House v The King (1936) 55 CLR 499
Construction, Forestry, Mining and Energy Union v Williams (2010) 262 ALR 417
Temple v Powell (2008) 169 FCR 169
Leighton Contractors v CFMEU (2006) 164 IR 375
Veen v R (No 2) (1988) 164 CLR 465
Re McJannet; ex parte Minister for Employment, Training and Industrial Relations (1995) 184 CLR 620
Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357
Kelly v Fitzpatrick (2007) 166 IR 14
Gibbs v The Major, Councillors and Citizens of City of Altona (1992) 37 FCR 216
Director of Public Prosecutions (UK) v Merriman [1973] AC 584
Lord Irvine of Lairg, Intention, Recklessness and Moral Blameworthiness: Reflectiions on the English and Australian Law of Criminal Culpability (2001) 23(1) Syd LR 5
Seddon and Ellinghaus, Chesire and Fifoot's Law of Contract (9th ed, Butterworths, 2008)
[2]
Date of hearing: 24 February 2010
[3]
Division: FAIR WORK DIVISION
[4]
Solicitor for the Appellants: Carne Reidy Herd Lawyers
[5]
Counsel for the First Respondent: Mr G Hatcher SC with Ms S Moody
[6]
Solicitor for the Second Respondent: Sciaccas Lawyers
[7]
Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90
[8]
CORRIGENDUM
1. At paragraph 2 of the Reasons for Judgment of Spender J the following sentence should read "John Holland Pty Ltd - Abbot Point Coal Terminal Expansion Workplace Agreement 2008" instead of "John Holland Pty Ltd - Abattoir Point Coal Terminal Expansion Workplace Agreement 2008".
I certify that the preceding one (1)
numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Spender.
[9]
Associate:
Dated: 27 July 2010
IN THE FEDERAL COURT OF AUSTRALIA
[10]
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
[11]
THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
[12]
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
[13]
The appeal be allowed;
Orders 5, 6, 7, 8, 9 and 10 made on 13 August 2009 be set aside;
The matter be remitted to the learned primary Judge for further consideration; and
Liberty to apply.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.
IN THE FEDERAL COURT OF AUSTRALIA
[14]
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
[15]
THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
[16]
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
[17]
spender j:
1 I have had the benefit of reading the reasons for judgment of Logan J and the reasons for judgment of Dowsett J.
2 I agree that the learned trial judge was correct to conclude that an industrial agreement to which John Holland Pty Ltd (John Holland) and the Australian Workers Union (AWU) were parties, the John Holland Pty Ltd - Abattoir Point Coal Terminal Expansion Workplace Agreement 2008 (the Expansion Agreement), applied exhaustively to work performed by employees of John Holland at the work site labelled the X50 expansion work site.
3 I agree with the reasons for judgment of Dowsett J that the parties have misconstrued ss 760, 767 and 768 of the Workplace Relations Act 1996 (Cth) (the WR Act).
4 I am prepared to agree with Dowsett J that the matter be remitted for further consideration, although, for the reasons which I explain below, the learned trial judge appears to have proceeded on erroneous principle.
5 It is convenient to set out the material parts of the relevant provisions of the WR Act:
760 Right of entry to hold discussions with employees
A permit holder for an organisation may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions. For this purpose, eligibleemployeemeans any employee who:
(a) on the premises, carries out work that is covered by an award or collective agreement that is binding on the permit holder's organisation; and
(b) is a member of the permit holder's organisation or is eligible to become a member of that organisation.
…
767 Hindering, obstruction etc. in relation to this Part
(1) A permit holder exercising, or seeking to exercise, rights:
(a) under section … 760; or
(b) …
must not intentionally hinder or obstruct any person, or otherwise
act in an improper manner.
(2) Subsection (1) is a civil remedy provision.
768 Misrepresentations about right of entry
(1) A person must not, in the circumstances mentioned in subsection (2), engage in conduct:
(a) with the intention of giving a second person the impression;
or
(b) reckless as to whether a second person would get the impression;
that the first person, or a third person, is authorised by this Part to do a particular thing.
(2) The circumstances are:
(a) the first person or the third person (as the case requires) is not authorised by this Part to do that thing; and
(b) the first person knows, or has reasonable grounds to believe, that the first person or the third person (as the case requires) is not authorised by this Part to do that thing.
(3) Subsection (1) is a civil remedy provision.
6 Sections 767 and 768 are concerned with quite different contraventions.
7 In my view, if s 760 is not engaged because the relevant permit holder lacks the prescribed purpose, then s 767(1) has no operation, because it applies, relevantly, only to a permit holder "exercising, or seeking to exercise a right under s 760" of the WR Act. In my view, s 767(1) regulates the way in which a person exercises his or her right of entry pursuant to s 760. If the entry on 13 February 2009 or 5 March 2009 was authorised by s 760, the conduct of Mr Ingham was no more than performing his ordinary duties as an employee of John Holland.
