet suggested that Bay Street was wrongly decided. Its reasoning on statutory construction has been described as "compelling" and "carefully reasoned" in subsequent judgments dealing with analogous general-protection provisions.
First, the precise boundary of a request "about activities of or concerning the industrial association" remains fact-sensitive. Is a request that an employer contribute to a union-controlled industry fund "about" the association’s activities or merely a demand for money? Is a request to allow employees to attend a union rally during work time within or outside the section? The majority acknowledged that characterisation will be required in marginal cases ([37]), but gave no exhaustive test.
Second, the interaction with protected industrial action under Pt 3-3 is not fully resolved. White J (though in dissent on the main point) noted the absence in s 348 of a counterpart to s 343(2). The majority did not need to decide whether a request that constitutes a claim for an enterprise agreement could simultaneously be a "lawful request" under s 347(b)(iv) and the subject of protected action. Future litigation may test whether the specific provisions in Pt 3-3 prevail over the more general language in Div 4.
Third, the decision leaves open whether s 347(b)(iv) requires the request to have an "industrial" dimension at all. Allsop CJ noted that even if an industrial connection is required, the amenities request satisfied that threshold ([194]). A purely political or charitable request might still fall outside the provision on the majority’s reasoning.
Fourth, the pleading and evidentiary consequences of the "illegitimate or unconscionable" limb of coercion under s 348 remain unsettled. The Commissioner was refused leave to amend his notice of contention to run that argument on appeal. Future cases will need to decide whether a stoppage that is not unlawful under s 346 can nonetheless be characterised as illegitimate or unconscionable when it disrupts scheduled work, and what evidence is required to prove that characterisation.
Finally, the decision does not address the position of independent contractors who are not covered by item 7(a) but may be covered by item 7(c). Whether a union’s request to an independent contractor to join an industry fund or observe a particular safety protocol falls inside or outside s 347(b)(iv) awaits authoritative determination.
Most practitioners now appreciate that the seemingly unlimited language of s 347(b)(iv) is heavily confined by Pt 3-1’s objects. The "gotcha" for those who have not read Bay Street is the assumption that any union request, no matter how mundane, can trigger general-protections liability. The case stands as a reminder that context and purpose still control even after the FW Act’s deliberate use of broad drafting.
onstruction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157; 267 IR 130 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 3) (Cartledge) [2017] FCA 10 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) [2017] FCA 168; 268 IR 178 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Syme Library Case) [2018] FCA 1142 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Webb Dock case) [2017] FCA 62 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 Australian Building and Construction Commissioner v McDermott (No 2) [2018] FCA 1611 Australian Building and Construction Commissioner v Molina [2020] FCAFC 97; 295 IR 414 Australian Building and Construction Commissioner v Pauls [2017] FCA 843 Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 251 FCR 470 Australian Building Construction Employees and Builders' Labourers Federation v Employment Advocate [2001] FCA 1443; 114 FCR 22 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 Branir Pty Ltd v Owston Nominees (No 2 ) Pty Ltd [2001] FCA 1833; 117 FCR 424 Cassell & Co Ltd v Broome [1972] AC 1027 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA; 187 CLR 384 Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 616 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Red & Blue Case) [2015] FCA 1125 Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case) [2015] FCA 1173 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra's Edge Case) [2016] FCA 772 Director of the Fair Work Building Industry Inspectorate v O'Connor [2016] FCA 415 Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; 241 FCR 338 Esso Australia Pty Ltd v Australian Workers' Union [2015] FCA 758; 253 IR 304 Esso Australia Pty Ltd v Australian Workers' Union [2016] FCAFC 72; 245 FCR 39 Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; 263 CLR 551 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934; 280 IR 173 Federal Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; 247 FCR 40 Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1 K&S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited [1985] HCA 48; 157 CLR 309 Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1 McMullin v ICI Australia Operations Pty Ltd (No 7) [1999] FCA 1814; 169 ALR 227 Minogue v Victoria [2018] HCA 27; 264 CLR 252 Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 Newton v Australian Postal Corporation (No 2) [2019] FCA 2192; 292 IR 396 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v A2 [2019] HCA 35; 373 ALR 214 Russo v Aiello [2003] HCA 53; 215 CLR 643 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 The Queen v Holliday [2017] HCA 35; 260 CLR 650 Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719; 76 FLR 455 University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68 Water Board v Moustakas [1988] HCA 12; 180 CLR 491 Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223; 179 IR 441
National Practice Area: Employment and Industrial Relations
Date of hearing: Determined on the papers
Counsel for the Appellants: Mr H Borenstein QC with Mr P Boncardo
Solicitor for the Appellants: Construction, Forestry, Maritime, Mining and Energy Union
Counsel for the Respondent: Mr J L Bourke QC with Mr A D H Denton
Solicitor for the Respondent: Australian Building and Construction Commission
BETWEEN: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Appellant
AND: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Respondent
AND BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Cross-Appellant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Cross-Respondent
GERARD BENSTEAD Third Cross-Respondent
order made by: ALLSOP CJ, FLICK and WHITE JJ DATE OF ORDER: 10 November 2020
THE COURT ORDERS THAT:
ALLSOP CJ: 1 I have read the reasons to be published of White J. I agree with the orders proposed by his Honour. With the exception of grounds 1 to 3, I agree with his Honour's reasons. As to grounds 4 and 5, I would only add a note, for what it is worth, that the Commissioner (unsuccessfully) sought special leave to appeal in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268, but not on the ground now the subject of the contention of error: see [2019] HCATrans 74 (12 April 2019). 2 I have the misfortune to disagree with White J as to the meaning of s 347(b)(iv), though I do not disagree with his expression of the principles of statutory construction, subject to the comments below. I have also read the reasons of Flick J. I agree with them. Like Flick J I do not disagree with the substance of the careful and comprehensive reasons of the learned primary judge. I prefer, however, to express my reasons principally by reference to the words of the statute. This involves no reading in of words. It involves the identification of the subject matter of words and the vindication of clearly expressed statutory purpose. Nevertheless, in the light of the arguments on appeal and the (unjustified) criticisms of the primary judge's reasons and approach, I will begin by saying something of statutory construction. 3 Much has been written by the High Court on statutory construction over 35 years, in particular about the relationship between text and context, including purpose. That discussion in the authorities reflects the perennial debate focused on particular statutory provisions, as they arise from time to time for consideration, between so-called clarity of plain meaning (as if such can reliably exist without context) and the ascription of meaning to words in their context. Whilst there can, naturally, often be differences of opinion about the effect and influence of context, including purpose, in respect of any particular provision, there can be no doubt that words are not read in isolation as if they can have meaning without context. 4 Whatever may be the form of expression by individual judges or groups of judges, the task requires the search for applicable principle, not an emphasis on the literality of words of judgments as if they were the text of a statute: Cassell & Co Ltd v Broome [1972] AC 1027 at 1085 (Lord Reid). Sentences from High Court judgments seen to be favourable to an argument should not be strung together in a particular order to support an argument about the construction of a particular statute, almost as if to create a new, virtual, High Court judgment. The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provision are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material: See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381 [69]; Mason J in K&S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited [1985] HCA 48; 157 CLR 309 at 315 which drew upon Viscount Simonds in Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 (cited in Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1 at 28 [57] and in the other authoritative decisions of the High Court referred to in Federal Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; 247 FCR 40 at 43 [5]); Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at 519 [39]; Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at 671-672 [22]-[23]; and SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at 368 [14]. 5 There can be no doubt that the search for principle in the High Court reveals a settled approach of some clarity: R v A2 [2019] HCA 35; 373 ALR 214 at 223-225 [31]-[37]. The notion that context and legitimate secondary material such as a second reading speech or an Explanatory Memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985: see Jayasinghe 247 FCR at 42-44 [3]-[12]; and CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70 at [8], [50]-[60]. 6 The meaning, including the scope, of s 347 is to be ascertained by applying the above principles. The content of meaning of s 347 is taken from its terms, read and understood from its context and purpose, an understanding of which is gained from the terms of the legislation and its enactment history, including the Explanatory Memorandum. 7 Chapter 3 of the Fair Work Act 2009 (Cth) (the Act) concerns the "Rights and responsibilities of employees, employers and organisations etc". It is divided into seven parts. Part 3-1 (ss 334-378), in which s 347 appears, concerns general protections; Pt 3-2 (ss 379-405) concerns unfair dismissal; Pt 3-3 (ss 406-477) concerns industrial action (for which phrase see s 19); Pt 3-4 (ss 478-521D) concerns right of entry to premises; Pt 3-5 (ss 522-527) concerns stand down; Pt 3-6 (ss 528-536) concerns other rights and responsibilities; and Pt 3-7 (ss 536A-536H) concerns corrupting benefits. 8 Each Part has a provision that is the guide to the Part: s 334 (Pt 3-1); s 379 (Pt 3-2); s 406 (Pt 3-3); s 478 (Pt 3-4); s 522 (Pt 3-5); s 528 (Pt 3-6); and s 536A (Pt 3-7). 9 Some, but not all, of the Parts have provisions that set out the object of the Part: s 336 (Pt 3-1); s 381 (Pt 3-2); and s 480 (Pt 3-4). 10 The context of Pt 3-1 and s 347 that can be drawn from the whole of the statute includes s 3 of the Act, its object clause. Relevantly the object of the Act is expressed to include para (e): The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by: … (e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; 11 Section 6 of the Act describes the context of Ch 3: (1) Chapter 3 sets out rights and responsibilities of national system employees, national system employers, organisations and others (such as independent contractors and industrial associations). (2) Part 3‑1 provides general workplace protections. It: (a) protects workplace rights; and (b) protects freedom of association and involvement in lawful industrial activities; and (c) provides other protections, including protection from discrimination. (3) Part 3‑2 deals with unfair dismissal of national system employees, and the granting of remedies when that happens. (4) Part 3‑3 deals mainly with industrial action by national system employees and national system employers and sets out when industrial action is protected industrial action. No action lies under any law in force in a State or Territory in relation to protected industrial action except in certain circumstances. (5) Part 3‑4 is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act and under State or Territory OHS laws. In exercising those rights, permit holders must comply with the requirements set out in the Part. (6) Part 3‑5 allows a national system employer to stand down a national system employee without pay in certain circumstances. (7) Part 3‑6 deals with other rights and responsibilities of national system employers in relation to: (a) termination of employment; and (b) keeping records and giving payslips. (8) Part 3‑7 deals with offences in relation to corrupting benefits. 12 To a degree repetitiously of ss 3(e) and 6(2), ss 334 and 336 provide a guide to and then objects of Pt 3-1: 334 Guide to this Part This Part provides general workplace protections. Division 2 sets out the circumstances in which this Part applies. Division 3 protects workplace rights, and the exercise of those rights. Division 4 protects freedom of association and involvement in lawful industrial activities. Division 5 provides other protections, including protection from discrimination. Division 6 deals with sham arrangements. Division 7 sets out rules for the purposes of establishing contraventions of this Part. Division 8 deals with compliance. In most cases, a general protections dispute that involves dismissal will be dealt with by a court only if the dispute has not been resolved by the FWC. ... 336 Objects of this Part (1) The objects of this Part are as follows: (a) to protect workplace rights; (b) to protect freedom of association by ensuring that persons are: (i) free to become, or not become, members of industrial associations; and (ii) free to be represented, or not represented, by industrial associations; and (iii) free to participate, or not participate, in lawful industrial activities; (c) to provide protection from workplace discrimination; (d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part. (2) The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise). 13 These provisions, most relevantly the guide in s 334 and the expression of objects in s 336, as part of the Act (Acts Interpretations Act 1901 (Cth) s 13), can be taken as express statutory aids to construction giving "practical content" to words of generality or abstraction in the Part: Russo v Aiello [2003] HCA 53; 215 CLR 643 at 645 [5] (Gleeson CJ). That practical content includes the subject matter to which general words in the Part are directed. The identification of the subject matter and object of a Part does not mean that provisions of the Part should be read down only to satisfy, and no further, the precise terms of the stated object. The object and purpose, to be achieved, may require some width of particular expression: Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 251 FCR 470 at 478 [41]. Nevertheless, understanding the subject matter and object of the Part assists in ascribing meaning to words of generality or abstraction in the Part. 14 Section 334 states that Div 4 of Pt 3-1 "protects freedom of association and involvement in lawful industrial activities". The relationship between the protection of freedom of association and the protection of involvement in lawful industrial activities can be seen in that part of the objects provision that deals with those subjects, s 336(1)(b): (1) The objects of this Part are as follows: … (b) to protect freedom of association by ensuring that persons are: (i) free to become, or not become, members of industrial associations; and (ii) free to be represented, or not represented, by industrial associations; and (iii) free to participate, or not participate, in lawful industrial activities; 15 Freedom to be involved in lawful industrial activities is an aspect of freedom to associate. If one is free to associate, but one has no protection to engage in lawful industrial activities as an expression of the association with others, the freedom to associate is undermined or diminished. 16 Section 336(1)(b) as an aid to interpretation informs one how the subject freedom of association is to be protected: by ensuring that persons are free to become (or not) members of industrial associations, or to be represented (or not) by them, or to participate (or not) in lawful industrial activities. This third way that freedom of association is intended to be protected (s 336(1)(b)(iii)) requires an understanding of the phrase "industrial activities" and what it means to "participate" in them (or not). 17 The phrase "industrial activities" is taken from s 347 which explains (or defines) when a person "engages in industrial activity." Section 347 gives content to the prohibitions in ss 346 (adverse action), 348 (coercion), and 349 (misrepresentations). Paragraphs 347(a) and (b) deal with lawful industrial activity. The word "lawful" is used expressly in s 347(b)(ii), (iii) and (iv); each of the matters referred to in s 347(a), (b)(i), (v), (vi) and (vii) is on its face lawful. Section 347(c), (d), (e) and (g) deal expressly with unlawful activities; s 347(f) deals with industrial action which unless protected under s 408 is, prima facie, unlawful. 18 The ensuring of freedom of participation (or not) in such lawful industrial activities is one of the means to protect the subject of protection: freedom of association. The word "participation" is defined by the Shorter Oxford English Dictionary on Historical Principles (3rd ed, Oxford University Press, 1973 (rev ed 1986)) Vol 2 at 1518 as "1. The action or fact of partaking, having or forming part of; the partaking of the substance, quality, or nature of; 2. The fact or condition of sharing in common (with others, or with each other); partnership, fellowship; profit-sharing. 3. A taking part (with others) in some action or another". The Macquarie Dictionary (rev ed, Macquarie Library, 1985) at 1243 defines "participate" as "1. to take or have a part of share, as with others; share" and "participation" as "1. the act or fact of participating. 2. a taking part, as in some action or attempt. 3. a sharing, as in benefits or profits". 19 The protection of freedom of association by ensuring people are free to participate (or not) in lawful industrial activities is intended to be achieved by the prohibitions in ss 346, 348 and 349. Section 347 is definitional. It supplies ss 346, 348 and 349 with subject matter upon which to operate. 20 Section 346(b) prohibits adverse action against a person because the person engages or has engaged or has proposed to engage in the (lawful) activity in s 347(a) and (b). It is to be recognised, however, that "engage in" the activities in s 347 (a) and (b) has both a positive and a negative aspect: "becomes or does not become, or remains or ceases to be" in (a); and "does, or does not" in (b). On the other hand, s 346(c) prohibits adverse action against a person because the person does not engage, or has not engaged or has proposed to not engage in the (unlawful, subject to protected industrial action in (f)) activity in s 347(c) to (g). 21 Section 348 prohibits specified action against a person to coerce that person or another to engage in industrial activity. 22 Section 349(1) prohibits the making of knowingly or recklessly false or misleading representations about: (a) another person's obligation to engage in industrial activity; (b) another person's obligation to disclose whether he or she, or a third person: (i) is or is not, or was or was not, an officer or member of an industrial association; or (ii) is or is not engaging, or has or has not engaged, in industrial activity. 23 Section 347 explains or defines when someone "engages in industrial activity". The "engaging in" is seen in the relevant verbs in (a)-(g); the relevant industrial activity (participation (or not) in which is intended to be protected) is what is done by those verbs - the activity addressed by the verb in question. All the lawful industrial activities are in (a) and (b) (subject to protected industrial action in (f)); all the lawful industrial activities in (a) and (b) are activities of, or which concern in some prepositional way, an industrial association. This explains why it would have been unnecessary surplusage to add the words "of or concerning industrial associations" after "in lawful industrial activities" in s 336(1)(b)(iii). 24 Recognising the above relationship of s 336(1)(b)(iii) and s 347 (a) and (b), one reads the object of the Part as protecting freedom of association by ensuring that people are free to participate (or not) in lawful industrial activities of industrial associations. Such is not to read anything into s 336(1)(b)(iii); but rather to give it the meaning and content it bears in Part 3-1, in particular recognising what lawful industrial activities are in s 347. Importantly, the engaging in activity in s 347(a) and (b) (including by complying (or not) with the lawful request or requirement for s 347(b)(iv)) is given content and colour by the notion of participation from s 336(1)(b)(iii). 25 The activities collected in s 347(a) and (b) all concern persons engaging (or not) in activities of, in, with, on behalf of, or in relation to (that is, which concern) industrial associations. They are activities in which participation (or not) is intended to be protected: that is protection of participation (or not) in activities of, in, with, on behalf of or in relation to industrial associations. 26 Turning to s 347(b)(iv), and understanding its proper construction as a provision intended to fulfil the object of s 336(1)(b)(iii), and to give the content or subject matter to the protective provisions of ss 346, 348 and 349, one sees freedom of association as intended to be protected by ensuring people are free to participate (or not) in lawful industrial activity of or concerning an industrial association by complying (or not) with a lawful request by or a requirement of the industrial association. 27 The question in this appeal is the intended subject or scope of the "request" by or the "requirement" of the industrial association, because the compliance or non-compliance with it is the "engaging in industrial activity". 