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.