8 For myself, the relevant question under s 760 was whether the permit holder had the prescribed purpose. If the permit holder had that purpose, then it is a question whether there was an actual intentional hindrance or obstruction of any person; in my view, it is highly unlikely that the conduct of the union officials could, in those circumstances, constitute a hindrance or obstruction of Mr Ingram, he doing no more or less than what his duties as an employee of John Holland required him to do.
9 Alternatively, if the permit holder did not have the prescribed purpose, then s 767 is not engaged, in my opinion.
10 In any event, it is highly contentious whether the conduct of the union officials on the two relevant dates could, as a matter of fact, constitute a hindrance or obstruction of Mr Ingham. The observations of Merkel J in Pine v Doyle (2005) 143 IR 98 are in my view apposite.
11 Section 768 is concerned with prohibiting intentional or reckless misrepresentation as to authorisation under Part 15 of the WR Act.
12 As Dowsett J says in his reasons for judgment, "Whether such entry was authorised was to be answered by s 760. As that question has not been resolved in accordance with s 760, the alleged breaches of s 768 have not been established."
13 The prohibition contained in s 768(1) is confined, by s 768(2), to circumstances where the first person is not authorised to enter the X50 work site, and that person knows that he is not authorised to enter, or has reasonable grounds to believe that he is not authorised to enter.
14 The learned trial judge said, at [176] and [177] of his reasons:
176 I accept that the Union officials did not enter the X50 work site on 19 November 2008 with the intention of hindering or obstructing Mr Ingham or other employees of John Holland. At that time, the officials thought that X25 and X30 meant something different from X50 and they believed John Holland had attempted [unsuccessfully] to change Appendix 1 to introduce a reference to X50. I accept that in a practical sense the understanding of each permit holder that John Holland had taken steps on 3 November 2008 to propose a change to Appendix 1 to introduce a reference to X50 must have suggested to them and reinforced in their mind that John Holland thought the Agreement did not apply to the expansion work on the X50 site. They still thought that when they entered the site on 13 February 2009 because they continued to act on assumptions they had made. However, by 13 February 2009, John Holland had repeatedly made its strong objections clear on 19 November 2008 and correspondence asserting its position had ensued. The officials had not considered the content of the work described in Appendix 1 to the Agreement. Nevertheless and notwithstanding Mr Dettmer's acceptance that good practice required an examination of John Holland's claims, the officials entered the site on 13 February 2009 and 5 March 2009 without making enquiries that would have been likely to reveal the subsuming of the Appendix 1 work within the X50 Expansion adopted by PCQ.
177 The question then is whether the officials are to be taken to intend the natural consequences of their conduct. …
(Emphasis added).
15 However, the learned trial judge said later, in [177]:
The officials may not have intended to substantially impede Mr Ingham from performing any of his duties in the ordinary way but equally, they must have been aware that what they were doing by entering the site, progressing along the road and seeking to convene meetings with the employees, was likely to impede Mr Ingham in the course of his normal duties due to the chronology of events.
(Emphasis added).
16 Later, in that paragraph, his Honour said:
Accordingly, it seems to me that the officials must be taken to have intended the natural consequences of their conduct of entry in circumstances where they had not investigated carefully the merits of John Holland's position and they knew John Holland held strong objections.
(Emphasis added).
17 At [179], his Honour said:
… I find that the conduct was intentional in the sense that the conduct was unreasonable as the permit holders must be taken to have been aware that their conduct in entering the premises in all the circumstances described in these reasons was likely to impede Mr Ingham and nevertheless the permit holders elected to enter the site, progress to the crib huts and conduct meetings with employees of John Holland in the circumstances previously described …
(Emphasis added).
18 In 1961, the House of Lords handed down the decision in Director of Public Prosecutions v Smith [1961] AC 290 (DPP v Smith). This was an appeal from a conviction for murder. Smith was driving a car in the back of which were some sacks of scaffolding clips which had been stolen. A police constable, noticing the sacks, told him to draw in to the kerb, but instead Smith accelerated. The constable clung on to the side of the car, which pursued an erratic course, but he was finally shaken off and fell in front of another car, receiving fatal injuries. The respondent drove on some 200 yards and dumped the stolen property. He then returned and was later charged with capital murder.
19 At trial, the judge directed the jury that "If you are satisfied that… he must as a reasonable man have contemplated that grievous bodily harm was likely to result to that officer… and that such harm did happen and the officer died in consequence, then the accused if guilty of capital murder…" The trial judge directed the jury "the intention with which a man did something can usually be determined by a jury only by inference from the surrounding circumstances including the presumption of law that a man intends the natural and probable consequences of his acts." Smith was convicted of murder.
20 The case was appealed to the Court of Criminal Appeal. It held that the judge failed to make clear that the presumption was evidential and could be rebutted, and that the jury's ultimate task was to decide what, subjectively, was Smith's own intention.