28 Is it to any request by or requirement of an industrial association to any person in the world for any reason whatsoever? Such a broad and unqualified scope would appear to travel far beyond the intended subject matter and object or purpose of the Part given by the Act itself in ss 3(e), 6(2), 334 and 336. From s 336 one is told that the protection of freedom of association is to be ensured in part by ensuring the freedom to participate (or not) in certain lawful activities. That participation is in lawful activities of or concerned with industrial associations in s 347(a) and (b). The request or requirement can thus be seen to be about activities of or concerning the association in which there is to be freedom to participate (or not). This is expressed slightly differently to the expression of the matter by the primary judge at [32] and [66] of his Honour's reasons. The difference is not substantial and may avoid possibly arbitrary distinctions being drawn. 29 Thus read, there is no call from the expressly stated purposes of the Part for s 347(b)(iv) to travel beyond protecting freedom of association by ensuring people are free to participate (or not) in the lawful activities of or concerning industrial associations. 30 In particular, there is no call to construe s 347(b)(iv) as extending to a party complying or not with a lawful request by or requirement of an association not about activities of or concerning the association, but about working conditions on a building site, or, perhaps, about the terms and conditions of a proposed sale of commercial property by a third party to the association, or, perhaps, about the terms of a proposed newspaper story about the association and its activities. Such subjects of requests fall within the literal words of s 347(b)(iv), but have nothing to do with participation in the activities of or concerning the association, though each may, or may not, have some connection with industrial activity. Countless other examples flow from modest releases of the imagination. 31 That s 347(f) concerns industrial action (as defined in s 19) does not provide a ground to expand the field of operation of s 347(b)(iv) to requests on employers for better facilities or terms or conditions on a site (or any other requests of others the imagination may call forth). Industrial action (subject to being protected action) is prima facie unlawful, as are the activities in s 347(c), (d), (e) and (g). Freedom of association is protected by persons being prohibited from taking adverse action against someone who will not engage in industrial action, or coercing someone to engage in such, or making false representations about an obligation to engage in such. 32 Sometimes one can perceive the intended achievement of an object by words which may in practical or intended application reach beyond the precise outer limits of the expressed object in order for there to be no doubt about the achievement of the object. Such is not this case. One can see the intended object of the Part and so the subject to which s 347(b)(iv) is directed. It is not concerned with the responses to lawful requests or requirements disassociated from participation in its activities as set out in s 347(a) and (b). 33 Such a construction does not involve the reading in of any words of limitation into s 347(b)(iv); rather it involves a process of identifying how general words used relate to the subject matter of the provision: protection of freedom of association by ensuring people are free to participate (or not) in lawful activities (as set out by reference to engaging in lawful industrial activities in s 347(a) and (b)) of or concerning industrial associations. 34 The above construction is confirmed by the Explanatory Memorandum to the Fair Work Bill 2008 (Cth). The terms of [1338], [1400] and [1402] are of assistance: 1338. The principal protections in Part 3-1 have been divided into protections relating to workplace rights (which can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements) and engaging in industrial activities (which encompasses the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association). … 1400. Division 4 provides protections in relation to a person's freedom of association and participation or non-participation in industrial activities. The protections in the Division revolve around the right to engage or not engage in certain industrial activities - namely, being a member or officer of an industrial association or engaging in activities of industrial associations. The Division prevents adverse action, coercion and misrepresentations in connection with these industrial activities. It also prevents inducements to be, or not be, a member of an industrial association. … 1402. The industrial activity provisions protect: • being or not being a member or officer of an industrial association; • participation or non-participation in other lawful industrial activity; • non-participation in unlawful industrial activity. (Emphasis added.) 35 The relevant freedom protected by ss 346, 348 and 349 by the subject matter in s 347(a) and (b) upon which the operative provisions work, is freedom to participate (or not) in, that is the taking part with others (or not) in, the activities of or concerning the industrial association, which activities are set out by s 347(a) and (b) as lawful industrial activities, including compliance (or not) with a lawful request or requirement of an industrial association. That is the activity in which the person is to be free to participate (or not). It is not meaningful to say that by not complying with the union's request or requirement for an additional portable toilet for the female worker on a building site the head contractor on the site was somehow exercising a freedom to participate in the activities of or concerning the union. 36 The above construction is consistent with the enactment history. Part 16 of the Workplace Relations Act 1996 (Cth) provided for freedom of association. The provisions were longer and more specifically directed to real-life situations and problems than the more generally or abstractly expressed provisions of Pt 3-1 and, relevantly here, Div 4 thereof. There certainly was a recasting of form especially by reference to an expanded concept of an industrial association in s 12, and also the capturing of non-participation as well as participation, as well as other changes. But the earlier provisions were nowhere directed to penalising an industrial association for taking what might be characterised as industrial action because of a failure of a third party to comply with a lawful request of the association. There was nowhere expressed a policy to introduce such a provision. 37 The breadth of the words in s 347(b)(iv) if read literally, without regard to context, have the capacity to apply to circumstances unconnected with industrial affairs or activity of any kind. If some industrial connection is to be posited, that will require expression and then a process of characterisation of any activity in context to determine application of the provision with that formulated expression of industrial limitation. That is the same process of characterisation of the activity in context as the above construction requires: Is the request by or requirement of the industrial association (compliance (or not) with which is the engagement in the industrial activity) about activities of or concerning the industrial association in which there is to be freedom to participate? There is no more uncertainty in this necessary process of characterisation than in the process of characterisation to limit it to industrial affairs. If there is to be no limit on the provision, its operation has the capacity to be capricious, and unconnected in rational terms to the subject of the legislation. 38 There was no coherent submission put to the Court as to how the above construction would constrain or undermine or inhibit any express or manifest policy of the Act, or any part of it. 39 I would allow the appeal on grounds 1 to 3 and otherwise agree with the approach of White J set out in paragraph 264. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop.
FLICK J: 40 In April 2015 two officers and employees of the Construction, Forestry, Mining and Energy Union (the "CFMEU") (Messrs Long and Benstead) attended a building site at Bay Street, Brighton (the "site"). The head contractor at the site was Tarastar Pty Ltd trading as BPM Built ("BPM"). The contractor's Senior Site Supervisor was Mr Robert Finney. 41 On 21 April 2015, a discussion occurred between Messrs Benstead and Finney at the site in which Mr Benstead said "[y]our amenities aren't big enough". Later that afternoon Mr Benstead had a telephone discussion with BPM's Construction Manager, Mr Luke Skurrie, in which Mr Benstead said that there were "a few problems" at the site. Mr Benstead identified the two problems as being that "[t]here is no ladies' toilet for the lady that's on site and the sheds aren't big enough". The following day Messrs Long and Benstead again attended the site. There was a meeting with the workers which resulted in Mr Long telling Mr Finney that he "was sending the boys home because the amenities aren't up to standard". The workers left the site. A larger shed and a portable toilet were delivered to the site and installed that day. Work resumed on 23 April 2015. 42 Before the primary Judge the Australian Building and Construction Commissioner (the "Commissioner") contended that there had been a contravention of s 346(b) or coercion in contravention of s 348 of the Fair Work Act 2009 (Cth) (the "Fair Work Act"). The Commissioner contended that the conduct of the CFMEU amounted to a "lawful request ... or requirement" within the meaning of s 347(b)(iv) of the Fair Work Act and that by not complying with that request or requirement BPM engaged in "industrial activity", through its non-compliance, by not "represent[ing] or advanc[ing] the views, claims or interests of [the CFMEU]" for the purposes of s 347(b)(v). 43 The primary Judge concluded that Messrs Long and Benstead and the CFMEU had each contravened ss 346(b) and 348: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 83, (2018) 260 FCR 564. The primary Judge subsequently delivered further reasons for granting declaratory relief and for the decision to impose penalties: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2019] FCA 1859. 44 The CFMEU now appeals. There are eight Grounds of Appeal set forth. Grounds 1 to 3 centre upon the correction construction of s 347(b)(iv). The Commissioner has filed both a Notice of Cross-Appeal and two Notices of Contention. The first Notice of Contention was not pressed; the second the Commissioner sought leave to amend. 45 The opportunity has been taken to read in draft form the reasons of both the Chief Justice and those of White J. Concurrence is expressed with the construction to be given to s 347(b)(iv) by the Chief Justice and for the reasons his Honour has given. Justice White has adopted a different construction of s 347(b)(iv). 46 Contrary to the conclusions of White J, it is concluded that Grounds 1, 2 and 3 of the Notice of Appeal should be allowed. The balance of the Notice of Appeal, the Cross-Appeal and the Notice of Contention should be resolved in the manner suggested by White J and for the reasons given by his Honour. 47 Although concurrence is expressed with the reasons of the Chief Justice as to his Honour's construction of s 347(b)(iv), there may be added to those reasons the following short observations.
The Fair Work Act 48 The sections of the Fair Work Act of relevance to the present proceeding are all found within Div 4 of Pt 3-1 of that Act. The structure of the Act, but more particularly, the structure of Pt 3-1, assume importance to the correct construction and application of those sections. 49 Chapter 3 of the Fair Work Act is headed "Rights and responsibilities of employees, employers, organisations etc". Within Ch 3, Pt 3-1 is headed "General protections". The "objects" of Pt 3-1 are set forth in s 336 as follows: Objects of this Part (1) The objects of this Part are as follows: (a) to protect workplace rights; (b) to protect freedom of association by ensuring that persons are: (i) free to become, or not become, members of industrial associations; and (ii) free to be represented, or not represented, by industrial associations; and (iii) free to participate, or not participate, in lawful industrial activities; (c) to provide protection from workplace discrimination; (d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part. (2) The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise). And within Pt 3-1 there appear a number of Divisions, including: Division 3 - headed "Workplace rights"; Division 4 - headed "Industrial activities"; and Division 5 - headed "Other protections." 50 The provisions within Division 3 of Part 3-1 have been well canvassed. Within that Division, it is s 341 which defines a "workplace right" and it is s 342 which defines the phrase "adverse action". It is s 340 which prohibits a "person" taking "adverse action" against another person "because" (for example) that other person "has a workplace right". Considerable judicial attention has thus been directed to the statutory requirement - "because": Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500. Given the application of s 340 to the conduct of a "person" and the width of the definitions in ss 341 and 342, the protection in s 340 extends to conduct including the dismissal by an employer of an employee or a prospective employee, and the taking by an industrial association of "industrial action" against another. Section 343 within Division 3 prohibits the taking of action "within intent to coerce" another (for example) not to exercise a "workplace right". 51 Of present relevance is the legislative focus of Div 3 of Pt 3-1 upon the protection of "Workplace rights". 52 The focus of Div 4 within Pt 3-1 is very different. The focus of that Division is upon the protection of "Industrial activities". Within Div 4, s 346 provides as follows: Protection A person must not take adverse action against another person because the other person: (a) is or is not, or was or was not, an officer or member of an industrial association; or (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or (c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g). … The protections embraced by s 346 thus focus upon a person engaging or not engaging in "industrial activity". Section 347 thus assumes central importance and provides as follows: Meaning of engages in industrial activity A person engages in industrial activity if the person: (a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or (b) does, or does not: (i) become involved in establishing an industrial association; or (ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or (iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or (iv) comply with a lawful request made by, or requirement of, an industrial association; or (v) represent or advance the views, claims or interests of an industrial association; or (vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or (vii) seek to be represented by an industrial association; or (c) organises or promotes an unlawful activity for, or on behalf of, an industrial association; or (d) encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or (e) complies with an unlawful request made by, or requirement of, an industrial association; or (f) takes part in industrial action; or (g) makes a payment: (i) that, because of Division 9 of Part 3-3 (which deals with payments relating to periods of industrial action), an employer must not pay; or (ii) to which an employee is not entitled because of that Division. It is s 348, a section also within Div 4, which proscribes "coercion". That section provides as follows: Coercion A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity. … Sections 346 and 348 are civil remedy provisions.
Section 347(b)(iv) - a request made by, or requirement of, an industrial association 53 At the heart of the present dispute is the correct meaning to be given to s 347(b)(iv). Although that is the provision of immediate relevance, it is a provision which is to be construed most immediately by reference to Pt 3-1 of the Fair Work Act and (more generally) by reference to the Act as a whole. 54 There are potentially two different interpretations. On one construction: the "request" or "requirement" to which reference is made in s 347(b)(iv) is confined to a "request made by, or requirement of, an industrial association directed to another person as a condition of their participation in the activities of the industrial association". The competing construction is that: section 347(b)(iv) is not confined to matters of participation in the affairs of the requesting industrial association and extends to the making of "request" or "requirement" of the kind made by or on behalf of the CFMEU of BPM. If the former construction prevails, s 347(b)(iv) would have no application to the circumstances of the present case. 55 The former construction is the one "preferred" by the primary Judge, albeit a construction which his Honour concluded was not open to him by reason of the decision of Jessup J in Esso Australia Pty Ltd v Australian Workers' Union [2015] FCA 758, (2015) 253 IR 304 ("Esso Australia"). The primary Judge relevantly concluded that the Esso Australia decision was not "plainly wrong" and should, accordingly, be followed: [2018] FCA 83 at [32] and [85]. The decision of Jessup J in Esso Australia, it should be noted, was the subject of an appeal to the Full Court (Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72, (2016) 245 FCR 39) and the subject of an application for special leave to appeal to the High Court (Esso Australia Pty Ltd v The Australian Workers' Union [2017] HCA 54, (2017) 263 CLR 551). 56 In Esso Australia one of the issues to be resolved was whether the Union had contravened s 346. The allegation was that the Union had taken "adverse action" by reason of requesting Esso to make an enterprise agreement. The making of that request was said to fall within s 347(b)(iv). Jessup J accepted that the Union had contravened s 346, thereby accepting that s 347(b)(iv) extended to the making of a request by an industrial association against an employer and not confined to the protection of a person's freedom of association and participation or non-participation in the activities of the union. In so concluding, Jessup J said: [197] It was submitted on behalf of the respondent that s 347(b)(iv) has, as a matter of construction, no application to the circumstances of the present case because the subject of making an enterprise agreement is specifically dealt with by s 341(2)(e): generalia specialibus non derogant. That provision is to be found in a different division of Pt 3-1 of the FW Act, one dealing with the subject "workplace rights". I shall deal with it in connection with s 340 below. Here it is sufficient to say that making an enterprise agreement is a member of a class of activities the ability to undertake which amounts to a "workplace right" under s 341 and attracts the protection of s 340. [198] Prior to the enactment of the FW Act, provisions that bear some resemblance to those of Divs 3 and 4 of Pt 3-1 of that Act were to be found in Divs 4 and 6 of Pt 16 of the WR Act. But the provisions were subject to wholesale recasting in the FW Act, as a matter both of drafting and of content. Generally, the protections are now much broader - in scope and in the generality of the terms in which they are expressed - than they were. The prohibitions in the WR Act tended to be organised by reference, as it were, to who did what and to whom. In a situation analogous to the facts of the present case, for example, s 796 dealt with the subject, "industrial associations acting against employers". But neither this provision nor any other in Divs 4 or 6 of Pt 16 of the WR Act made it unlawful for such an association to take action against an employer on account of the latter being able to make, or proposing to make, a workplace agreement (see now s 341(2)(e) of the FW Act). His Honour concluded: [199] More directly to the point of the respondent's present submission, there was, in the WR Act, nothing which provided any protection for an employer engaging in industrial activities. In this respect, ss 346 and 347 of the FW Act must be regarded as substantive instruments of law reform. Through the operation of s 347(b)(iv), it is now recognised that any person may "[engage] in industrial activity" if he or she does not comply with a request made by, or with a requirement of, an industrial association. In particular situations, there may be an area of overlap as between this provision and s 341(2)(e), but each, in my view, is a substantive provision to which effect must be given. I can see no sign of any legislative intention that, as a matter of construction, s 347(b)(iv) was to have no operation where the request or requirement was to make an enterprise agreement, at all or on particular terms. [200] It follows that, by organising the bans on air freeing and leak testing from 4 to 7 March 2015, by organising the bans on bleeder valve manipulations on and from 7 March 2015 and by organising the other industrial action referred to in [153] above on and after 7 March 2015, the respondent contravened s 346(b) of the FW Act. 57 This approach to the construction of s 347(b)(iv) was adhered to by his Honour in Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union (The Australian Paper Case) [2017] FCA 167 (the "Australian Paper Case"). One of the matters which his Honour considered weighed in favour of the broader reach of s 347(b)(iv) was what his Honour considered to be the "literal, grammatical reading" of the provision. His Honour thus reasoned (in part) as follows: [188] … this is not a case in which the intention of the legislature, differing from the literal, grammatical reading of the provision in question, is self-evident. Save to say that Div 4 was limited to "protections to a person's freedom of association and participation or non-participation in the activities of industrial associations", and to submit that nothing in the facts of the present case engaged s 347(b)(iv) as properly construed, counsel was unable to articulate how this subparagraph should be limited. When I put to him the case of a shop steward complying with a request by another industrial association (ie not the one of which he or she was a member) to convene a meeting of all workers at lunch time (ie not involving any stoppage of work), counsel was forced to concede that that would not be industrial activity within the meaning of s 347(b)(iv) and, if the shop steward were dismissed for having done so, that would not amount to a contravention of s 346 on the part of the employer. [189] It is, I accept, possible that the drafter of s 347 understood that he or she was engaged in the task of setting out instances of conduct by way of participation in the affairs of industrial associations. It is possible that he or she did not realise what was the potential reach of para (b)(iv), if read and applied literally. But what the drafter had in mind, subjectively, is not the point: …. The point is the intention of the legislature to be discerned in the words used, having regard to history, background and context, and to such materials as are properly available conformably with s 15AB of the AI Act. (citations omitted). In Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2017] FCA 168 at [168], (2017) 268 IR 178 at 209, his Honour Justice Jessup again adhered to his previously expressed views in Esso Australia. 58 It was this construction of s 347(b)(iv) which the primary Judge in the present proceeding accepted was not "plainly wrong". It may nevertheless be noted that a number of other Judges of this Court have similarly concluded that the decision of Jessup J in Esso was not "plainly wrong" and should, accordingly, be followed: e.g., Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Syme Library Case) [2018] FCA 1142 at [420] per Tracey J; Australian Building and Construction Commissioner v McDermott (No 2) [2018] FCA 1611 at [125] to [128] per Charlesworth J ("McDermott"). Relevantly for present purposes, however, in none of those cases was the correct construction to be given to s 347(b)(iv) canvassed or exposed to the detailed competing arguments now advanced before this Court. In, for example, the Syme Library Case, Tracey J referred to the decision of Jessup J and other decisions and simply concluded that "[c]onsistently with these cases [his Honour did] not consider that s 347(b)(iv) is confined to requests which have the purpose of protecting and promoting freedom of association…". And in McDermott, Charlesworth J noted the judgment of the primary Judge in the present proceeding and the disagreement expressed with Jessup J's construction of s 347(b)(iv) but, like his Honour, Charlesworth J "proceed[ed[ on the basis that a lawful request made by the Union that Sun make improvements to the amenities on the site would constitute a lawful request of an industrial association for the purposes of s 347(1)(b)(iv) of the FW Act and that, by complying with the request, Sun would engage in 'an industrial activity' for the purposes of s 348": [2018] FCA at [128]. Nor was the construction of s 347(b)(iv) in issue in either of the two decisions of the Full Court of this Court relied upon by Senior Counsel for the Commissioner: i.e., Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53, (2017) 249 FCR 458; Australian Building and Construction Commissioner v Molina [2020] FCAFC 97, (2020) 295 IR 414. 59 In the present proceeding, and in concluding that the decision of Jessup J was not "plainly wrong", the primary Judge nevertheless also made readily apparent that this was not his "preferred view". It does a considerable disservice to the careful reasoning of the primary Judge to extract but part of his Honour's reasoning for reaching the conclusion that - but for the decision in Esso Australia and the Australian Paper Case - the "preferred" construction of s 347(b)(iv) would be to confine its application to the right to "engage in industrial activity". A principal part of that reasoning, however, are the following observations made by his Honour immediately after referring to s 348: [42] The structure of s 346 is mirrored by s 340 and also s 351. Each of those provisions also prohibit the taking of adverse action against a person and, in each case, that prohibition is limited to the taking of such action for a specified reason identified by the FW Act. In the case of s 340, the reason must be the holding (or not), the exercise (or not), or the proposed exercise (or not) of a "workplace right", the meaning of which is given in s 341. In the case of s 351 which is headed "Discrimination", the reason must be the attributes of race, colour, sex, etc as listed by that provision. Additionally, s 343 addresses coercion in a similar way to s 348 but is directed to protecting the "workplace rights" attributes specified by s 341. [43] What is apparent is that the FW Act is particular as to what attributes or activities are to be protected from adverse action or coercion. It is not the holding of or engagement in any attribute or activity that is protected but only those specified by the Act. [44] If s 347(b)(iv) is read literally, the attribute or activity the subject of protection is not specific but absurdly broad. An industrial association can make a lawful request about matters which have no material connection to workplace relations at all. It may be safely assumed that the FW Act does not intend to provide protection to attributes or activities which fall outside of its subject of workplace relations. It is necessary to identify the underlying subject within the realm of workplace relations at which s 347(b)(iv) is directed. This is a case where the objective discernment of statutory purpose is integral to contextual construction. Concurrence is expressed with that reasoning of the primary Judge. Indeed, concurrence is also expressed with the balance of his Honour's reasoning in support of what his Honour referred to as the "preferred" view. It serves little purpose to attempt to rephrase reasoning which the primary Judge, with respect, has so cogently expressed. 60 Albeit expressing that reasoning in but a different manner, a few further observations can (perhaps) usefully be made. 61 First, it is respectfully considered to be a mistake to conclude that the "preferred" view as to the correct construction of s 347(b)(iv) involves any "reading down" of that provision or involves the "reading into" that section of words which are not there. Although the Commissioner contended that such was the argument being advanced on behalf of the Union, it may be noted at the outset that the words which the Commissioner contended the Union wanted "read into" the provision were nevertheless not expressed anywhere in his written outlines of submissions. But that criticism can be left to one side. Those words must necessarily have been words to the effect of "a lawful request, other than a request made of an employer…". 62 When confronted with an argument that involves reading words into a legislative provision, it is well recognised that "courts should be hesitant to do" so (The Queen v Holliday [2017] HCA 35 at [83], (2017) 260 CLR 650 at 674 per Nettle J) and that it "is no function of the courts to fill in gaps in legislation" (Minogue v Victoria [2018] HCA 27 at [43], (2018) 264 CLR 252 at 269 per Kiefel CJ, Bell, Keane, Nettle and Edelman JJ). But it is an entirely different course of reasoning to construe a legislative phrase by reference to the context in which that phrase appears and to read that phrase in a manner which gives effect to its presumed legislative object and purpose: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69], (1998) 194 CLR 355 at 381 per McHugh, Gummow, Kirby and Hayne JJ. 63 Rather than "reading into" the section words which are not there, the "preferred view" is respectfully considered to be a construction of s 347(b)(iv) which follows from the natural and ordinary meaning of the words employed in that provision, albeit a meaning derived from the legislative context in which they appear. The case for the Union, it is respectfully considered, involves no "reading into" that provision of any additional words, but rather simply involves giving effect to the terms employed in the context in which they appear. 64 Divorced from context, a literal construction of the phrase "request made by, or requirement of" would give the provision a potential width of application that could never have been within the contemplation of the Commonwealth Legislature. The phrase, upon a literal meaning, would be applicable to any "request" or "requirement" of whatsoever kind made by a union and a "request" or "requirement" having no relevance to any aspect of the activities of the union or the employer. So much was recognised by the primary Judge: [2018] FCA 83 at [44]. 65 As with any question of statutory construction, it is the context in which s 347(b)(iv) appears which dictates its more confined and natural meaning. The "preferred view" advanced by the primary Judge both avoids giving to the phrase a construction having no relevance to any industrial activity being undertaken, and a construction which best promotes the object and purpose of s 347 itself and Pt 3-1 more generally. It is a view which sits comfortably with a principal purpose of ss 346 and 347, namely the "protection" of the right to participate as a member of an industrial association. 66 Upon this preferred construction, and when read in the context of Div 4 to Pt 3-1, s 347(b)(iv) would embrace (for example) a "request" or "requirement" made of a person as a condition of their participation in the activities of an industrial association but would not embrace a "request" or "requirement" made by a union of an employer. The immediate context in which s 347(b)(iv) appears is the context of Div 4, namely "Industrial activities" and the "protection" afforded by s 346. It is the contrary approach of the Commissioner, with respect, which may require the "reading into" s 347(b)(iv) words such as "a request, including a request made by a union of an employer". 67 Second, albeit a matter inextricably linked with the first consideration and further recognising that s 347 is found within Div 4, both that section and that Division are to be construed by reference to (inter alia) the "objects" of Pt 3-1 as set forth in s 336 and, in particular, the "objects" in s 336(1)(b) of: protecting "freedom of association"; and the freedom "to participate, or not to participate, in lawful industrial activities". The reference to "industrial activities" there referred to is that which is more specifically addressed in Div 4 and defined in s 347. It is to be noted that s 347(a) defines engaging in "industrial activity" as including the conduct of a person becoming (or not becoming) a "member of an industrial association". And, of most immediate relevance is the fact that s 347(b) is similarly directed to conduct described by reference to (for example) "establishing an industrial association" (s 347(b)(i)) or participating in "a lawful activity organised or promoted by an industrial association" (s 347(b)(iii)). According to its terms, the subject-matter of s 347(b) is what may loosely be described as the freedom of persons to participate in the activities of an industrial association. The "freedom of association" to which s 336(b) refers is given content by s 347(b)(i) to (iii). Whatever limited ambiguity may arise by reason of s 347(b)(iv) not specifying the person to whom a "request" may be made is answered by reference to the character of the remaining conduct identified in s 347(b). The fact that all conduct identified in s 347(b) is directed to the freedom of persons to join in or participate in the affairs of an industrial association is only emphasised if reference is made to s 347(b)(vi) and (vii) and the reference in those provisions to the payment of "a fee" by a person to an industrial association or someone in lieu and the freedom "to be represented by an industrial association". 68 Although it may be accepted that recourse may be had to the Explanatory Memorandum as an aid in the construction of Pt 3-1, the conclusion which has been reached as to the meaning to be given to s 347(b)(iv) is largely a meaning dictated by Pt 3-1, the separate legislative consideration given to each of those matters separately addressed in that Division and the terms of s 347 itself. Notwithstanding the prospect that there may be legitimate room for argument as to the support which may be gleaned from that Memorandum in support of the competing constructions to be given to s 347(b)(iv), it is respectfully considered that that Memorandum on balance more supports the "preferred view" of the primary Judge rather than the construction now being urged upon this Court by the Commissioner. But, and as noted by White J (at paras [157] to [159]), although the reference in para [1416] of the Explanatory Memorandum to "participation protections" supports the "preferred view", the contrary construction gains some support from the example provided in the same paragraph to an independent contractor being protected "from action taken by an industrial association with intent to coerce the contractor…". If recourse is to be had to the Explanatory Memorandum, albeit unnecessary to do so here, that Memorandum on balance supports the "preferred view". 69 Little assistance, it is similarly concluded, may be gleaned from the legislative background out of which s 347 specifically and Div 4 of Pt 3-1 emerged. Although it has been suggested that s 793(1)(o) of the now-repealed Workplace Relations Act 1996 (Cth) was some loose counterpart to the present s 347(b)(i) to (v), the fact is that Div 4 to Pt 3-1 of the Fair Work Act effects such a significant departure from any predecessor provision that it demands to be construed afresh. 70 Third, and again as pointed out by the primary Judge ([2018] FCA 83 at [67] to [73]), "coercion" is prohibited both in respect to the exercise of a "workplace right" (s 343) and in respect to engaging in "industrial activity" (s 348). The former provision appears in Div 3 of Pt 3-1; the latter provision appears in Div 4. But there is a difference in the two provisions. Section 343 provides as follows: Coercion (1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or (b) exercise, or propose to exercise, a workplace right in a particular way. (2) Subsection (1) does not apply to protected industrial action. Other than s 343 being directed to the exercise of a "workplace right" (namely the subject matter of Div 3) and s 348 being directed to engaging in "industrial activity" (namely the subject matter of Div 4), the difference between the two provisions of present relevance is that there is no counterpart to s 343(2) in s 348. 71 "Protected industrial action" is addressed in s 408 in Div 2 to Pt 3-3 of the Fair Work Act. Within that Division it is made clear (for example) that the refusal of a claim or demand that an enterprise agreement be made is a protected activity: s 409. If a case were to be brought of coercion pursuant to s 343(1) by reason of a proposal (s 340(1)(a)(iii)) to exercise a "workplace right" of entering into an enterprise agreement (s 341(1)), s 343(2) would provide a defence. But there would be no such defence if s 347(b)(iv) were to be construed as applying to a similar request made pursuant to s 348. Such an inconsistency in result tells against construing s 347(b)(iv) as applying to claims made by a union upon an employer, such as the making of the request made by, or the requirement of, Mr Benstead in the present case. The inconsistency is avoided if s 347(b)(iv) is confined in its application to matters of participation in the affairs of the requesting industrial association. To put the matter "squarely" - as recognised by the primary Judge - "there must have been no appreciation that a failure to accede to a lawful request or requirement made by an industrial association to make an enterprise agreement could engage s 348": [2018] FCA 83 at [73]. 72 It follows that the construction given to s 347(b)(iv) by Jessup J in Esso should now be departed from.
CONCLUSIONS 73 Concurrence is expressed with the reasons of the primary Judge in respect to what he characterised as the "preferred" construction to be given to s 347(b)(iv). Little purpose is served by rephrasing the carefully drafted and elegant reasoning of his Honour. 74 In essence, s 347(b)(iv) should be confined in its interpretation and application to protecting a person's freedom of association and participation or non-participation in the activities of industrial associations, and should not be extended to conduct in circumstances where a union makes a request of, or a requirement of, an employer. Such a conclusion, it is respectfully concluded, follows in particular from: the structure of Pt 3-1 of the Fair Work Act and, in particular, the separate focus of attention in Div 3 of Pt 3-1 to the protection of "workplace rights" and the separate focus of attention in Div 4 of that Part to the protection of "Industrial activities"; the natural and ordinary meaning of the words employed in s 347(b)(iv) - that meaning deriving its content (in particular) from the Division in which it appears, namely "Industrial activities"; the "objects" of Pt 3-1 as set forth in s 336 and the reference in s 336(1)(b) to "industrial activities" being read consistently with the "industrial activities" as addressed in Div 4; and the need to construe the Fair Work Act in a consistent manner such that (for example) the "protection" afforded to conduct under one provision is not rendered nugatory by rendering the same conduct which may be "protected" under another provision (e.g., s 343(2)) or unlawful under another (e.g., s 347(b)(iv)). I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Flick.
WHITE J: 75 By s 346(b) of the Fair Work Act 2009 (Cth) (the FW Act), a person must not take "adverse action" against another person because, amongst other things, that person engages, or has at any time engaged, in "industrial activity" within the meaning of s 347(a) or (b). 76 By s 348 of the FW Act, a person must not, amongst other things, organise or take any action against another person with intent to coerce the other person, or a third person, "to engage in industrial activity". 77 By s 347(b)(iv) of the FW Act, a person "engages in industrial activity" for the purposes of ss 346 and 348 if (relevantly) the person does, or does not, "comply with a lawful request made by, or requirement of, an industrial association". 78 The principal question on this appeal is whether, when a head contractor fails to comply with the request of an industrial association that it provide additional amenities for workers on a building site, it "engages in industrial activity" within the meaning of s 347(b)(iv). The answer to that question turns on whether the unlawful requests or requirements to which s 347(b)(iv) refers are confined, as the appellants contend, to requests or requirements made by an industrial association of another person to participate in the activities of the industrial association. 79 As will be seen, I consider that the principal question should be resolved adversely to the appellants. However, they should succeed on a second ground, namely, that they had not engaged in a relevant form of "adverse action" so as to give rise to a contravention of s 346(b). 80 There are other issues raised by the appellants' appeal, and by the cross-appeal and notice of contention of the respondent (the Commissioner) and by an application by the Commissioner to amend the notice of contention, but the identification of those issues can be deferred.
Factual setting 81 In April 2015, Tarastar Pty Ltd, trading as BPM Built (BPM), was the head contractor engaged in the construction of an apartment building on a property in Bay Street, Brighton in Melbourne (the Site). BPM engaged Straight Line Excavations Pty Ltd (SL Excavations) to undertake work on the Site, including piling, excavation and steel fixing. SL Excavations engaged its own employees to perform the work as well as some independent contractors, including Wagstaff Piling Pty Ltd (Wagstaff). At the times relevant to this litigation, Wagstaff was on the Site performing the piling work required in the early stages of the project. 82 On Monday, 20 April 2015, the second and third appellants (Mr Long and Mr Benstead) attended the Site. Each was an officer and an employee of the first appellant (then known as the Construction, Forestry, Mining and Energy Union but now as the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU)). Both Mr Long and Mr Benstead were acting in the course of their respective employments with the CFMMEU. Apart from introducing themselves to Mr Finney, the Senior Site Supervisor for BPM, nothing else of note for the purposes of the present appeal occurred on that day. 83 On the following day, 21 April 2015, Mr Benstead returned to the Site and spoke to Mr Finney, then to the Wagstaff workers and then again to Mr Finney. During the latter discussion, Mr Benstead said to Mr Finney words to the effect "your amenities aren't big enough". Mr Finney denied that that was so. Mr Benstead said that the female worker on the Site should have a dedicated female toilet. Mr Finney explained to Mr Benstead that arrangements had been made, in consultation with WorkSafe and with the female worker, for her to use the existing toilets on Site. Mr Benstead then asked Mr Finney why BPM had not signed an enterprise bargaining agreement (an EBA). He also asked Mr Finney for the phone number of BPM's Construction Director. Mr Finney told him to call the BPM head office. 84 Later that afternoon, Mr Benstead had a telephone discussion with Mr Skurrie, BPM's Construction Manager. Mr Benstead told Mr Skurrie that there were "a few problems" at the Site and requested a meeting. He identified two problems: There is no ladies' toilet for the lady that's on site and the sheds aren't big enough. Mr Skurrie explained the arrangement which had been made for the female worker to use the existing toilets but said "I'll speak to Rob and get a separate toilet sorted out for her". Mr Skurrie also explained that the amenities shed could accommodate 18 workers and there were only 16 workers on the Site at that time. Some further discussion then occurred about BPM having an EBA. 85 BPM did not make any change on 21 April 2015 to the amenities on Site. 86 On the next day, 22 April 2015, both Mr Long and Mr Benstead attended the Site and held discussions with workers. Initially, Mr Finney had resisted Mr Long and Mr Benstead coming onto the Site to hold discussions without "the correct paperwork and notice" but ultimately he had relented. Following the meeting with the workers, Mr Long told Mr Finney that he was "sending the boys home because the amenities aren't up to standard". Neither Mr Long nor Mr Benstead responded to Mr Finney's protest that the sheds were large enough to accommodate all 16 workers on Site. 87 The Wagstaff workers walked off the Site on 22 April 2015 between 1 and 1.30 pm instead of completing work at the usual finishing time of 5.30 pm. 88 On the afternoon of 22 April 2015, after the stoppage, Mr Finney ordered an additional Site shed and a portable toilet to be delivered to the Site immediately. These were installed before 23 April 2015. 89 On 23 April 2015, Mr Benstead attended the Site alone. Mr Finney pointed out the expanded amenities to which Mr Benstead replied, "I got you all wrong, maybe you guys aren't cowboys after all". He then left the Site and the workers attended and worked as scheduled.