21 In the House of Lords, Viscount Kilmuir, with whom the other Lords agreed, said, at 331:
Provided that the presumption [that a man intends the natural and probable consequences of his acts] is applied, once the accused's knowledge of the circumstances and the nature of his acts has been ascertained, the only thing that could rebut the presumption would be proof of incapacity to form an intent, insanity or diminished responsibility.
22 The House of Lords held that the test for intention was an objective one and that there had been no misdirection by the trial judge.
23 In R v Symth (1957) 98 CLR 163, the High Court (including Dixon CJ) considered a trial direction similar to that in DPP v Smith. The High Court found that:
… the direction complained of is not in accordance with law… In this Court disapproval has been expressed on more than one occasion of the use, where a specific intent must be found, of the supposed presumption, conclusive or otherwise, that a man intends the natural, or natural and probable, consequences of his acts…"
24 In Parker v R (1963) 111 CLR 610 , Dixon CJ considered DPP v Smith. His Honour said:
There are propositions laid down in the judgment [DPP v Smith] which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept … I think Smith's Case should not be used as authority in Australia at all.
I am authorised by all the other members of the High Court to say that they share the views expressed in the foregoing paragraph.
25 The decision in Parker is seen to be what forced the Australian High Court to "explicitly sever the yoke of English legal authority": Lord Irvine of Lairg, Intention, Recklessness and Moral Blameworthiness: Reflections on the English and Australian Law of Criminal Culpability (2001) 23(1) Syd LR 5.
26 In my respectful view, whether in a criminal trial or in proceedings for a civil remedy, the test for intention is a subjective not an objective one, and the learned trial judge was in error in the approach reflected in [177] of his Honour's reasons.
27 I agree with the orders proposed by Dowsett J.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.
[18]
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
[19]
THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
[20]
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
[21]
REASONS FOR JUDGMENT
DOWSETT J:
28 I have read the reasons prepared by Logan J and gratefully adopt his Honour's outline of the facts. With one exception, I also agree with his Honour's reasons and conclusions concerning the extent of application of the John Holland Pty Ltd-Abbot Point Coal Terminal Expansion Workplace Agreement 2008 (the "Expansion Agreement"). I differ from his Honour only in respect of his observations concerning the reasoning of the primary Judge at [79], [81] and [82] of his reasons. In my view, the primary Judge was not, in those paragraphs, making impermissible use, in the construction of the Expansion Agreement, of events occurring after its execution. Rather, his Honour was seeking to explain the changing nomenclature used to describe the stages in the work to be performed as identified in the Expansion Agreement and in the Invitation to Tender. In my view, however, the parties have so misconstrued ss 760, 767 and 768 of the Workplace Relations Act 1996 (Cth) (the "WR Act") that the matter must go back for further consideration. My reasons focus upon the operation of s 760. That section provides:
A permit holder for an organisation may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions. For this purpose, eligible employee means any employee who:
(a) on the premises, carries out work that is covered by an award or collective agreement that is binding on the permit holder's organization; and
(b) is a member of the permit holder's organization or is eligible to become a member of that organization.
29 The issues numbered 4, 5, 6 and 7, identified at [24] in the primary Judge's reasons, are relevant to this aspect of the case. Those issues are as follows:
4. Do any of the Relevant Employees carry out work which is covered by the NAPSA, Metals Award or Construction Award? Can the NAPSA in any event apply to [John Holland]?
5. With respect to those Relevant Employees who were employed by [John Holland] at the time of Mr Ong's entry on 18 November 2008 [19 November 2008] and 13 February 2009, were any of those persons a member of, or eligible to become a member of the ETU?
[Note: [John Holland] concedes that there are Relevant Employees who were at least eligible to become a member of the CFMEU and/or the AMWU]
6. Are any of the Relevant Employees "eligible employees" of the CFMEU, AMWU and/or ETU for the purposes of s.760 of the WR Act?
7. Having regard to the answers to Questions 4, 5 and 6, did Mr Bradley, Mr Lowth, Mr Ong and/or Mr Robinson have a valid right of entry to the X50 work site on 18 November 2008, 13 February 2009, and/or 5 March 2009 pursuant to s.760 of the WR Act?
30 Pursuant to the "Agreed Definitions" at [24] of the primary Judge's reasons, "Relevant Employees" are employees of the first respondent ("John Holland") employed to perform work at the X50 work site. The "NAPSA" is the Electrical Contracting Industry Award 2003. The "Metals Award" is the National Metal and Engineering Onsite Construction Award 2002. The "Construction Award" is the National Building and Construction Award 2000. The "CFMEU" is the first appellant. The "CEPU" is the second appellant. The "AMWU" is the third appellant. The "ETU" is the Electrical Trade Union of Employees Queensland Branch Union, which is not a party to the appeal. Mr Bradley and Mr Lowth are officers of the AMWU. Mr Ong is an officer of the CEPU and the ETU. Mr Robinson is an officer of the CFMEU. I refer to these men as the "permit holders".