Statutory provisions 90 Sections 346 and 348 are located in Div 4 of Pt 3-1 of the FW Act, which has the heading "Industrial activities". Section 346 provides: 346 Protection A person must not take adverse action against another person because the other person: (a) is or is not, or was or was not, an officer or member of an industrial association; or (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or (c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g). Note: This section is a civil remedy provision (see Part 4-1). 91 The term "adverse action" appearing in s 346 is defined in s 342. It provides (relevantly): 342 Meaning of adverse action (1) The following table sets out circumstances in which a person takes adverse action against another person. Meaning of adverse action Item Column 1 Column 2 Adverse action is taken by ... if ... … 7 an industrial association, or an officer or member of an industrial association, against a person the industrial association, or the officer or member of the industrial association: (a) organises or takes industrial action against the person; or (b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person's employment or prospective employment; or (c) if the person is an independent contractor - takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or …
… 92 Section 19 of the FW Act will be set out later in these reasons but I note presently that the term "industrial action" appearing in Item 7(a) is defined to include bans, limitations and restrictions on the performance of work, and the failure or refusal by employees to attend or perform work. 93 By s 342(2), "adverse action" includes organising action covered by the table in subs (1). 94 Section 348 of the FW Act provides: 348 Coercion A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity. Note: This section is a civil remedy provision (see Part 4-1). 95 Section 347 identifies when a person "engages in industrial activity" for the purpose of these provisions: 347 Meaning of engages in industrial activity A person engages in industrial activity if the person: (a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or (b) does, or does not: (i) become involved in establishing an industrial association; or (ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or (iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or (iv) comply with a lawful request made by, or requirement of, an industrial association; or (v) represent or advance the views, claims or interests of an industrial association; or (vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or (vii) seek to be represented by an industrial association; or (c) organises or promotes an unlawful activity for, or on behalf of, an industrial association; or (d) encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or (e) complies with an unlawful request made by, or requirement of, an industrial association; or (f) takes part in industrial action; or (g) makes a payment: (i) that, because of Division 9 of Part 3-3 (which deals with payments relating to periods of industrial action), an employer must not pay; or (ii) to which an employee is not entitled because of that Division.
Further background 96 The Commissioner alleged that Mr Long and Mr Benstead each contravened s 346 by organising industrial action against BPM (being the stoppage of work on 22 April 2015) because it had engaged in industrial activity within the meaning of s 347(b)(iv) (by not complying with the lawful request of the CFMMEU that it provide additional amenities on the Site) and within the meaning of s 347(b)(v) (by not advancing the views, claims or interests of the CFMMEU). 97 Likewise, the Commissioner alleged that Mr Long and Mr Benstead had each contravened s 348 by organising action against BPM (being the stoppage of work) with the intention of coercing it to engage in industrial activity within the meaning of s 347(b)(iv) and (v), that is, to comply with the CFMMEU's lawful request that it provide additional amenities on the Site and to advance, the views, claims or interests of the CFMMEU. 98 Relying on ss 363(1)(b) and (3) and 793 of the FW Act, the Commissioner alleged that the conduct and states of mind of Mr Long and Mr Benstead were each to be taken as the conduct and state of mind of the CFMMEU, so that it too had contravened ss 346 and 348. 99 In addition to declaratory relief, the Commissioner sought the imposition of civil penalties on each of the CFMMEU, Mr Long and Benstead. 100 The CFMMEU, Mr Long and Mr Benstead admitted the conduct summarised earlier in these reasons but denied that that conduct gave rise to the contraventions alleged by the Commissioner. They contended that Div 4 of Pt 3-1 of the FW Act (in which ss 346 and 348 are located) is concerned only with the protection of a person's freedom of association and with participation or non-participation in the activities of industrial associations, and not with industrial action in support of claims for improved working conditions made by industrial associations against employers. 101 The lawfulness of the request or requirement made by Mr Long and Mr Benstead of BPM does not appear to have been in issue at the trial. 102 The primary Judge conducted the trial in two stages, addressing the issues of liability in the first and the issues of the relief to which the Commissioner was entitled in the second. 103 At the conclusion of the first stage, the Judge found that contraventions of ss 346 and 348 were established: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83 (the Liability Judgment). His Honour made an extensive review of the text, context, and legislative history of s 347(b)(iv) and concluded: [66] The context, the consequences of a literal construction, and the evident purpose of s 347(b)(iv) require the reference made to "a lawful request … or requirement" to be read as referring to a lawful request or requirement to associate in or with the industrial association. So construed, s 347(b)(iv) sits conformably with paragraphs (i), (ii), (iii) and (v) of s 347(b) as one of several categories of participatory activities taken or refused to be taken in common cause with an industrial association which have been designated as protected attributes to "protect freedom of association by ensuring that persons are … free to participate, or not participate, in lawful industrial activities": s 336(1)(b)(iii). 104 Earlier, the Judge said that he did not consider that the structure of the FW Act provided any support for the view that the subject matter of s 347(b)(iv) extends beyond "freedom of association and in particular the freedom of persons to participate or not participate in the lawful activities of an industrial association", at [49]. In consequence, the Judge considered that s 347(b)(iv) does not encompass a refusal by an employer to concede a claim made by a union for improved terms and conditions of employment, at [67]. 105 Had the Judge regarded himself able to give effect to that view, he would have dismissed the Commissioner's claim based on s 347(b)(iv). However, his Honour accepted that, in each of Esso Australia Pty Ltd v The Australian Workers' Union [2015] FCA 758; (2015) 253 IR 304 (Esso v AWU) and Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union (The Australian Paper Case) [2017] FCA 167, Jessup J had found that s 347(b)(iv) extends to lawful requests or directions of an industrial association which are unrelated to matters concerning freedom of association. The Judge considered that these decisions could not be distinguished and should be followed because they could not be regarded as plainly wrong. 106 The Judge dismissed the Commissioner's claims based on s 347(b)(v). 107 After hearing submissions on penalty, the Judge issued declarations as to the contraventions and imposed penalties of $6,000 and $6,500 on Mr Long and Mr Benstead respectively in respect of their contraventions of s 348 of the FW Act: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 (the Penalty Judgment). His Honour regarded the conduct of Mr Long and Mr Benstead as giving rise to a single contravention by the CFMMEU and imposed a penalty of $38,000 in respect of its contravention of s 348. The Judge also made non-indemnification payment orders in the case of the penalties imposed on Mr Long and Mr Benstead. By reason of s 556 of the FW Act, the Commissioner did not seek a separate penalty in respect of the contraventions of s 346. 108 In the reasons which follow, the references to the reasons of the primary Judge are, unless otherwise indicated, to paragraphs in the Liability Judgment.
The appeal and cross-appeal 109 Although the Notice of Appeal contains eight grounds, they are in effect three. By the first, the appellants contend that the Judge's preferred construction of s 347(b)(iv) is the correct construction and that that adopted by Jessup J in Esso v AWU and The Australian Paper Case should be rejected. They repeated their contention that, properly construed, s 347(b)(iv) is concerned with requests or requirements of an industrial association for participation in its activities and is part of the protection of freedom of association for which the FW Act provides; that it does not extend to requests or requirements made by unions of employers which concern conditions of work; and, accordingly, that it did not encompass the requirement of Mr Benstead and Mr Long that BPM install additional amenities on the Site. 110 By their second ground of appeal, the appellants contend that the Judge should not have found that they had organised industrial action against BPM, given that none of the industrial action in question had been taken by employees of BPM. By the third, the appellants contend that the Judge had erred in finding that their conduct was unlawful. This complaint turns, in part, on a pleading point. 111 By his cross-appeal, the Commissioner contends that, by reason of the separate contraventions of Mr Long and Mr Benstead and the operation of ss 363 and/or s 793 of the FW Act, the Judge should have found that the CFMMEU had committed two contraventions of each of ss 346 and 348 and not a single contravention of each. 112 The Commissioner's second notice of contention does not impugn the Judge's rejection of his claim based on s 347(b)(v). Instead the Commissioner contends that, if the appellants' second ground of appeal as described above succeeds, the judgment could be supported by s 342(1), Item 7(c) and that a finding of coercion in contravention of s 348 should, for that independent reason, have been made. Shortly before the hearing, the Commissioner sought leave to amend the second notice of contention to raise a new ground. It is convenient to defer reference to the Commissioner's application until later in these reasons. 113 Both parties provided comprehensive written submissions. That being so, the parties agreed that an oral hearing on the appeal was not required and that the Court should determine the appeal on the basis of those submissions.
Grounds 1-3 - the lawful request or requirement 114 The appellants contended that, on its proper construction, s 347(b)(iv) applies only to lawful requests or requirements made by an industrial association to participate in the activities of the industrial association. 115 It was common ground that the resolution of these grounds is a matter of statutory construction. As there can be only one proper construction of s 347(b)(iv), it would be sufficient for these grounds to succeed if the Court is satisfied that the construction preferred by the Judge is correct: Branir Pty Ltd v Owston Nominees (No 2 ) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [25].
The approach to statutory construction 116 The submissions of both parties emphasised statements of the High Court and of this Court as to the proper approach to be applied to that task. The relevant principles are well settled. 117 The task of statutory construction requires the Court to determine and give effect to the intention of Parliament as disclosed by the language used in the statute: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [25]-[26]. The starting point is the text of the statute whilst, at the same time, having regard to its context and purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41, (2009) 239 CLR 27 at [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, (2017) 262 CLR 362 at [14]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355 at [69]. With respect to purpose, the Judge referred to Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 in which the High Court said: [23] Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that "the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated …) is to be preferred to each other interpretation" is in that respect a particular statutory reflection of a general systemic principle … 118 Context is to be considered at the first stage of the task, not after some ambiguity or uncertainty has been identified: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. This does not deny the importance of the natural and ordinary meaning of the text in the process of construction: the consideration of context and purpose is a recognition that, understood in its statutory, historical or other context, a meaning of a word other than its natural and ordinary meaning may be appropriate: SZTAL at [14]. 119 The context of a statutory provision includes a diverse range of matters including the surrounding provisions, the statute as a whole, the existing state of the law, the purpose of the provision, matters of legislative history, and extrinsic material including, when applicable, the reports of law reform bodies: CIC Insurance at 408; Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39]. 120 It has been said that "it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction": Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [33], but see the dissenting judgment of Gageler J in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 at [66]-[67] in relation to this passage. The approach stated in Saeed means that the text of the provision in question and its immediate context as found in the statute should be examined first. When that is done, regard may be had to extrinsic materials to confirm that the meaning of the provision is the ordinary meaning conveyed by its text taking into account its context in the Act in question and the purpose or object underlying the Act: Acts Interpretation Act 1901 (Cth), s 15AB(1)(a). If there is ambiguity or obscurity, or if the ordinary meaning conveyed by the text would lead to manifestly absurd or unreasonable results, regard may be had to extrinsic materials to determine the true meaning of the provision: s 15AB(1)(b). 121 For this reason, and like the primary Judge at [51], I do not share the doubts expressed by Jessup J in The Australian Paper Case concerning the entitlement of this Court under s 15AB(1) of the Acts Interpretation Act to have regard to the Explanatory Memorandum provided to the Parliament insofar as it concerned the clauses which now comprise Div 4 of Pt 3-1 of the FW Act.
The text 122 Section 347 is a definitional provision, giving content to the expression "engages in industrial activity" and therefore to the prohibitions contained in ss 346, 348 and 349. 123 The potential scope of s 347(b)(iv) on its ordinary and natural meaning is undoubtedly broad. The only express limitations are that the request or requirement be made by an industrial association and that it be lawful. Subject to those limitations, the request or direction may relate to any subject matter at all and be directed to anyone. There is no limitation by reference to the intention with which the request or direction is made or to the object or purpose sought to be achieved by the industrial association in making it, let alone to the legitimacy of that object or purpose. Nor is there any express specification that the request or requirement be objectively reasonable. It may, however, be significant that the terms used are "request" and "requirement" and not "claim". It may be implicit that the request or requirement be genuine (in the sense of not being spurious). Section 338 indicates that the persons to whom s 347 refers need not be individuals. 124 The apparent width of the request or requirement to which s 347(b)(iv) may refer is underlined by the fact that, by reason of the definition of "industrial association" in s 12 of the FW Act, the industrial association making the request need not be an organisation registered under the Fair Work (Registered Organisations) Act 2009 or some cognate legislation but may be an association of employees or independent contractors formed informally, provided that one of the purposes of the association is the protection and promotion of their interests in matters concerning their employment or their interests as independent contractors, as the case may be. The activities of an association which has as only one of its purposes the protection and promotion of "industrial interests" may, self-evidently, be diverse. 125 The breadth of the conduct to which s 347(b) may, on a literal reading, refer is also evident in subparas (ii), (iii) and (v). By way of example, on a literal reading, the encouragement or participation (or non-encouragement or non-participation) in a lawful activity organised or promoted by an industrial association to which s 347(b)(iii) refers does not require that the activity be an activity of the industrial association itself: it would be sufficient if it be an activity of another person or entity which happens to be promoted by the industrial association. Likewise, the "views, claims or interests" of an industrial association to which subpara (b)(v) refers may be diverse, and have no "industrial" dimension at all. 126 The opening words in s 347(b) indicate that it is the compliance or non-compliance with the request or requirement which will constitute the engagement in industrial activities. As compliance or non-compliance are the principal available responses to a request or requirement, s 346(b) will, on its face, proscribe adverse action being against a person because of that person's response to any lawful request or direction of a registered association. 127 As the primary Judge pointed out, at [44], on its literal meaning, s 347(b)(iv) is capable of extending to the lawful requests or requirements of an industrial association about matters which have no material connection to workplace relations. 128 I also respectfully agree with the Judge that a literal reading of s 346(b) is capable of producing results which appear surprising. That is especially so given the subject matter of the FW Act generally and the inclusion of the adjective "industrial" before the word "activity". Those two matters suggest that the activity should have some form of "industrial" dimension. However, I would not go so far as the Judge in characterising the activities given protection by a literal reading of s 347(b)(iv) as "absurdly broad", at [44]. In my respectful opinion, it is realistically possible that the legislative intention is that the proscriptions in ss 346, 348 and 349 should protect all persons from adverse action by reason of having complied, or not complied, with any request or direction by an industrial association concerning any subject matter (subject only to the qualification that the request or requirement be lawful) or by reason of having represented or advanced, or not having represented or advanced, the "views, claims or interests" of an industrial association, whatever be the nature of those views, claims or interests. That is to say, it is plausible that the legislative intention is that, while voluntary freedom of association is to be recognised and protected, it is also that those who (using a general expression) engage or decline to engage with industrial associations in any of their activities are not to suffer a detriment on that account. 129 Some aspects of the context of s 347(b) to which I turn next do suggest that it is not confined to lawful requests or requirements concerning participation in the activities of industrial associations.