31 The primary Judge "answered" Issues 4 and 5 as follows at [88]-[89]:
88 … I am satisfied that no employees of John Holland had been or were conducting electrical work on the X50 work site having regard to the evidence of Mr Ingham and Mr Stokoe and the work plans and manning plans for the X50 work site managed by Mr Ingham. I am satisfied that at the time of Mr Ong's entry on 19 November 2008 and 13 February 2009 there were no employees of John Holland who were eligible to become members of the CEPU/ETU.
89 In any event, since the Workplace Expansion Agreement covers electrical work on the X50 work site, NAPSA has no application to any of the work carried out on the X50 work site. The evidence relating to the entries to site by the permit holders demonstrates that entry was for the purpose of enabling permit holders to speak with John Holland employees rather than the employees of contractors to John Holland.
32 As to Issue 6 his Honour found at [90]:
Having regard to the foregoing observations, none of John Holland's employees engaged in work at the X50 work site were "eligible employees" of the CFMEU, AMWU, CEPU/ETU for the purposes of s 760 of the Act. None of John Holland's employees can be said to have been carrying out work on the X50 work site covered by an award or collective agreement binding on the AMWU, CFMEU or CEPU/ETU whilst the Agreement applied to work carried out on the premises by those employees (s 349(1) of the Act).
33 As to Issue 7, his Honour concluded at [91]:
By reason of the application of the Workplace Expansion Agreement to work undertaken by John Holland employees at the X50 work site, Mr Bradley, Mr Lowth, Mr Robinson and Mr Ong did not have a valid right of entry to the X50 work site on 19 November 2008, 13 February 2009 or 5 March 2009.
34 This conclusion reflects the conclusion that the Expansion Agreement operated upon the workplace pursuant to s 349(1) so that there could be no relevant eligible employee at the X50 site. For that reason the various permit holders had no rights of entry.
35 In their submissions on appeal at para 42, the appellants submit:
This appeal ground asserts that Greenwood J erred in fact and in law:
(a) in holding that Messrs. Bradley, Ong, Lowth and Robinson did not have reasonable grounds for believing that entry to the site was authorized on 13 February 2009 under s 760 of the Act;
(b) in holding that Messrs. Bradley and Robinson did not have reasonable grounds for believing that entry to the site was authorized on 5 March 2009 under s 760 of the Act; and therefore
(c) in holding that Messrs. Bradley, Ong, Lowth and Robinson had contravened s 767(1) and s 768(1) of the Act 2006 on 13 February 2009;
(d) in holding that Messrs. Bradley and Robinson had contravened s 767(1) and s 768(1) of the Act 2006 on 5 March 2009.
36 Thus the appellants' argument, at least at one level, asserts reasonable grounds for believing that entry to the site was authorized pursuant to s 760 of the WR Act, implying that the existence of such grounds would be an answer to the alleged breaches of ss 767 and 768. It is convenient that I set out those sections. Section 767 provides:
A permit holder exercising, or seeking to exercise, rights:
(a) under section 747, 748 or 760; or
(b) …
must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
37 Section 768 provides:
(1) A person must not, in the circumstances mentioned in subsection (2), engage in conduct:
(a) with the intention of giving a second person the impression; or
(b) reckless as to whether a second person would get the impression;
that the first person, or a third person, is authorised by this Part to do a particular thing.
(2) The circumstances are:
(a) the first person or the third person (as the case requires) is not authorised by this Part to do that thing; and
(b) the first person knows, or has reasonable grounds to believe, that the first person or the third person (as the case requires) is not authorised by this Part to do that thing.
Section 760 makes no reference to reasonable grounds for any belief. The only relevant provision which refers to that concept is s 768(2)(b). That provision has no apparent relationship to either s 760 or s 767.
38 Section 760 authorizes entry by:
a permit holder;
who enters the premises "for the purposes of holding discussions with any eligible employees who wish to participate in those discussions".
39 The term "eligible employee" is defined. However authorization of entry pursuant to s 760 is not dependent upon satisfying that definition. The permit holder must rather satisfy the requirement that he or she have the required purpose. Establishment of, or challenge to the existence of such purpose may involve examination of whether there was an adequate factual basis for having the prescribed purpose. If, for example, the permit holder did not have some basis for a belief that there were eligible employees on the premises, then it may be difficult to conclude that he or she had the purpose of entering into discussions with people fitting that description. His or her purpose may rather have been to discover whether there were such people on the premises. Of course, a person may have more than one purpose. Authorization pursuant to s 760 is not dependent upon the permit holder having reasonable grounds for a particular belief.
40 At [91], the primary Judge dealt with the question of authorization, concluding that because of the operation of the Expansion Agreement the permit holders "did not have a valid right of entry to the X50 work site". This conclusion was based upon the finding that John Holland's employees at the X50 work site were not eligible employees. That finding, in turn, was based upon a finding that they were not carrying out work which was covered by an award or collective agreement which was binding upon the appellants. Such work was regulated by the Expansion Agreement to which those unions were not parties, and pursuant to which the operation of otherwise relevant awards was excluded. In my view, that was not the question posed by s 760. The relevant question was whether the permit holders had the prescribed purpose, which question was not addressed.
41 In the present case, s 767(1) will be engaged only if a permit holder is exercising, or seeking to exercise rights under s 760. If s 760 is not engaged (because the permit holder lacks the prescribed purpose) then there are no relevant rights for the purposes of s 767(1). In other words, s 767(1) regulates the way in which a person exercises his or her right of entry pursuant to s 760. Such an approach may be inconsistent with that taken by Merkel J in Pine v Doyle (2005) 143 IR 98 at [14]-[18]. His Honour concluded that a purported, but unlawful, exercise of a power of entry would engage a prohibition on hindering or obstructing in the exercise of a statutory power to enter. Although the distinction between a power and a right may be a narrow basis for distinguishing that decision, I am unpersuaded that a permit holder can be described as exercising, or seeking to exercise a right under s 760 if there is no such right because of the absence of the requisite purpose. I would, however, prefer to leave that question unresolved, largely because it has not been argued.
42 The hindrance or obstruction which, as the respondent asserts, was in breach of s 767(1) was hindrance of, or obstruction to Mr Ingham in the performance of his duties. See [148]. His Honour dealt further with that question at [175] as follows:
There is no doubt that Mr Ingham on both days was diverted from discharging his normal duties. He was called to the entry gate and was compelled to deal with the events of entry that the officials knew was the subject of John Holland's objection. He also sought to manage the events of entry by discouraging the officials from continuing to enter the site as they walked along the road towards the smoko or crib huts and by engaging the officials and requesting and/or ordering them to leave the site. Mr Ingham chose to wait with the officials until the employees had their break and chose to be present when the officials spoke to employees in the huts. His election to be present was a function of managing the consequences of unauthorized entry.
43 At [178] his Honour continued:
Although it is true that Mr Ingham was free to leave the gate and free to choose not to intercept the officials on the road and free to choose not to engage with the officials at the crib huts or be present during the course of their address to the employees, it is unrealistic to think that Mr Ingham would not maintain that degree of engagement on the act and consequences of entry, on behalf of John Holland. The permit holders must be taken to have been aware that entry on 13 February 2009 and 5 March 2009 would impede either Mr Ingham or others in a similar position to Mr Ingham within John Holland and in that knowledge they elected to enter the site.
44 At [179] his Honour concluded:
Accordingly, I find that the acts of entry by the permit holders on 13 February 2009 and 5 March 2009 in the manner found at [98] to [127] amount to a hindrance and obstruction of Mr Ingham in the conduct of his duties to John Holland. I find that the conduct was intentional in the sense that the conduct was unreasonable as the permit holders must be taken to have been aware that their conduct in entering the premises in all the circumstances described in these reasons was likely to impede Mr Ingham and nevertheless the permit holders elected to enter the site, progress to the crib huts and conduct meetings with employees of John Holland in the circumstances previously described.
45 The first difficulty with this approach is that the allegation of hindrance or obstruction depends upon the permit holders' entry to the site being unauthorized. If such entry was authorized by s 760, then Mr Ingham's conduct was simply his reaction to lawful conduct, presumably acting in accordance with his duty. Lawful entry can hardly constitute hindrance or obstruction for the purposes of s 767(1). Thus, whether the decision in Pine v Doyle is correct or not in the respect which I have identified above, the alleged hindrance or obstruction depends upon unauthorized entry. Assuming that the entry was unauthorized, but that s 767(1) was nonetheless engaged as found by Merkel J, it may still be arguable that there was no hindrance or obstruction. Merkel J reached that conclusion on facts which were similar to those in the present case. In any event the question of whether entry was authorized has not been addressed in accordance with s 760.
46 There is a further possible problem in the primary Judge's approach to s 767. The requirement that any hindrance or obstruction be intentional prima facie requires that there be a subjective intention to hinder or obstruct. It is not sufficient that the relevant conduct was willed and that the permit holder "must be taken to have been aware" of such hindering or obstructive effect. It may be sufficient that the permit holder acts, knowing that there will be a hindering or obstructive effect. It may also be possible to infer subjective intent from objective facts. However s 767 says nothing about deemed intention.
47 In considering s 768, it is convenient to commence with the circumstances prescribed in s 768(2). The case was conducted upon the basis that the relevant "thing" for the purposes of s 768(2)(a) was entry to the X50 work site. See the reasons for judgment at [95]. Whether such entry was authorized was to be answered by reference to s 760. As that question has not been resolved in accordance with s 760, the alleged breaches of s 768 have not been established. It is not necessary to consider s 768(2)(b) save to observe that it refers to reasonable grounds to believe that a relevant person was not authorized pursuant to Pt 15, and not to reasonable grounds for believing that such person was authorized.