Context 130 A starting point is the structure of Part 3-1 of the FW Act entitled "General protections". The "General protections" for which it provides are readily identifiable in its eight Divisions. 131 Division 1, entitled "Introduction", contains in s 336 a statement of the objects of the Part: 336 Objects of this Part (1) The objects of this Part are as follows: (a) to protect workplace rights; (b) to protect freedom of association by ensuring that persons are: (i) free to become, or not become, members of industrial associations; and (ii) free to be represented, or not represented, by industrial associations; and (iii) free to participate, or not participate, in lawful industrial activities; (c) to provide protection from workplace discrimination; (d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part. (2) The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise). 132 Section 336(1)(b) replicates part of the objects of the FW Act stated at its commencement in s 3(e), namely, "enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented …". As is apparent, s 336(1)(b) states the object in general terms (protecting freedom of association) and then particular means by which that freedom is sought to be protected. 133 It is evident that Pt 3-1 is structured by reference to the objects in s 336(1). Division 2 can be put to one side as it deals with another introductory matter, namely, the constitutional application of the Part. Division 3, under the heading "Workplace rights", contains a suite of provisions directed to the protection of workplace rights (being the object in s 336(1)(a)); Div 4 under the heading "Industrial activities" contains a suite of provisions which, at least in part, has the purpose of protecting freedom of association, being the object to which s 336(1)(b) refers; Div 5 under the heading "Other protections" contains a suite of provisions directed to providing protection from workplace discrimination, being the object to which s 336(1)(c) refers; Divs 6 and 7, under the headings "Sham arrangements" and "Ancillary rules" respectively, contain additional protective provisions; and Div 8 under the heading "Compliance" provides for means of enforcement and rights of appeal, thereby giving effect to the object stated in s 336 (1)(d). 134 This structure supports the contention of the appellants that Div 4 is concerned with matters bearing on freedom of association. Some aspects of the content of Div 4 also support that view. 135 Division 4 comprises ss 346-350. Sections 346-348 have been set out earlier in these reasons. 136 Section 346(a) proscribes the taking of adverse action against another by reason of the other being, or not being, now or in the past an officer or member of an industrial association. Section 346(b) proscribes the taking of adverse action against a person because the person is engaging, has engaged, or will engage, in "industrial activity" of a particular kind (being that defined in s 347(a) and (b)). Section 346(c) proscribes the taking of adverse action against a person because the person does not engage, has not at any time engaged, or proposes not to engage, in industrial activity of a different kind, being that defined in s 347(c)-(g). Whereas s 346(a) operates with respect to a person's status, subs (b) and (c) are activity focussed. 137 Section 348 proscribes the organisation or taking of action (or threats to organise or take action) against another person with intent to coerce the other person or a third person to engage in "industrial activity". 138 Section 349(1) prohibits a person from knowingly or recklessly making a false or misleading representation about another person's obligation to engage in industrial activity or another person's obligation to disclose whether he or she, or a third person, is, or is not, an officer or member of an industrial association or is, or is not, engaging in industrial activity. Section 350 has a different operation because it prohibits an employer from inducing an employee from taking, or proposing to take "membership action", that is, becoming, or not becoming, remaining, or ceasing to remain, an officer or member of an industrial association. Plainly, both these provisions have a close relationship with the object of protecting freedom of association, although the reference in s 349 to another person's "obligation to engage in industrial activity" indicates that it may not be confined to that subject matter. 139 There are aspects of s 346 which, in conjunction with parts of s 347, can be seen to have a direct correlation with protection of freedom of association. Section 346(a) is an obvious example. The correlation between s 347(a) and the object stated in s 336(1)(b)(i) is direct: both refer to the activity of becoming or not becoming a member of an industrial association. Section 347(a) seeks the further achievement of the object by referring to a person remaining as, or ceasing to be, a member of an association and in addition by referring to the position of officers. The involvement in establishing an industrial association to which s 347(b)(i) refers is also an incident of the freedom to become a member of an industrial association (s 336(1)(b)(i)). The correlation between s 347(b)(vii) (seeking to be represented by an industrial association) and the object in s 336(1)(b)(ii) concerning representation by an industrial association is also obvious. 140 However, there are also indications that Div 4 and, in particular s 347, are not confined to participation in the affairs of industrial associations or to freedom of association more generally. The most obvious is seen in ss 347(f) and (g). The taking part in "industrial action" to which subs (f) refers (more accurately, the refusal or failure to do so) need have no connection with activities associated with freedom of association. That is so because the definition of "industrial action" in s 19 turns on the nature and effect of the action: not on the purpose for which it is undertaken. Subsection (g) (in conjunction with s 346(c)) concerns the refusal or failure to make payments relating to periods of "industrial action" which the person is, by Div 9 of Pt 3-3, prohibited from paying. That industrial action may have been undertaken for any purpose. To my mind, the presence of subs (f) and (g) in s 347 is a clear indication that the industrial activities it contemplates are not directed only to protecting participation in the activities of industrial associations. 141 The terms "lawful activity" in s 347(b)(ii) and (iii) and the counterpart term "unlawful activity" in subss (c) and (d) provide another (albeit less obvious) indication. On its face, the term "unlawful activity" is capable of encompassing any form of unlawful activity, provided only that it be organised or promoted for or on behalf of an industrial association (subs (c)) or be organised or promoted by an industrial association (subs (d)). The evident statutory purpose is to protect persons from adverse action by reason of them refusing or failing to organise, participate in, or support unlawful activities for or on behalf of an industrial association or organised by an industrial association. Given the evident protective purpose of subs (c) and (d) (in conjunction with s 346(c)), it is natural to suppose that, had the statutory intention been that only some unlawful activities would be the subject of the proscription, it would have been made clear. Not only is there no such indication, it is not readily apparent why the statutory intention would have been to confine the protection from adverse action to the refusals or failures to organise or promote only some forms of unlawful activities. 142 As indicated, subs (b)(ii) and (iii) are counter points of subss (c) and (d). If the latter provisions are not qualified by reference to the purpose for which the activity is undertaken, then it seems improbable that the former are nevertheless qualified in that way. 143 To my mind, this reasoning assists in understanding the reach of the term "lawful request … or requirement" in subs (b)(iv) and its counterpart "unlawful request … or requirement" in subs (e). If the lawful activities, or the unlawful activities, may be of any kind save only that they be organised or promoted by an industrial association, there seems little reason to understand that the lawful request or requirement to which subs (b)(iv) refers, or the unlawful request or requirement to which subs (e) refers, as confined to requests or requirements concerning some subject matters only. 144 That is especially so in an industrial context in which it has not been unknown for persons to be pressured to join an industrial association, or a particular industrial association, or to participate in particular ways in an industrial association. At least in the past, policies concerning a "closed shop" or "no ticket no start" were not uncommon, and were enforced by forms of conduct (including work stoppages and picketing directed to employers or employees who did not comply with them). Protection from those forms of that conduct would, on my understanding of the appellants' submissions, be encompassed by s 346(c) and s 347(e), but not if the very same conduct was organised by the very same industrial association but in support of a demand for improved work conditions. Yet, in each case, the effect on the person to whom the conduct is directed is the same. That being so, it is not readily apparent why the legislative intention should be that the availability of the protection should turn on the subjective purpose sought to be achieved by the industrial association in making the request or requirement. This is especially so in the absence of express words of qualification on the kinds of "lawful request … or requirement" and "unlawful request … or requirement" in subs (b)(iv) and (e) respectively. 145 The Commissioner sought to support this understanding of ss 346 and 347 by referring to the statement in s 334 (the guide to Pt 3-1) that "Division 4 protects freedom of association and involvement in lawful industrial activities" (emphasis added). He submitted that s 334 confirms that the protection of freedom of association and the protection of involvement in lawful activities, while having some overlap, are both subject matters addressed in Div 4. 146 Another matter indicating that this may be so is that the heading to Div 4 is "Industrial activities" and not, say, "Freedom of association" as was the case in the predecessor legislation, to which I shall refer shortly. 147 One matter of context which may indicate that ss 346(b) and 347(b)(iv) are not concerned with the requests or requirements of an industrial association relating to work conditions is that the subject of industrial action is dealt with elsewhere in the FW Act. Reference has already been made to Div 3 in Pt 3-1 which proscribes the taking of adverse action against another person because that person has a workplace right, has or has not exercised a workplace right, proposes to exercise a workplace right, and the taking of adverse action in order to prevent the exercise of a workplace right, as that expression is defined in s 341. Moreover, Pt 3-3 of the FW Act contains an extensive suite of provisions concerning the taking of industrial action. Those provisions indicate when lawful industrial action, referred to as "protected industrial action", may be taken (Div 2) and proscribe the taking of industrial action in other circumstances. Having addressed the subject matter in Pt 3-3, it could be thought unlikely that there was a legislative intention that ss 346(b) and 347(b)(iv) should encompass the same subject matter. 148 However, in Esso v AWU, to which I will return shortly, Jessup J, at [199], adverted to the issue of overlap in the provisions and did not regard it as telling decisively in favour of the construction then propounded by the AWU. His Honour said that he could "see no sign of any legislative intention that, as a matter of construction, s 347(b)(iv) was to have no operation where the request or requirement was to make an enterprise agreement, at all or on particular terms". On the appeal (Esso Australia Pty Ltd v Australian Workers' Union [2016] FCAFC 72; (2016) 245 FCR 39 (Esso v AWU (FC)) Buchanan J (with whom Siopis J agreed) expressed agreement with this passage in Esso v AWU, at [205]. It was not suggested that this Court should take a different view. 149 The Judge relied on a comparison of s 348 with s 343 of the FW Act as another matter of context, at [67]-[73]. Section 343 is part of Div 3 in Pt 3-1 which, as noted, is concerned with the protection of workplace rights. It provides: 343 Coercion (1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or (b) exercise, or propose to exercise, a workplace right in a particular way. Note: This subsection is a civil remedy provision (see Part 4-1). (2) Subsection (1) does not apply to protected industrial action. As is apparent, s 343(1) is a close cognate of s 348. Significantly, however, s 343(2) provides that the proscription established by s 343(1) does not apply to "protected industrial action". Section 348 does not contain a counterpart provision. 150 Part 3-3 which deals extensively with the subject matter of industrial action provides that certain forms of action will be "protected industrial action" and, therefore, not proscribed. Looked at generally, "protected industrial action" is action taken by employees or employers in support or resistance of claims during the negotiation of a proposed enterprise agreement. On the employee's side, it may include strikes, stoppages of work or other limitations of work. On the employer's side, it may include lockouts. Section 415 provides that, subject to some limited exceptions which are not presently material, no action lies under any law in relation to industrial action that is protected industrial action. If industrial action is not protected, it may attract sanctions under the FW Act or under the general law. 151 Section 343(2) seems to be an implicit acknowledgement that the conduct encompassed by s 343(1) could be understood to include forms of protected industrial action. Section 343(2) operates in that context to remove any inconsistency between permitted coercive protected industrial action, on the one hand, and the coercion proscribed by s 343, on the other. 152 None of ss 346, 348 and 349 contains a counterpart to s 343(2). The Judge reasoned, at [73], that the absence of such a counterpart is a manifestation of a legislative understanding and intention that it was unnecessary because engagement in the form of industrial activity to which Div 4 refers would not include responses to industrial claims, for example, claims for the making of an enterprise agreement or claims concerning the conditions under which work is performed, at [73]. Were it otherwise, s 348 could operate to render nugatory the forms of protected industrial action for which Pt 3-3 provides. 153 I respectfully agree that the inference drawn by the Judge is open. But there are other possible explanations: for example, an understanding that the conduct proscribed by s 343 may have a particularly close relationship with the forms of industrial action which are the subject of Pt 3-3 so as to make appropriate the inclusion of a specific saving provision. Alternatively, it may reflect an understanding that such a saving provision was unnecessary in s 348 because the specific provisions concerning protected industrial action in Pt 3-3 would prevail over the more general provisions in Div 4 of Pt 3-1. It is pertinent that s 355 is another cognate provision which does not have a counterpart to s 343(2). 154 For these reasons, and with respect, I would not attach the same degree of significance to the comparison of these provisions as did the Judge. 155 Unless it be thought that it has been overlooked, I note that in Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 34; (2017) 263 CLR 551 (Esso v AW (HCA)), the majority adverted to the potential significance of the absence in s 348 of any counterpart to s 343(2) but did not express any concluded view about it.
The Explanatory Memorandum 156 I have already indicated my agreement with the Judge that regard may appropriately be had to the relevant extracts in the Explanatory Memorandum (the EM) relating to the introduction of the Fair Work Bill in 2008. A number of passages in the EM are pertinent presently: 1338. The principal protections in Part 3-1 have been divided into protections relating to workplace rights (which can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements) and engaging in industrial activities (which encompasses the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association). … 1400. Division 4 provides protections in relation to a person's freedom of association and participation or non-participation in industrial activities. The protections in the Division revolve around the right to engage or not engage in certain industrial activities - namely, being a member or officer of an industrial association or engaging in activities of industrial associations. The Division prevents adverse action, coercion and misrepresentations in connection with these industrial activities. It also prevents inducements to be, or not be, a member of an industrial association. 1401. All of the protections relate to industrial associations. Industrial association is defined in clause 12. The definition covers unions and employer associations (whether or not registered or recognised under a law), and also covers employees and/or independent contractors who come together informally in the workplace for a purpose which includes protecting and promoting their interests in matters concerning their employment. … Clause 346 - Protection Clause 347 - Meaning of engages in industrial activity Clause 348 - Coercion Clause 349 - Misrepresentation Clause 350 - Inducements - membership action 1402. The industrial activity provisions protect: • being or not being a member or officer of an industrial association; • participation or non-participation in other lawful industrial activity; • non-participation in unlawful industrial activity. … 1414. Clauses 346, 348 and 349 likewise protect persons from adverse action, coercion and misrepresentation in relation to participation and non-participation in lawful industrial activities (the activities set out in paragraph 347(b)). 1415. Subparagraphs 347(b)(i) to (v) provide that a person engages in industrial activity if she or he does or does not: • become involved in establishing an industrial association (subparagraph 347(b)(i)); • organise or promote a lawful activity for, or on behalf of, an industrial association (subparagraph 347(b)(ii)); • encourage or participate in a lawful activity organised or promoted by an industrial association (subparagraph 347(b)(iii)); • comply with a lawful request made by, or requirement of, an industrial association (subparagraph 347(b)(iv)); or • represent or advance the views, claims or interests of an industrial association (subparagraph 347(b)(v)). 1416. Subparagraphs 347(b)(i) to (v) can broadly be described as 'participation protections' and cover a broad range of lawful participation activities including: • carrying out duties or exercising rights as an officer of an industrial association; and • participating in union discussions at the workplace where a union has exercised a right of entry for this purpose. The protections operate in a wide range of situations. For example: • an employee is protected from adverse action by their employer because they are involved in establishing an industrial association; • an independent contractor is protected from action taken by an industrial association with intent to coerce the contractor to comply with a direction given by the industrial association; and • a person is protected from a false or misleading representation about the obligation to pay a bargaining services fee on which the person could be expected to rely. (Emphasis added) 157 A number of matters may be noted. The first are the references indicating that, while there is an intended relationship between the freedom of association, on the one hand, and participation in lawful activities on the other, the latter is not confined by the former - see the statement in [1338] "the freedom … to participate in lawful activities, including those of an industrial association" (emphasis added). See also the reference to "engaging in activities of industrial associations" in [1400]. The second is the reference in [1400] that the protections which Div 4 was intended to provide were said to "revolve around the right to engage or not engage in certain industrial activities - namely, being a member or officer of an industrial association or engaging in activities of industrial associations". The third is the reference in [1416] to subss (b)(i)-(v) in s 347 as "participation protections" and the statement that they include carrying out duties or exercising rights as an officer of an industrial association and the participation in union discussions at the workplace when a union has exercised a right of entry for this purpose, at [1416]. The fourth is the second example in [1416] concerning the protection of an independent contractor from action by an industrial association with intent to coerce it to comply with a direction given by an industrial association. 158 These passages and, in particular the description of subparas (b)(i)-(v) as "participation protections", provide some support for the view of the Judge that s 347(b) and, relevantly, subpara (iv), are concerned in part with lawful activities which may affect the object of freedom of association. However, there is no indication that the provisions are confined to activities of that kind and the references to the "activities of industrial associations" without any accompanying qualification of the activities is a contra-indicator. 159 The third example in [1416] seems particularly pertinent presently. A requirement by an industrial association that an independent contractor, say, pay particular rates or provide particular conditions, or that it engage only union members, would seem to be encompassed by that example. It is an indication in the EM that the requests or requirements of an industrial association which it contemplated were not confined to matters concerning membership or participation in the "internal" activities of the association but may extend to demands made on third parties.
The previous decisions 160 The Commissioner placed heavy reliance on the two previous judgments concerning s 347(b)(iv) which the Judge regarded himself bound to follow. 161 In Esso v AWU, Jessup J found, at [189]-[192], that the AWU had contravened s 348 of the FW Act by organising or taking action against Esso with the intention of coercing it to engage in industrial activity as described in s 347(b)(iv), namely, to make an enterprise agreement or to make it in a particular way. His Honour also found that, by organising the industrial action by reason of Esso's non-compliance with its request that it enter into an enterprise agreement, the AWU had contravened s 346(b) of the FW Act, at [193]-[200]. In rejecting the AWU's contention that s 347(b)(iv) had no application in the circumstances, Jessup J attached particular significance to a comparison with the provisions in the Workplace Relations Act 1996 (Cth) (the WR Act): [198] Prior to the enactment of the FW Act, provisions that bear some resemblance to those of Divs 3 and 4 of Pt 3-1 of that Act were to be found in Divs 4 and 6 of Pt 16 of the WR Act. But the provisions were subject to wholesale recasting in the FW Act, as a matter both of drafting and of content. Generally, the protections are now much broader - in scope and in the generality of the terms in which they are expressed - than they were. The prohibitions in the WR Act tended to be organised by reference, as it were, to who did what and to whom. In a situation analogous to the facts of the present case, for example, s 796 dealt with the subject, "industrial associations acting against employers". But neither this provision nor any other in Divs 4 or 6 of Pt 16 of the WR Act made it unlawful for such an association to take action against an employer on account of the latter being able to make, or proposing to make, a workplace agreement (see now s 341(2)(e) of the FW Act). [199] More directly to the point of the respondent's present submission, there was, in the WR Act, nothing which provided any protection for an employer engaging in industrial activities. In this respect, ss 346 and 347 of the FW Act must be regarded as substantive instruments of law reform. Through the operation of s 347(b)(iv), it is now recognised that any person may "[engage] in industrial activity" if he or she does not comply with a request made by, or with a requirement of, an industrial association. In particular situations, there may be an area of overlap as between this provision and s 341(2)(e), but each, in my view, is a substantive provision to which effect must be given. I can see no sign of any legislative intention that, as a matter of construction, s 347(b)(iv) was to have no operation where the request or requirement was to make an enterprise agreement, at all or on particular terms. (Emphasis added) 162 The present issue of construction did not arise on the appeal in Esso v AWU (FC), (although, as already noted, Buchanan J (with whom Siopis J agreed) did endorse the reasoning of Jessup J concerning the absence of any significance in s 347(b)(iv) having an overlapping operation with other provisions, at [205]). 163 However, in Esso v AWU (HCA), the majority endorsed the view that s 347(b)(iv) encompassed non-compliance with a form of industrial demand concerning terms and conditions: [57] … For the purposes of s 348, "engage in industrial activity" is defined by s 347 to include complying with a lawful request made by an industrial association, for example, as here, a request to enter into an enterprise agreement. It is not in issue that the AWU banned the performance of equipment testing, air freeing and leak testing with intent to influence Esso to enter into a proposed enterprise agreement on terms stipulated by the AWU. (Citation omitted) 164 This endorsement is inconsistent with the construction of s 347(b)(iv) adopted by the primary Judge. 165 The construction of s 347(b)(iv) was considered again by Jessup J in The Australian Paper Case, a judgment delivered before Esso v AWU (HCA). That case concerned the question of whether three unions and their officers had contravened ss 346 and 348 (and other provisions) of the FW Act by their organisation of work stoppages in support of a demand that an employer provide a full-time first aid attendant on a construction site. The respondents contended that s 347(b)(iv) was to be read down so as to be applicable only to requests and requirements relating to the participation of members of industrial associations in the affairs of those associations, at [179]. Justice Jessup rejected that contention, relying principally on inferences to be drawn from the legislative history, from the EM, on what his Honour considered to be the clear words used in s 347(b)(iv), and by reference to certain authorities. 166 With respect to the legislative history, Jessup J said: [180] Before its repeal in 1989, it was s 5 of the Conciliation and Arbitration Act 1904 ("Cth") ("the C&A Act") which provided the kind of protection as is now the subject of Div 4 of Pt 3-1 of the FW Act. But s 5 was much more limited than Div 4 now is. By s 5(1)(e) and (f), it was an offence for an employer to dismiss an employee, to injure him in his employment or to alter his position to his prejudice, by reason of the circumstance that the employee - (e) has absented himself from work without leave if - (i) his absence was for the purpose of carrying out his duties or exercising his rights as an officer or delegate of an organization; and (ii) he applied for leave before he absented himself and leave was unreasonably refused or withheld; or (f) being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization. These provisions were repeated, with no more than minor grammatical variations, as paras (h) and (j) of s 334(1) of the Industrial Relations Act 1988 (Cth) ("the IR Act"). Despite a major legislative revision when the IR Act was re-named the Workplace Relations Act 1996 (Cth) ("the WR Act"), these provisions were, in point of substance, retained as paras (m) and (n) of s 298L of the re-named Act (albeit now referable to industrial associations generally rather than, as previously, to registered organisations). And that continued to be the situation after the next major legislative revision, that effected by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth): see paras (n) and (o) of s 793(1) of the WR Act as so amended. [181] The provisions referred to were specifically limited to conduct done as a member, or as an officer or member, of an organisation or (later) an industrial association. Section 347 of the FW Act is not so limited. It is one of a series of provisions which rely heavily on pre-existing legislation but which are, in many respects, much broader in their scope and operation. On any view, the introduction of these provisions in 2009 was a significant exercise in law reform. A notable feature of s 347 is that any person may engage in industrial activity, if the circumstances meet the terms of the section. It is only in the definition of "adverse action" in s 342 that the status of the parties involved becomes relevant. Even then, by item 7 in the table, it is adverse action to do the things referred to against a person. Further, only under para (d) of that item is the person required to be a member of the industrial association concerned. (Emphasis added) 167 With respect to the EM, Jessup J doubted his entitlement under s 15AB(1) of the Acts Interpretation Act 1901 (Cth) to have regard to it, but did so "both for the sake of completeness and because counsel for the applicant did not submit that reference could not be made to the [EM]", at [183]. The extracts of the EM to which Jessup J referred, have been set out above. 168 Justice Jessup accepted that the respondents derived some assistance from some of the passages in the EM, and in particular, from the description in [1416] of subparas (i)-(v) in s 347(b) as "participation protections", at [185]. His Honour considered nevertheless that their submission faced a number of problems: [186] The first problem, it needs hardly to be said, is that the submission flies in the face of the actual words of subpara (iv). That is not fatal to the submission, of course, since the respondents' very point is that these wide words could not have been intended to be read literally. But, if one thing is clear about the drafting of the FW Act, it is that a great deal of attention was given to its every word. It is a detailed and prescriptive piece of legislation. Further, as mentioned above, it is clear that Div 4 of Pt 3-1 departed from previous legislation, and did so as a matter of conscious policy. [187] Secondly, there are indications in the memorandum that suggest that the kind of participation in the affairs of associations for which the respondents contend was no more than an instance, or example, of what would fall within the terms of the legislation. Here I have in mind para 1338, in which it is stated that industrial activities covers "the freedom … to participate in lawful activities, including those of an industrial association" (emphasis added); the second bullet point in para 1402, which is not limited in the way for which the respondents contend; the reference in para 1416 to the protections operating in a wide range of situations; and the fourth bullet point in para 1416 - the independent contractor example - which might have application in an internal participatory context but which, in its most obvious setting, would be unlikely to do so. [188] Thirdly, this is not a case in which the intention of the legislature, differing from the literal, grammatical reading of the provision in question, is self-evident. Save to say that Div 4 was limited to "protections to a person's freedom of association and participation or non-participation in the activities of industrial associations", and to submit that nothing in the facts of the present case engaged s 347(b)(iv) as properly construed, counsel was unable to articulate how this subparagraph should be limited. When I put to him the case of a shop steward complying with a request by another industrial association (ie not the one of which he or she was a member) to convene a meeting of all workers at lunch time (ie not involving any stoppage of work), counsel was forced to concede that that would not be industrial activity within the meaning of s 347(b)(iv) and, if the shop steward were dismissed for having done so, that would not amount to a contravention of s 346 on the part of the employer. [189] It is, I accept, possible that the drafter of s 347 understood that he or she was engaged in the task of setting out instances of conduct by way of participation in the affairs of industrial associations. It is possible that he or she did not realise what was the potential reach of para (b)(iv), if read and applied literally. But what the drafter had in mind, subjectively, is not the point: Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378, 390 [25]. The point is the intention of the legislature to be discerned in the words used, having regard to history, background and context, and to such materials as are properly available conformably with s 15AB of the AI Act. [190] At base, the respondents' problem is that pointing to participation as the limiting context for s 347(b)(iv) does not take them the distance required. Read literally, that provision may indeed appear to travel beyond the kind of situations which the legislature had in mind, but the court does not know what it would have done about the problem had it been drawn to its attention. (Emphasis added) 169 With respect to previous authorities, Jessup J referred to his own decision in Esso v AWU and noted in addition that s 347(b)(iv) had "been uncontroversially applied" in seven other first instance decisions in situations which were "not confined to matters of participation in the affairs of the requesting organisation", at [193]. His Honour accepted that the application of s 347(b)(iv) had not been in issue in those proceedings but considered that: [I]t would not be right for me, as a single Judge of the court, to depart from this consistent pattern of authority upon the strength of an argument which is respectable more so than compelling. If the respondents' point is to be upheld, that will, in my view, require the judgment of a Full Court. 170 Counsel for the Commissioner submitted that the construction of s 347(b)(iv) for which the CFMMEU contends has been "expressly rejected" in a number of other judgments of the Court. Counsel cited, in addition to Esso v AWU and The Australian Paper Case, Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) [2017] FCA 168, (2017) 268 IR 178 at [168] (Jessup J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Syme Library Case) [2018] FCA 1142 at [420] (Tracey J); and Australian Building and Construction Commissioner v McDermott (No 2) [2018] FCA 1611 at [123]-[128] (Charlesworth J). I note, however, that Jessup J delivered the decision in The Kane Constructions Case on the same day as he did the judgment in The Australian Paper Case and, unsurprisingly, adopted the same reasoning; that Tracey J in The Syme Library Case followed the decision in The Australian Paper Case without extensive discussion of the issue; and that Charlesworth J in McDermott (No 2) followed The Australian Paper Case because her Honour agreed with the primary Judge in the matter now under appeal that the decision of Jessup J should not be regarded as plainly wrong. 171 Counsel for the Commissioner also submitted that the construction of s 347(b)(iv) given by Jessup J in The Australian Paper Case had been applied by a number of other single judges, by two Full Courts and had been accepted implicitly by the High Court in Esso v AWU (HCA) in the passage to which I referred earlier. The judgments of single judges which were cited by counsel were Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 at [251]-[252] (Tracey J); Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 at [162]-[164] (Mansfield J); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case) [2015] FCA 1173 at [16]-[17] (Jessup J); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 (White J); Director of the Fair Work Building Industry Inspectorate v O'Connor [2016] FCA 415 at [86]-[87] (White J); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 at [32]-[33] (Mortimer J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Webb Dock case) [2017] FCA 62 at [20] and [22] (Jessup J); Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 616 at [30]-[33] (Siopis J); Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 (DFWBII v CFMEU (No 2)) at [26] (Mansfield J); and Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Red & Blue Case) [2015] FCA 1125, (2015) 254 IR 200 at [117]-[119] (Jessup J). This is a solid body of authority but I accept that the significance to be attached to the authorities is diminished by reason that the point presently in contention was not put in issue in any of them, that in at least one, the contravention of s 348 was admitted, and that in at least two, the conduct in question would probably be regarded as encompassed by the construction of s 347(b)(iv) for which the present appellants contend - see, for example, DFWBII v CFMMEU (No2) (Mansfield J) at [26]. 172 The Full Court decisions to which counsel referred were the judgment of Dowsett and Rares JJ in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 (The Perth Airport Case) and Australian Building and Construction Commissioner v Molina [2020] FCAFC 97 (ABCC v Molina) at [49] (Bromberg, Colvin and Abraham JJ). Again, in the first, the question of construction now before the Court was not in issue as it seems that both the parties and the primary Judge had proceeded on the assumed basis that the construction for which the Commissioner now contends is correct, at [72]-[73]. The passage in the judgment of the Full Court in ABCC v Molina to which the Commissioner referred is no more than the recitation of the submission made by the Commissioner of that case. Moreover, the issue being addressed in that part of the judgment was the application of s 361 of the FW Act, and not the issue presently before this Court. 173 Nevertheless, there is a consistent line of authority providing support for the construction for which the Commissioner contends. 174 Both before the primary Judge and this Court, the appellants argued that the reasoning of Jessup J in Esso v AWU and in The Australian Paper Case was in error because: (a) insufficient regard had been had to the context of s 347(b)(iv) and, in particular, to its location in a suite of provisions concerning the protection of freedom of association and the right of employees to be represented; (b) of the evident purpose of the provision; (c) his Honour had not had regard to the inferences as to the proper construction of s 347(b)(iv) which can be drawn from a comparison of ss 343 and 348; (d) of the assistance which can be drawn from the legislative history of Div 4 of Pt 3-1 of the FW Act; and (e) of the avoidance of incongruity in the application of s 347(b)(iv). 175 It is not necessary to address these matters individually because I am making my own assessment of the proper construction of s 347(b)(iv). I note, however, that Jessup J's reasons did address each of the matters, other than the third.
Legislative history 176 The statutory predecessors of the provisions in Div 4 of Pt 3-1 of the FW Act were identified by Jessup J in the passages of his reasons in Esso v AWU and The Australian Paper Case set out above. It is not necessary to repeat his Honour's summary. 177 The provisions which were the counterpart of Div 4 in Pt 3-1 in the WR Act, after the extensive revisions effected by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), were located in Pt 16. The extent of those provisions is indicated by the fact that Pt 16 comprised 35 sections, compared with the five sections which comprise Div 4 in Pt 3-1 of the FW Act, in addition to ss 336 and 342. In part, the disparity is explained by the fact that Pt 16 in the WR Act provided separately for conduct by industrial associations against employers, employees, members of industrial associations and independent contractors as well as for conduct by employees and conduct by employers. 178 Section 792 of the WR Act prohibited employers from taking certain forms of action against an employee for a "prohibited reason". The forms of action prohibited correspond closely, but not exactly, with the forms of adverse action contained in s 342(1), Item 1 in the FW Act. 179 Section 793 listed 16 different prohibited reasons. As a general class, they can be said to have comprised reasons relating to the membership, or non-membership, of the employee in an industrial association, to the participation or non-participation of the employee in the affairs of an industrial association, and to employees' participation in the orderly and lawful system of industrial relations. Section 793(1)(m) seems to be an exception because it prohibited an employer from taking action against employees or independent contractors who, being members of an industrial association seeking better industrial conditions, were dissatisfied with their conditions. One obvious way by which an employer may have become aware of the dissatisfaction was by receipt of a request or requirement from the industrial association. 180 Section 795 addressed action by employees and ss 796-802 action by industrial associations. 181 The actions of employees and industrial associations which were prohibited were, as a broad general class, activities concerning the membership or participation of the employer in an industrial association and actions directed to employers with respect to the membership or non-membership or non-participation of others in industrial associations and their activities and the activities of others by way of participation in the orderly system of industrial relations. More specifically, Pt 16 contained provisions prohibiting industrial associations from taking action against employers with the intention of coercing the employer to engage in conduct of a prejudicial kind in relation to an employee for a prohibited reason (s 796(5)). 182 The Judge considered that Pt 16 of the WR Act dealt with two aspects of freedom of association which are also addressed in Div 4 of Pt 3-1 in the FW Act. The first is the right to become and remain a member or officer of an industrial association, as well as the right not to do so, at [57]. The second is the right to participate, or not participate, in the activities of an industrial association, at [58]-[59]. I would add a third, being the right to be represented, or not represented, by an industrial association, although this may be a consequence of the provisions in Pt 16 considered as a whole, rather than having been provided for expressly. 183 It is evident that the conciseness with which Div 4 in Pt 3-1 of the FW Act is expressed in comparison with Pt 16 of the WR Act was achieved in part by a synthesis in a number of the ways of the structure and approach of the latter. The intention to do so was made express in the EM: [1335] Part 3-1 incorporates and streamlines the following WR Act protections: • unlawful termination; • freedom of association; • sham arrangements in relation to independent contractors; and • various other specific protections (such as the protection from coercion in relation to making a collective agreement in subsection 400(1) of the WR Act). [1336] The consolidated protections in Part 3-1 are intended to rationalise, but not diminish, existing protections. In some cases, providing general, more rationalised protections has expanded their scope. (Emphasis added) 184 The rationalisation was achieved first by the use of the generic term "a person" in the proscriptions contained in ss 346-349 so that these are capable of referring, when appropriate, to employers, registered associations, individuals, and independent contractors. The status or identity of the person taking the action is made relevant only in the definition of "adverse action" in s 342. The table in that section identifies separately conduct which may be taken by seven categories of persons and, in relation to each, the status or character of the person against whom the action is taken. 185 Secondly, the concept of "engaging in industrial activity" encompasses many of the forms of conduct prohibited in Pt 16 of the WR Act. That is to say, instead of listing the various forms of conduct in the manner of Pt 16, s 347 uses more general terms. 186 The Judge noted at [58] the apparent similarity of the subject matter of one of the prohibited reasons contained in s 793(1) of the WR Act, namely, that stated in subpara (o) with s 347(b)(i)-(v): (o) [A]s an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is: (i) lawful; and (ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules; 187 Other examples of the rationalisation of the WR Act provisions in Div 4 of Pt 3-1 could be given. Section 799 of the WR Act contained prohibitions on industrial associations taking discriminatory action or seeking to coerce an independent contractor to take discriminatory action against another by reason of that person's failure to comply with a "direction" of the association (ss 799(2)(a)(iii) and 799(2)(b)(iii)). Section 799(2)(c)(iii) contained a similar prohibition with respect to the failure of persons to comply with a "direction" given by an industrial association. Prohibitions of these kinds seem to be encompassed by the term "lawful request … or requirement" in s 347(b)(iv). 188 The rationalisation of the provisions in Pt 16 of the WR Act into the more concise Div 4 in Pat 3-1 of the FW Act resulted almost inevitably in the use of more general terminology and thereby an increase in its scope. That this was intentional is indicated by the statement in [1336] that "[i]n some cases, providing general, more rationalised protections has expanded their scope". In a sense, the problem of statutory construction raised on the present appeal can be seen to be a consequence of that process. 189 One way in which the protections contained in Div 4 are expanded, compared with the counterpart provisions in the WR Act, arises from the definition of "industrial association", to which I referred earlier. Paragraph (b) of the definition of industrial association contained in s 12 of the FW Act, expands the categories contained in the counterpart WR Act by including associations formed both formally and informally. The effect of the amendment was explained in [39] of the EM: Paragraph (b) of the definition provides that an industrial association means an association of employees and/or independent contractors (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or interests as independent contractors, as the case requires. This element of the definition differs from the pre-reform definition in subsection 779(1) of the WR Act in two respects: • it now includes informal associations of employees and/or independent contractors; and • the requisite purpose of protecting and promoting their interests does not need to be a principal purpose of the association. 190 As the Judge noted, the extension of the coverage of protection to informal collectives of individuals may, in large part, explain the change from the criterion focused upon the activities of a member or officer of a union to the more general activity-based criteria found in ss 347(b)(i)-(v) in the FW Act. 191 I respectfully agree with the view of Jessup J at [199] of Esso v AWU that the enactment of Div 4 in Pt 3-1 of the FW Act was a significant exercise in law reform. That is self-evidently so. Part 3-1 should not be construed as though the legislative intention was that it have no wider scope than Pt 16 in the WR Act. Instead, the legislative intention seems to have been that, while workers and industrial associations should be able to engage in lawful activities, those to whom these activities were directed should not suffer adverse action by declining to participate in them, to facilitate their occurrence or by failing or refusing to accede to the requests or requirements made in the course of the activities. The construction of s 347(b)(iv) should take account of this legislative intention. The Court should not frustrate the legislative intention by building in qualifications which the Parliament did not choose to incorporate.