48 As to s 768(1), the case appears to have been conducted on the basis that the relevant "second" persons were employees of John Holland, and that the union officials deliberately or recklessly gave the impression that they were authorized pursuant to Pt 15 to enter the site for the purpose of holding meetings with them. The primary Judge appears to have found an actual intention to that effect as required by s 768(1)(a), rather than recklessness as required by s 768(1)(b). His Honour also found that Mr Robinson and Mr Bradley had reasonable grounds to believe that they were not authorized pursuant to Pt 15 to enter the premises. However that finding probably reflects the erroneous approach to s 760 which I have previously identified.
49 The findings concerning the operation of the Expansion Agreement should stand. However all other questions concerning the alleged infringements of ss 767 and 768 should be remitted to the learned primary Judge for further consideration. This necessarily includes all questions relating to penalties.
50 I propose the following orders:
[22]
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
[23]
THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
[24]
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
[25]
LOGAN J
51 The background to these appeals lies in the entry onto the worksite known as the "X50 Expansion worksite" of the first respondent, John Holland Pty Ltd (John Holland) at the Abbot Point Terminal (the Terminal) north of Bowen of various officials of the appellant unions on 13 February 2009 and 5 March 2009. A sequel to these events was the institution in this Court by John Holland of penal proceedings in respect of alleged contraventions of ss 767(1) and 768(1) of the Workplace Relations Act 1996 (Cth) (WR Act). It was common ground before us, as it was before the learned trial judge, that, by reason of the operation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), the WR Act continued to apply, notwithstanding its repeal, to conduct which occurred prior to that repeal.
52 Whether those provisions of the WR Act had been contravened depended in the first instance upon whether an industrial agreement to which John Holland and the Australian Workers Union (AWU) were parties, the John Holland Pty Ltd - Abbot Point Coal Terminal Expansion Workplace Agreement 2008 (the Expansion Agreement), applied exhaustively to work performed by employees of John Holland at the X50 Expansion worksite. If that agreement did so apply then what are known as Bargaining Period Notices issued by the appellant unions on or about 20 November 2008 in relation to work at that worksite were invalid and of no effect. Thus, what also form part of the wider background to these appeals are rivalries between the appellant unions and the AWU in respect of representation of the industrial interests of employees working at that worksite.
53 Upholding the application made by John Holland, the learned trial judge found that the Expansion Agreement did apply exhaustively to work performed by employees of John Holland at the X50 Expansion worksite, with the necessary corollary that the Bargaining Period Notices were invalid and of no effect. His Honour made declarations accordingly. As a sequel to these declarations, His Honour imposed the following penalties:
(a) a penalty of $17,000.00 on the first respondent, the Construction Mining Forestry and Energy Union (CFMEU) in respect of contraventions by it of s 767(1) and s 768(1) of the WR Act arising out of the entry by one of its officials to the X50 Expansion worksite on 13 February 2009;
(b) a penalty of $15,000.00 on the second respondent, the Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (CEPU) in respect of contraventions by it of s 767(1) and s 768(1) of the WR Act arising out of the entry by one of its officials to the X50 Expansion worksite on 13 February 2009;
(c) a penalty of $16,000.00 on the third respondent, the Automotive, Food, Metals Engineering, Printing and Kindred Industries Union (AFMEU) in respect of contraventions by it of s 767(1) and s 768(1) of the WR Act arising out of the entry by one of its officials to the X50 Expansion worksite on 13 February 2009;
(d) a penalty of $23,000.00 on CFMEU in respect of contraventions by it of s 767(1) and s 768(1) of the WR Act arising out of the entry by one of its officials to the X50 Expansion worksite on 5 March 2009;
(e) a penalty of $23,000.00 on the third respondent, the AFMEU in respect of contraventions by it of s 767(1) and s 768(1) of the WR Act arising out of the entry by one of its officials to the X50 Expansion worksite on 5 March 2009.
His Honour further ordered, pursuant to s 841 of the WR Act, that each of these penalties be paid to John Holland.
54 The Australian Building and Construction Commissioner (ABC Commissioner) intervened both in the proceedings below and in the appeal, pursuant to s 71 of the Building and Construction Industry Improvement Act 2005 (Cth).
55 The appellant unions have appealed not only against the declaratory orders made in respect of the Expansion Agreement and the Bargaining Period Notices but also, in any event, against the penalties imposed upon them. The challenge as to the penalties is not just directed to their amount but also to whether any of the underlying contravention findings should have been made.
56 The grounds of appeal are prolix. For the purposes of the appeal the parties grouped them under broad subject areas. These were:
(a) The conclusion that the Expansion Agreement applied to work being undertaken at the X50 Expansion worksite - appeal grounds 1 to 5;
(b) The contravention findings - appeal grounds 7 to 12; and
(c) Level of penalty grounds - appeal grounds 13 to 27.
Ground number 6 in the notice of appeal was not pressed.
57 It is convenient to adopt the same approach as the parties to the appeal grounds for the purpose of determining the appeal.