Conclusion on Grounds 1-3 192 The matters reviewed above indicate that there are matters capable of pointing each way as to the appropriate construction of s 347(b)(iv). The potentially broad consequences of a literal construction are an important consideration. So also is the omission in s 348 of any saving provision with respect to protected industrial action but, as indicated, perhaps the legislative intention was that the specific provisions in P 3-3 would prevail over the more general provisions in ss 346 and 348. 193 Ultimately, despite the appellants' critique of the decisions of Jessup J in Esso v AWU and in The Australian Paper Case, I am satisfied that the construction adopted in those decisions was correct for the reasons given by his Honour and that Grounds 1-3 of the appeal must fail. I have reached that conclusion having regard to a number of matters in particular: (a) plainly, s 346(b) in conjunction with s 347(b)(iv) is intended to provide protection to those who, amongst other things, do not accede to the lawful requests and requirements of industrial associations. There is no indication in the terminology of Div 4 that protection is given in relation to non-compliance with lawful requests concerning some subject matters but not with respect to others. Moreover, if the legislative intention is that protection be provided against a refusal or failure to accede to a lawful request or requirement, it is not obvious why that protection should be confined to requests or requirements of some kinds but not others. That is especially so given the forms of adverse action which are an essential element in the proscription. A stoppage of work of the kind which occurred in the present case is detrimental to an employer, whether it be taken because the employer has refused, say, a request that make a contribution to the union benevolent fund, or to permit union organisers to conduct a meeting with members or workers at a time and place other than those specified in ss 490 and 492 (which the appellants seem to accept would be encompassed by s 347(b)(iv)) or because the employer has not acceded to a claim concerning conditions of work or the provision of amenities (which the appellants contend is not); (b) it would have been so easy for the Parliament to have introduced some qualifying words into s 347(b)(iv) had that been the legislative intention and it has not, despite being aware that the general terminology it adopted may have expanded the scope of the protections provided by its legislative predecessor; (c) for similar reasons, it is not appropriate for this Court to read into s 347(b)(iv) qualifications which the Parliament did not choose to include, despite its awareness that Div 4 may be expanding the scope of its predecessor: Esso v AWU (HCA) at [52]. This is especially so given the difficulty in identifying and articulating a limitation which may be thought to accord with the imputed legislative intention; (d) on the construction propounded by the appellants, there is the potential for considerable uncertainty in identifying the requests or directions which would be encompassed by s 347(b)(iv). Which requests or requirements of a registered association will be protected and which not? The distinction between requests concerning working conditions and requests concerning union activities (including activities in the representation of members) may not always be clear. The circumstances of the present case provide an example. It is possible that the employees working on the Site in April 2015 were dissatisfied with the amenities provided by BPM; that they did not themselves wish to confront BPM about those matters; that they sought the assistance of the CFMMEU, and that, having attended and made the request for additional amenities without success, Mr Long and Mr Benstead then organised the industrial action as a means of expediting a favourable response. Conduct of that kind could be characterised as an activity of a registered association in the representation of the interests of its members and, on the appellants' proposed construction, likely to be encompassed by s 347(b); (e) the potential for uncertainty is also evident if the protection afforded by s 346(2) turns on the subjective intention of the person making the request or the object they are seeking to achieve. Again, the circumstances of the present case provide an example. Why should it make a difference if Mr Long and Mr Benstead requested larger amenities in order to facilitate the holding of meetings of union members on site when they exercised a right of entry as opposed to seeking better working conditions more generally?; (f) the endorsement by the majority in Esso v AWU (HCA) of the conclusion of Jessup J, even if given in passing as the appellants contended, is significant; and (g) on the construction of Div 4 as a whole, I do not consider that its provisions can be construed solely by reference to the object of protecting freedom of association. Plainly that is an important object sought to be achieved by Div 4, but both the terms of s 334 and of the EM indicate that the legislative intention was to protect both freedom of action and participation in, and responses to, the activities of industrial associations considered generally. 194 It is possible that a lawful request or requirement for the purposes of s 347(b)(iv) must have an "industrial" dimension: cf Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 (CFMEU v BHP Coal) at [113]-[121]. It is not necessary to express a concluded view about that. Even if the request or requirement must be of that character, the demand for additional on-site amenities was plainly such a request or requirement. 195 For these reasons, I would dismiss the ground contained in Grounds 1-3 of the Notice of Appeal.
Grounds 4 and 5 - the identity of the employees taking the industrial action 196 By Grounds 4 and 5 in the Notice of Appeal, the appellants complain that the Judge erred in finding that they had taken adverse action against BPM within the meaning of Item 7(a) of s 342(1) of the FW Act by organising industrial action against it when none of the industrial action alleged to have been organised by them had been taken by employees of BPM. This meant, they submitted, that the Judge had erred in finding that they had contravened s 346. 197 For the purpose of this submission, the appellants relied on a passage in the judgment of Jessup J in The Australian Paper Case which was endorsed by the Full Court in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268. 198 The argument turns on the terms of Item 7(a) in s 342(1) and on the definition of "industrial action" in s 19(1) of the FW Act. Section 19(1) provides: Industrial action means action of any of the following kinds: (a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; (b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee; (c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; (d) the lockout of employees from their employment by the employer of the employees. … 199 Item 7(a) which has been set out earlier in these reasons, provides that an industrial association, or an officer or member of an industrial association, takes adverse action against a person if the association or the officer or member (relevantly) organises or takes industrial action against the person. 200 In The Australian Paper Case, Jessup J expressed the view that industrial action of the kind referred to in s 19(1)(c) of the FW Act can only be taken "against" the employer of the employees there referred to, at [199]. His Honour did not provide reasons for that view. 201 In Auimatagi, one question was whether a union official had, as alleged by the Commissioner, organised industrial action "against" John Holland Pty Ltd by organising a stoppage of work by employees of subcontractors of John Holland in resistance to its insistence on workers on its building site complying with its protective clothing policy. The Commissioner argued that this aspect of The Australian Paper Case was wrong but his argument was rejected by the Full Court (Allsop CJ, Collier and Rangiah JJ): [88] The respondent submitted that Jessup J was wrong and that industrial action is, as defined, not limited to action being taken against the employer. We would reject that submission. The actions in s 19(1) are all only apt to be between employer and employee. Section 19(1)(d) is express in that respect. The performance of, and attendance for, work in s 19(1)(a)-(c) are matters as between employee and employer. The employee performs work for the employer; he or she is offered work by the employer; he or she fails or refuses to attend or perform work for the employer. This is reflected in s 19(2), which expressly recognises the character of the action as between employer and employee. This is reinforced by the Explanatory Memorandum to the Fair Work Bill 2008 at [91] which stated: "Subclause 19(2) provides that action is not considered industrial action if the action has been authorised or agreed to by the person to whom the action is directed." [89] Further, the terms of item 7(c) in providing for an independent contractor to be the person against whom "action" (not "industrial action") is taken, supports the notion that the industrial action of an employee under s 19(1)(a) against a person is his or her employer. The character of the person in s 19 is either employer or employee. Thus, the action that is industrial action is by the parties to the employment relationship. This reflects the principal Constitutional foundation of the FW Act seen in s 14: the "regulation of the activities, functions, relationships … of a [constitutional corporation] … and to the regulation of … its employees …" … [90] Thus any industrial action against John Holland had to be by its employees. None was pleaded, John Holland not being pleaded as an employer. There was no finding of any action by John Holland employees. Such evidence as touched on the matter was that the employees of John Holland went back to work on Friday afternoon after the Comcare meeting (see [37] above). The evidence does not disclose whether they had taken any action in the morning; though Mr O'Connor stated in his original statement at para 33 that at 8:30am on Friday he spoke to John Holland employees as set out at [34] above. [91] In these circumstances, there being no industrial action by the actions of employees of subcontractors against John Holland and the case not having been pleaded that the industrial action was by John Holland employees, Mr Auimatagi cannot have organised industrial action against John Holland … (Bold emphasis in the original, other emphasis added and citations omitted) 202 The appellants noted that the workers said to have taken the industrial action on 22 April 2015 were alleged in the Commissioner's Further Amended Statement of Claim (FASOC) to be employees of SL Excavations and Wagstaff (collectively the "Project Employees"), and not of BPM. This being so, on the authority of Esso v AWU and Auimatagi, the work stoppage could not have been adverse action as defined. This argument is available to the appellants only in respect of the contravention of s 346 found by the Judge as s 348 does not use the term "industrial action". 203 Initially, the Commissioner raised three matters in answer to this ground of appeal: (a) the appellants were seeking to raise a new matter on the appeal and should not be permitted to do so: University of Wollongong v Metwally (No 2) [1985] HCA 28, (1985) 60 ALR 68 at 71; Water Board v Moustakas [1988] HCA 12, (1988) 180 CLR 491 at 497; Coulton v Holcombe [1986] HCA 33, (1986) 162 CLR 1 at 6-8, 10-11; (b) in the event that the appellants are permitted to raise the issue, this Court should find that the construction of the term "industrial action" in s 19 in Auimatagi is plainly wrong; and (c) the Judge had failed to address his alternative submission invoking Item 7(c) in s 342(1), on which he had been entitled to succeed, so that the alleged contraventions of s 346(b) were established on that basis. This response was raised by Ground 1 in the Commissioner's second notice of contention. 204 Shortly before the scheduled hearing of the appeal, the Commissioner withdrew the first of these responses and did not oppose the appellants having leave to argue that the work stoppage was not "industrial action" for the purposes of s 342(1), Item 7(a). He said that he did so in recognition of the fact that the judgment of the Full Court in Auimatagi had not been delivered until after the Liability Judgment. The Commissioner maintained the second and third responses. 205 I think it fair to say that the Commissioner's initial submissions in support of their contention that Auimatagi was "plainly wrong" on this aspect were brief and generalised and gave the impression that the point was only faintly pressed. However, the Commissioner elaborated the submission in a footnote in the submissions he provided in support of his application to amend the second notice of contention (which concerns a different subject matter). 206 The elements of the Commissioner's submission were these: (a) a strike or stoppage of work may be directed to putting pressure on a third party (such as a head contractor) just as much as it may be directed to the employer of the employees engaging in it; (b) section 19 is concerned with the character of the action and not with the identity of the person against whom the action is directed; (c) the construction endorsed in Auimatagi has the potential to curtail significantly the reach of the FW Act, especially in circumstances in which a head contractor makes use of sub-contractors rather than employing its own employees to perform work; (d) the reasoning in Auimatagi overlooked that it is s 342, and not s 19, which introduces the element concerning the person "against" whom the action is taken; (e) Item 7(a) in s 342 refers to industrial action against "the person" in contrast with Item 5(b) which refers to action against "the employer"; and (f) the reasoning in Auimatagi is inconsistent with the decision of the Full Court (Lee, Finn and Merkel JJ) in Australian Building Construction Employees and Builders' Labourers Federation v Employment Advocate [2001] FCA 1443; (2001) 114 FCR 22 at [36]-[40] concerning an analogous provision in the WR Act (s 298S(2)) and inconsistent with the tenor of the reasoning in CFMEU v BHP Coal at [118]-[120] and in Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228, (2017) 258 FCR 257 at [48], [50]-[60], [65]-[66] and [92]. 207 By reason of the last three of these matters being advanced by the Commissioner only in a footnote in support of his application for leave to amend the second notice of contention (which concerns a different matter), the Court does not have the benefit of submissions from the appellants concerning those elements. 208 However, in the view I take, the absence of answering submissions is not critical. That is because, even if the submissions of the Commissioner are taken at face value and it be accepted that they provide some support for a construction which differs from that adopted in Esso v AWU and in Auimatagi, they are not sufficient to get over the high hurdle involved in showing that Auimatagi is plainly wrong on this issue. It is a recent considered judgment of the Full Court which addressed with some care the issue of construction now raised by the Commissioner. Even if the matters raised by the Commissioner are reasonably arguable, they do not indicate that Auimatagi is plainly wrong. 209 Accordingly, this particular response to Grounds 4 and 5 fails. 210 The Commissioner's reliance on s 342(1), Item 7(c), which was raised by Ground 1 in his notice of contention, does not avail him. The Item was set out in full earlier in these reasons but it is convenient to repeat its substance here: Adverse action is taken by … an industrial association, or an officer or member of an industrial association, against a person … (c) if the person is an independent contractor - takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; 211 As is apparent, Item 7(c) is concerned with action taken against an independent contractor. It may be accepted that each of SL Excavations and Wagstaff was an independent contractor to whom Item 7(c) was capable of referring. BPM itself was not an independent contractor as it was the head contractor on the Site. 212 The difficulty for the Commissioner is that his pleaded case at trial was that the appellants had organised action only against BPM. He did not allege that they had organised action against SL Excavations or Wagstaff. For this reason alone, the Commissioner's reliance on Item 7(c) does not avail him. 213 This means that Grounds 4 and 5 must succeed, with the consequence that the findings by the Judge that the appellants had contravened s 346 of the FW Act should be set aside.
Ground 6 - the pleading of the contraventions of s 348 214 By Ground 6, the appellants contend that it had not been open to the Judge to find the alleged contraventions of s 348 established by reason of an omission in the Commissioner's pleading of those contraventions. As will be seen shortly, I consider that the finding that the appellants had contravened s 348 should be set aside for a different reason. That means, strictly speaking, that it is not necessary to consider Ground 6. However, in case the matter goes further, I will do so. 215 The authorities, including those concerning other forms of coercion, indicate that a contravention of s 348 requires proof of two separate matters: (a) an intention by the alleged contravenor to negate the choice of the other party; and (b) the use of unlawful, illegitimate or unconscionable conduct to do so. See Esso v AWU (FC) at [174], [194]; Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, (2018) 261 FCR 347 at [25]-[26]; Auimatagi at [142]; and Newton v Australian Postal Corporation (No 2) [2019] FCA 2192, (2019) 292 IR 396 at [27]-[29]. 216 The appellants' ground focussed on the second of these matters. At first instance, they had submitted that the Commissioner's evidence and submissions in support of that matter had gone beyond his pleaded case. They relied for this purpose on the Commissioner's pleading in the FASOC: [27] Further and/or in the alternative, by reason of the matters in paragraphs 8, 8A, 8B and 11 to 21 above, each of Long and Benstead engaged in the Unlawful Conduct with the intent to coerce BPM Built to "engage in industrial activity", namely to comply with and/or represent or advance, the CFMEU Amenities Demand. Particulars The Applicant relies upon the meaning of engaging in industrial activity in s 347(b)(iv) and (v) of the FW Act and refers to paragraph 9 above. The Applicant notes that it relies upon the operation of ss 360 and 361 of the FW Act in relation to the intention and reason for action alleged above herein. [28] By reason of the matters in paragraphs 14 to 19A and 27 above, Long and Benstead each organised and took action against BPM Built with intent to coerce BPM Built to engage in industrial activity in contravention of section 348 of the FW Act. 217 The earlier paragraphs in the FASOC to which [27] and [28] referred were those in which the Commissioner had alleged the actions of Mr Long and Mr Benstead on 20, 21, 22 and 23 April 2015. 218 As is apparent, the Commissioner did not allege expressly that the conduct of Mr Long and Mr Benstead was "unlawful, illegitimate or unconscionable" and did not plead distinctly the matters said to support any of those characterisations. 219 The Commissioner did lead evidence in the first stage of the trial capable of bearing on these matters but that evidence was received subject to the objection of the appellants. The Commissioner sought to rely upon that evidence in his closing submissions. However, the Judge found that, with one possible exception, all of the Commissioner's evidence "travelled beyond the pleading" with the consequence that the appellants had not been put on notice of the case it had to meet on the question of whether the conduct of Mr Long and Mr Benstead was unlawful, illegitimate or unconscionable, at [106]. Accordingly, his Honour upheld the appellants' objections to the reception of that evidence, ibid. 220 The Judge found, nevertheless, that the appellants had had notice that part of the Commissioner's case concerning s 348 was his pleading that the conduct alleged was unlawful by reason of being in contravention of s 346(b), at [107]. His Honour held that the CFMMEU had also had notice of all the material facts relied upon by the Commissioner to establish that the conduct was unlawful, ibid. The Judge concluded that, in those circumstances, there was no prejudice to the appellants in permitting the Commissioner to rely on the contravention of s 346(b) as the basis for demonstrating unlawfulness in establishing the necessary "intent to coerce", ibid. 221 It is important to note that it was only by reliance on the unlawfulness of the conduct established by s 346 that the Commissioner was able to establish the unlawfulness element required for the second limb of coercion in s 348. 222 The appellants' ground of appeal is a pleading point. They referred to authorities indicating that an applicant in a civil penalty proceeding is required to plead its case comprehensively and clearly: CFMEU v BHP Coal at [63]-[65]; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) [2018] FCA 1081 at [107], and contended that the failure by the applicant to plead all the elements of the contravention alleged meant that the Court could not conclude that such a contravention had occurred: The Brooker Highway Case at [108]. 223 The resolution of this ground of appeal does not require consideration of these authorities in any detail. That is because I consider that the Judge was correct in concluding that the Commissioner had pleaded that the conduct of the appellants was unlawful by reason of being in contravention of s 346 and had relied upon the same conduct (including its unlawful character) in his pleading of the contravention of s 348. In [24] of the FASOC, the Commissioner had pleaded the conduct of Mr Long and Mr Benstead for the purposes of s 346 and had characterised that conduct as unlawful. The Commissioner gave that conduct the shorthand "Unlawful Conduct". In [25] and [26] of the FASOC, the Commissioner alleged that, by engaging in the "Unlawful Conduct", Mr Long and Mr Benstead had taken adverse action against BPM in contravention of s 346. As noted earlier, in doing so the Commissioner relied upon the forms of industrial activities set out in s 347(b)(iv) and (v). 224 The form of the Commissioner's pleading was less than ideal but, in my view, the Judge was correct to conclude that it was sufficient to put the appellants on notice that the allegation of coercion made against them was made by reason of the unlawful character of their conduct. I note that the appellants were aware of the requirement for their conduct to be shown to be unlawful, illegitimate or unconscionable, as is evidenced by the outline of submissions which they filed and served in advance of the first stage of the trial, at [42]. It indicates that they could not have been under any misapprehension as to the Commissioner's claims. 225 Accordingly, if the fate of the appeal had turned on the success of Ground 6, I would have found that it failed.
Ground 7 - reliance on the contravention of s 346 in relation to s 348 226 Ground 7 raises a more substantive point as the appellants contend that the Judge had been wrong in relying on their contravention of s 346 as satisfying the unlawfulness required for the second element of coercion to which s 348 refers. 227 The Judge did find that it was open to the Commissioner "to rely on the contravention of s 346(b) as the basis for demonstrating unlawfulness in establishing an "intent to coerce"", at [107]. 228 The appellants' submission is that, if their appeal against the finding of a contravention of s 346(b) succeeds, it must have the consequence that their appeal against the finding of a contravention of s 348 must also succeed. That is because the finding of unlawfulness necessary to establish coercion for the purposes of s 348 depends (in particular circumstances of this case) on the finding that they had contravened s 346. 229 Although I have rejected the appellants' attack on the finding of the contraventions of s 346 contained in Grounds 1-3, I have upheld the attack in Grounds 4 and 5. That means that, subject to the fate of the Commissioner's application to amend his second notice of contention, the appellants' appeal against the finding that they had contravened s 348 must succeed.