[26]
Application of the Expansion Agreement
58 The evidence before the learned trial judge established and His Honour found in (Reasons for Judgment, para 75) the following facts.
59 The Terminal was owned by the Ports Corporation Queensland (the Ports Corporation) and operated by a company known as Abbot Point Bulk Coal.
60 The Ports Corporation was engaged in the progressive expansion of the coal loading capacity of the Terminal. It had two projects on foot directed to this end.
61 One, known as the "X25 Expansion Project", was being undertaken on the Western side of the Terminal. The expression "X25" was derived from the aim of that project, which was designed to increase the discharge capacity of the Terminal to 25 million tonnes per annum (Mtpa).
62 The other, now known as the "X50 Expansion Project", was designed further to increase the Terminal's discharge capacity to 50 Mtpa; hence the expression "X50". All of the work on the X50 Expansion Project was carried out on the Eastern side of the Terminal. The area concerned is marked by signs and designated by the Ports Corporation as the X50 work site.
63 At various planning phases, the Ports Corporation intended to undertake what was termed an "X30 Expansion Project". This later became part of and indivisible from the X50 Expansion Project. The works which had once been planned to be part of an "X30 Expansion Project" became part of the offshore works undertaken in the X50 Expansion Project. No area of the Terminal was ever, for example, signed as the "X30 work site".
64 The X50 Expansion Project works were governed by two contracts entered into between the Ports Corporation and John Holland. Of these, the only one relevant to the works being undertaken by John Holland on the X50 Expansion Project during the period in question was contract Q08-004.
65 Contract Q08-004 was not made until 29 July 2008, i.e. after the Expansion Agreement came into operation. It was though preceded by the issuing by the Ports Corporation on 21 December 2007 of an invitation (the invitation to tender) to short listed, pre-qualified companies, including John Holland, to tender for construction of off-shore works described in the letter as "the Marine Works". It provides that the Marine Works comprise the scope of works to be the subject of the proposed Contract Q08-004.
66 The learned trial judge regarded the invitation to tender as "contextually important" (Reasons for Judgment, para 30). His Honour set out a lengthy excerpt from it in his reasons for judgment. It is necessary to do likewise for the purpose of determining this appeal:
Abbot Point Coal Terminal
X30 Expansion
Marine Works
Contract No. Q08‑004
Invitation to Tender
1. Background
As you are aware, [PCQ] is undertaking a major expansion of its [Terminal] north of Bowen.
The terminal has recently been expanded from 15Mtpa to 21Mtpa throughput capacity with the completion of the X21 expansion. Further work proposed in 2008 will increase capacity still further to approximately 25Mtpa through:
Construction of a second rail receival dump station and in‑loading conveyor stream
Speeding up of existing yard conveyors and the existing out‑loading stream from its current 4,000tph to 6,000tph
This work is defined as the X25 expansion.
Contingent upon construction of the Northern Missing Link (NML) rail link between North Goonyella and Newlands, PCQ is now planning to expand its Abbot Point facility to 50Mpta. The next stage of this expansion comprises construction of the following works:
Upgrading of Dump Station DS1 and inloading Conveyors C101, C102 and C103
Construction of a second yard Conveyor C204 on Bund 2 and fourth Stacker/Reclaimer SR4
Construction of a third bund, Bund 3, yard Conveyors C205 and C206 and additional Stacker/Reclaimer machines SR5 and SR6
Construction of a second berth offshore, referred to as Berth No. 2 and associated shipping gallery Conveyor C335
Construction of a second Shiploader SL2
Construction of a second outloading stream, referred to as CL2
It is PCQ's intention that the onshore works will be undertaken under separate contracts. Accordingly, the scope of Contract No. Q08‑004 - Marine Works, broadly includes:
Scope of Contract No Q08‑004 - Marine Works
Construction of Berth 2 to the east of existing Berth 1, approximately 2.85km offshore, including skeletal steel wharf structure, shiploader strong point, berthing dolphins, mooring dolphins and access roadway
Construction of shipping gallery Conveyor C335 and associated drive tower
Construction of the second jetty Conveyor C334 complete, including all structural mechanical and electrical works associated with the outloading conveyor
Modifications at the head end of jetty Conveyor C334 within the existing transfer tower to permit both the existing jetty Conveyor C324 and the new jetty Conveyor C334 to feed each berth
…
Site access for erection will be available from 28 July 2008. Export of first coal over Berth 2 is required by 31 March 2010.