The Commissioner's application for leave to amend the notice of contention 230 On 10 August 2020, two days before the day listed for the hearing of the appeal, the Commissioner gave notice that he would seek leave at the commencement of the hearing to file and serve an amended second notice of contention by including a new Ground 2 as follows: 2. [T]he primary judge should have nevertheless held that: (i) the action was otherwise illegitimate or unconscionable by reason of the stoppage being organised to disrupt (and/or did disrupt) the scheduled work on Site; (ii) the action was unlawful because it contravened s 346(b) of the FW Act by reference to Item 7(c) of s 342 of the FW Act. 231 The Commissioner thereby wishes to contend that, by reason of one or other or both of the alternatives in the proposed new ground, the appellants should, in any event, be found to have contravened s 348 of the FW Act. 232 The Court made orders for the provision of written submissions concerning the application for leave to amend and the merits of the proposed amendment. Both parties then provided further submissions. 233 The Commissioner's explanation for the belated application for leave to amend the second notice of contention was that during his preparation for the appeal hearing, he had come to recognise that: (a) the appellants may have a good explanation for not raising at first instance the subject of Grounds 4 and 5 in their appeal because the decision of the Full Court in Auimatagi had been delivered only after the delivery of the Liability Judgment; (b) seeking to show that Auimatagi on this aspect was plainly wrong required him to meet a high hurdle; (c) if this Court was not satisfied that Auimatagi was plainly wrong, he would therefore need to show that the stoppage on 22 April 2016 met the requirements of Item 7(c) in s 342 of the FW Act; (d) if he was unable to establish that either Item 7(a) or (c) of s 342 was engaged, the contravention of s 346(b) found by the Judge would be overturned, with the consequence that he could not rely upon that contravention to establish the element of unlawfulness in the coercion to which s 348 refers; (e) in those circumstances, he should seek to add a further ground to the notice of contention so as to permit him to argue that, if the stoppage was not "unlawful", it was nevertheless "illegitimate or unconscionable"; and (f) this is the purpose of proposed new Ground 2(a)(i). 234 The Commissioner also explained that Ground 2(a)(ii) was added so as to provide a basis for the finding that the respondents' conduct on 22 April 2016 was unlawful by reason of being a contravention of s 346(b) by reference to Item 7(c) of s 342. However, proposed Ground 2(a)(ii) replicates the substance of the existing Ground 1 in the second notice of contention. For the reasons already given, I would reject that Ground. It need not be considered again. 235 The appellants opposed the grant of leave to the Commissioner to amend the notice of contention on a number of grounds. In my view, the appellants' opposition has some force. 236 Rule 36.24 of the Federal Court Rules 2011 (Cth) (FCR) requires that a notice of contention be filed and served within 21 days of the service of the notice of appeal. The Commissioner did file a notice of contention within time. It contained two grounds, neither of which the Commissioner now pursues. The present application is made well after the expiry of the period fixed by r 36.24. The delay is made more evident by reason that the Commissioner had previously given attention to the content of the notice of contention, as his second notice was filed on 24 June 2020. 237 The Commissioner's explanation for the lateness of the application to amend is the belated realisation that, if the appellants were able successfully to impugn the basis upon which the Judge had found that they had contravened s 346(b), the appeal would succeed unless he could rely on some alternative basis. Whilst it is not uncommon for parties to engage in a closer analyses of the issues in the preparation for an appeal hearing, and for this to lead to amendments to a notice of appeal, a cross-appeal or a notice of contention, it is not, of itself, a persuasive consideration in favour of the grant of leave. 238 However, that consideration can be put to one side because the third matter which the appellants raise is more significant. They contend that the claim which the Commissioner now wishes to advance, namely, that their conduct had been illegitimate or unconscionable, had not been pleaded at first instance nor advanced at the trial. The appellants contend that, in this circumstance, they would be prejudiced if the Commissioner is now permitted to raise the matter for the first time. They said that they made a "forensic decision" shortly after the Commissioner filed his FASOC to file a further amended defence in which they admitted all the allegations of material facts alleged by the Commissioner. That was so in a circumstance in which there was no pleading that their conduct was illegitimate or unconscionable, let alone that it was illegitimate or unconscionable by reason of disruption to the work scheduled on the Site. The appellants noted further that the term "scheduled work" had been defined without particularity in the FASOC: [11] BPM Built had scheduled construction work to be performed by SL Excavations and Wagstaff on the Project at the Site on 22 April 2015 (Scheduled Work). [12] Each of the Project Employees was required by their respective employers to perform the Scheduled Work on the Project at the Site on 22 April 2015. 239 The respondents submitted that any assessment of the illegitimacy (or, for that matter, of the unconscionability) of the stoppage of work on 22 April 2015 would have to take account of the nature and extent of the scheduled work which was disrupted and would involve, to some extent, a proportionality analysis of the kind in which Jessup J engaged in Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223; (2009) 179 IR 441 at [110]. See also Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157; (2017) 267 IR 130 at [148]-[152]. They have been denied the opportunity to consider and adduce evidence which may bear on that analysis. 240 It is pertinent to keep in mind two matters when considering this submission of the appellants. The first is that it is not uncommon for counsel resisting an opponent advancing a new argument on appeal to emphasise the alternative decisions which may have been made at first instance had the point been advanced then. The second is that it is often difficult for counsel to restore themselves to the forensic context in which the strategic and tactical decisions were made in litigation. These two considerations may point in different directions but, in my view, this Court should not be unwilling to accept a reasonable possibility that the course of events at first instance may have been different had a point sought to be advanced for the first time on appeal been raised at the trial. 241 In the present case, I would accept the appellants' submission that the course of the trial may have been different. That is especially so given that the Commissioner was permitted to lead evidence at the trial (over the objection of the appellants) from Mr Finney and Mr Skurrie and counsel for the appellants made the strategic decision not to cross-examine either. In these circumstances in particular, I consider that it would be unjust now to permit the Commissioner to advance the new argument on appeal when it could possibly have been met by further evidence at first instance. 242 For this reason alone, it is appropriate to dismiss the application for leave to amend the notice of contention. It is therefore unnecessary to consider the other matters raised by the appellants by way of opposition to the grant of leave to amend. 243 The effect is that, subject to consideration of the cross-appeal, I consider that the appeal should be allowed and the orders of the Judge set aside.
The cross-appeal 244 The cross-appeal of the Commissioner contains a single ground. He contends that the Judge should have found that the CFMMEU had, by reason of the conduct of each of Mr Long and Mr Benstead on 22 April 2015 and by reason of s 363 or s 793 of the FW Act, committed two contraventions of ss 346 and 348 and not one. 245 Given that I would allow the appeal against the findings that Mr Long and Mr Benstead had contravened ss 346 and 348, it is not, strictly speaking, necessary to address this ground. However, having regard to Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [12], I will address it. 246 Section 363, which is located in Div 7 of Pt 3-1, provides (relevantly): 363 Actions of industrial associations (1) For the purposes of this Part, each of the following is taken to be action of an industrial association: … (b) action taken by an officer or agent of the industrial association acting in that capacity; … … (3) If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show: (a) that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and (b) that the person, or a person in the group, had that state of mind. (4) Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate). 247 Section 793 which is located in Pt 6-5 of the FW Act provides (relevantly): 793 Liability of bodies corporate Conduct of a body corporate (1) Any conduct engaged in on behalf of a body corporate: (a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or … is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body. State of mind of a body corporate (2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show: (a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and (b) that the person had that state of mind. Meaning of state of mind (3) The state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person's reasons for the intention, opinion, belief or purpose. … 248 In the Liability Judgment, the Judge gave brief reasons for his conclusion that the CFMMEU had contravened ss 346 and 348 only once: [112] It is not in contest that at all material times each of Long and Benstead was an officer or employee of the CFMEU and acting within the scope of his actual or apparent authority as such an officer or employee. Accordingly, and by operation of s 793(1), the conduct of Long and Benstead which I have found to have contravened ss 346 and 348 is to be taken to have been engaged in also by the CFMEU. Additionally, and by reason of s 793(2), the state of mind of Long and Benstead associated with the conduct in contravention of ss 346 and 348 is to be attributed to the CFMEU. When those facts are assessed against the elements of the contraventions of ss 346 and 348 alleged against the CFMEU, the allegation that the CFMEU contravened those provisions is made out. [113] Although I have held that each of Long and Benstead contravened ss 346 and 348, it does not follow that the CFMEU has contravened each of those provisions twice. The conduct of the CFMEU in contravention of each of those provisions is the sum of the conduct of Long and Benstead that contravened each provision: Robinson at [51]-[53] (Charlesworth J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269 at [21]-[23] (Reeves J). [114] For those reasons, I hold that on 22 April 2015 the CFMEU committed a single contravention of each of ss 346 and 348. 249 As is apparent, his Honour regarded the CFMMEU's contravention as arising from the sum of the conduct of Mr Long and Benstead. 250 At the second stage of the trial, the Commissioner sought to re-agitate the issue concerning the number of contraventions of the CFMMEU. He sought to distinguish Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525, (2016) 241 FCR 338 (Charlesworth J) and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269 (Reeves J) on which the Judge had relied and submitted that the reasoning of Besanko J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 3) (Cartledge) [2017] FCA 10 should be applied. The Judge rejected the Commissioner's contentions saying, at [49]: … Even if I had been persuaded that there is a proper basis for reconsidering the finding made in the primary judgment, I respectfully agree with the conclusion of Reeves J and would not have been persuaded to disturb my earlier finding that the CFMMEU committed a single contravention of each of ss 346 and 348 by reason of the sum of the conduct of Long and Benstead. 251 As is apparent, each of ss 363 and 793 provide for the attribution of conduct and states of mind of one person to another: in the case of s 363, to an industrial association, and in the case of s 793, to a body corporate. Although the Judge applied s 793, s 363 may have been more apposite, partly because it is located in, and specific to, Pt 3-1 and partly because s 363(4) specifies that subss (1)-(3) have effect despite ss 793(1) and (2). However, it was not suggested that the application of s 363 instead of s 793 would have any practical effect in the present case. 252 It is appropriate to refer briefly to the attempt by the Commissioner to have the issue re-agitated in the penalty hearing. It may be accepted that the findings in the Liability Judgment did not dispose finally of the rights of the parties and so could, for that reason, be characterised as an interlocutory decision. However, in my view, the circumstances in which an issue determined in the judgment following the first stage of a trial conducted pursuant to r 30.01 of the FCR may be agitated again at a later stage should be exceptional - see McMullin v ICI Australia Operations Pty Ltd (No 7) [1999] FCA 1814; (1999) 169 ALR 227 at [20]. To do otherwise would be to undermine the finality sought to be achieved by the Court's orders that particular issues in the action should be determined separately from other issues. It would be undesirable for the judgment to be regarded as preliminary. 253 The Commissioner's submissions in support of the cross-appeal were relatively straightforward. He contended that the effect of s 793 is that the "conduct" of a relevant official "is taken, for the purposes of this Act … to have been engaged in also by the body". In addition, the state of mind of the relevant official is also taken to be the state of mind of the body corporate. The consequence, so the Commissioner submitted, is that if an official of a body corporate engages in conduct with a relevant state of mind, it is as if the body corporate itself has engaged in that same conduct with that state of mind. That being so, as each of Mr Long and Mr Benstead had engaged in the proscribed conduct, the CFMMEU should have been taken to have engaged in the conduct of each and therefore to have committed two contraventions of each of ss 346 and 348. The Commissioner's submission, put more shortly, was that the CFMMEU was to be taken to have done everything which Mr Long did and to have done everything which Mr Benstead did. 254 The Commissioner noted that this was not a case in which the conduct of Mr Long and Mr Benstead, considered separately, did not constitute a contravention but, viewed together, would do so. That is to say, this was not a case in which the sum of their conduct was necessary in order for the contravention of the CFMMEU to be established. The Judge's finding that the contravention of the CFMMEU was the "sum" of the conduct of Mr Long and Mr Benstead was accordingly in error. 255 The Commissioner's final submission was that the statutory purpose would not be served if the industrial association/body corporate was exposed to a penalty for only one contravention. 256 The appellants resisted the cross-appeal, contending: (a) the Commissioner was seeking to use ss 363 and 793 in an inappropriate manner, namely, as a means of making a corporation or an industrial association vicariously liable for the contravention of its officials when that is not their purpose or effect; (b) the approach of the Judge was consistent with that of Charlesworth J in Robinson and of Reeves J in ABCC v CFMEU; (c) the action of Mr Long and Mr Benstead found to have contravened of ss 346 and 348 was the same, namely, the organisation of the work stoppage and that stoppage was "the sum total" of the conduct of both; and (d) the decision of Besanko J in ABCC v CFMMEU (No 3) was distinguishable. 257 It has been held in several decisions that s 793 does not attribute liability to body corporates for contraventions of Pt 3-1 or of the FW Act more generally: Robinson at [48]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra's Edge Case) [2016] FCA 772 at [19] (Jessup J); Australian Building and Construction Commissioner v Pauls [2017] FCA 843 at [48] (Rangiah J); and Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934, (2018) 280 IR 173 at [30] (Jagot J). The Commissioner did not challenge the correctness of that understanding of s 793, and it is consistent with the view of s 84(2) of the former Trade Practices Act 1974 (Cth) stated by Toohey J in Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719 at 739; (1983) 76 FLR 455 at 474-5. There is no reason to distinguish s 363 from s 793 in this respect. Accordingly, ss 363 and 793 can be better understood as facilitating proof of the conduct of an industrial association or of a body corporate when that is necessary under Pt 3-1 (in the case of s 363) or under the FW Act more generally (in the case of s 793): see McDermott (No 2) at [53]. 258 The pleading in [32]-[34A] of the Commissioner's FASOC did not reflect this understanding of ss 363 and 793. Those paragraphs indicate that the Commissioner was, seemingly, alleging a form of vicarious liability against the CFMMEU. However, taking what is perhaps a generous view of his pleading, the Commissioner was alleging that the CFMMEU had taken adverse action against BPM within the meaning of s 342(1), Item 7(a) by organising industrial action against BPM. The industrial action it was alleged to have organised was the stoppage of work on 22 April 2015 by the Wagstaff workers. 259 There was only one work stoppage. Moreover, on the facts pleaded by the Commissioner and on the Judge's findings, there was only one organisation of it, albeit undertaken by two human actors: cf Robinson at [53]; The Yarra's Edge Case at [19]; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070 at [70]-[113]. The circumstances considered by Besanko J in Cartledge on which the Commissioner relied are distinguishable, because that was a case of multiple unlawful acts. 260 In establishing the contraventions of ss 346 and 348 of the FW Act which he alleged, the Commissioner could invoke s 363 or s 793 in order to attribute to the CFMMEU the conduct and states of mind of Mr Long and Mr Benstead (or either of them). The attribution of the conduct and state of mind of only one of Mr Long or Mr Benstead would have been sufficient, in the circumstances, to establish the CFMMEU's contravention. But the fact that the Commissioner could also rely in proof of his allegation on the conduct of the second individual does not have the consequence that there was a second contravention by the CFMMEU. 261 The error in the Commissioner's approach is that it overlooks the effect of ss 363 and 793 established by the authorities and, further, conflates the conduct to be proved with the means by which that conduct may be proved. 262 The Commissioner is, however, correct in submitting that the Judge was in error in regarding the contravening conduct of the CFMMEU as the "sum" of the contravening conduct of Mr Long or Mr Benstead, at least, if by that the Judge meant that it was the accumulation of the conduct which constituted the CFMMEU's contraventions. However, for the reasons given above, nothing turns on that. The Judge was correct in concluding (on the assumed basis that ss 346 and 348 had been contravened) that the CFMMEU had contravened each section only once. 263 The cross-appeal should be dismissed.
Conclusion 264 For the reasons given above, I would: (a) uphold Grounds 4, 5, 7 and 8 in the notice of appeal; (b) dismiss Grounds 1, 2, 3 and 6; (c) dismiss Ground 1 in the second notice of contention; (d) refuse leave to the Commissioner to amend the second notice of contention; and (e) dismiss the Commissioner's cross-appeal. 265 I would make the following orders: (a) the appeal is allowed; (b) each of the declarations and each of Orders 2-8 inclusive made by the Judge on 12 November 2019 be set aside; (c) the proceedings at first instance be dismissed; and (d) there be no order as to costs. I certify that the preceding one hundred and ninety-one (191) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.
Construction, Forestry, Maritime, Mining and Energy Union
Australian Building and Construction Commissioner
[2019] HCATrans 74
[2014] HCA 12
[1985] HCA 28
[1988] HCA 12
(1983) 47 ALR 719
(2018) 260 FCR 564
(2012) 248 CLR 500
Leave to amend the notice of contention dismissed; appeal allowed; cross-appeal dismissed; declarations and Orders 2-8 made on 12 November 2019 set aside; proceedings at first instance dismissed; no order as to costs.
(2015) 253 IR 304
(2016) 245 FCR 39
(2017) 263 CLR 551
(2017) 268 IR 178
(2017) 249 FCR 458
(2020) 295 IR 414
(2017) 260 CLR 650
(2018) 264 CLR 252
(1998) 194 CLR 355
(2001) 117 FCR 424
(2012) 248 CLR 378
(2009) 239 CLR 27
(2017) 262 CLR 362
(2014) 250 CLR 664
(1997) 187 CLR 384
(2012) 250 CLR 503
(2010) 241 CLR 252
(2015) 254 IR 200
(2015) 230 FCR 298
(2018) 267 FCR 268
(1985) 60 ALR 68
(1988) 180 CLR 491
(1986) 162 CLR 1
(2001) 114 FCR 22
(2017) 258 FCR 257
(2018) 261 FCR 347
(2019) 292 IR 396
(2009) 179 IR 441
(2017) 267 IR 130
(2008) 236 CLR 1
(2016) 241 FCR 338
(1999) 169 ALR 227
(2018) 280 IR 173
(1983) 76 FLR 455
[2009] HCA 41
[1986] HCA 33
[2008] HCA 26