…
2. Description of the works
The proposed second berth, Berth 2, is shown in general arrangement Drawing No's 664‑4‑X30‑SK010 to SK014. The berth will be constructed to the east of the existing berth and broadly comprise the following features:
Western strongpoint connected via an access roadway to the existing C324 Drive Tower support platform
Skeletal steel wharf structure comprising piles, slotted headstocks and shiploader long travel rail girders, and including longitudinal anchor
Seven independent berthing dolphin structures
Mooring dolphins and interconnecting walkways
Precast concrete deck units on the strongpoint, wharf and wharf access roadway
The wharf also supports the wharf shipping Conveyor C335 over its entire length. The structural, mechanical and electrical works associated with this C335 shipping conveyor and C335 Drive Tower will also form part of the scope of works
In addition, the Marine Works Contract shall include the supply and installation of the 2.85km long jetty Conveyor C334. The 24 metre span conveyor gallery trusses will be supported from existing piled headstocks…
A long travelling, luffing, 7,200tph shiploader will also be located on Berth 2 as part of the X50 expansion. At this stage, the shiploader is not included in this Tender but PCQ may later include the supply and installation of the shiploader within the scope of the Contract.
67 The Invitation to Tender sets out at section 3 the scope of works the subject of the tender:
3. Scope of Works
The Scope of Works proposed in this Contract No. Q08‑004 broadly includes, but is not limited to, the following:
[27]
The Contravention Findings
106 Neither the AWU nor the ABC Commissioner made submissions concerning whether the learned trial judge had erred either in fact or law in making his contravention findings.
107 It is desirable to commence consideration of the merits of the grounds advanced by the appellant unions challenging the contravention findings by setting out the material parts of the text of the relevant provisions of the WR Act:
767 Hindering, obstruction etc. in relation to this Part
(1) A permit holder exercising, or seeking to exercise, rights:
(a) under section … 760; or
(b) …
must not intentionally hinder or obstruct any person, or otherwise
act in an improper manner.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 8 for enforcement.
768 Misrepresentations about right of entry
(1) A person must not, in the circumstances mentioned in subsection (2), engage in conduct:
(a) with the intention of giving a second person the impression;
or
(b) reckless as to whether a second person would get the impression; that the first person, or a third person, is authorised by this Part to do a particular thing.
(2) The circumstances are:
(a) the first person or the third person (as the case requires) is not authorised by this Part to do that thing; and
(b) the first person knows, or has reasonable grounds to believe, that the first person or the third person (as the case requires) is not authorised by this Part to do that thing.
(3) Subsection (1) is a civil remedy provision.
Note: See Division 8 for enforcement.
760 Right of entry to hold discussions with employees
A permit holder for an organisation may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions. For this purpose, eligibleemployeemeans any employee who:
(a) on the premises, carries out work that is covered by an award or collective agreement that is binding on the permit holder's organisation; and
(b) is a member of the permit holder's organisation or is eligible to become a member of that organisation.
108 The challenge made by the appellant unions to the contravention findings was said to be "confined to a challenge to His Honour's conclusion that the union officials did not have reasonable grounds for believing that entry to the site [on each of 13 February and 5 March 2009] was authorised" under s 760 of the WR Act. For reasons set out below, this formulation of the ground of challenge may be criticised. The ground does though, on any view, put forward a narrow basis of challenge. Further, in developing the submission in respect of that ground the appellant unions drew attention to particular paragraphs of the reasons of the learned trial judge. Those reasons, including the extracts which I set out below, took the form they did because the parties below chose to identify particular issues for his Honour's decision (see reasons for judgement, para 24). I make these observations because the inter-relationship between the provision which was called in aid as the basis upon which access was sought in November 2008 and in February and March 2009, s 760 of the WR Act, and the two provisions of that Act allegedly contravened, s 767 and s 768, gives rise to very particular elements for the establishment of a contravention of those sections. The parties having chosen at trial to formulate the issues for decision at trial in a specific way, to conduct their respective cases accordingly and then, on appeal, only to seek to agitate a narrow issue in relation to liability, I refrain from delving more widely into that inter-relationship than is necessary to resolve the ground of challenge. In so doing, I assume that the appellant unions accept that the elements of the contraventions are otherwise correctly or ought to be resolved against them.
109 An immediate difficulty with the generality of this description of the basis of challenge is that the existence of reasonable grounds for a particular belief is not, in terms, an element of a contravention of s 767(1) of the WR Act. Proof of intent is a necessary element of the proofs required in order to ground a contravention of s 767(1) for hindering or obstruction. The true basis of the challenge made in respect of the findings that s 767(1) had been contravened is revealed by the concluding paragraph of that part of the appellant unions' submissions directed to this group of appeal grounds (para 52). What is there stated is that, "the Court should find that the officials held an honest and reasonable belief that their conduct did not constitute a contravention of s 767(1) and s 768(1) of the WR Act". While this uncritical conflation of the two provisions is unfortunate, it is clear that the basis of challenge to the s 767(1) contravention findings is that the requisite intent could not be proved on the evidence because, on the evidence, the learned trial judge was obliged to conclude that there existed an honest and reasonable belief on the part of the union officials that their conduct was authorised.
110 Given that s 767(1) and s 768(1) were civil remedy provisions, the learned trial judge correctly approached the question of whether the alleged contraventions had been proved by reference to a civil standard of proof but paying due regard, as s 140(2) of the Evidence Act 1995 (Cth) required, to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. As his Honour's associated reference to Briginshaw v Briginshaw (1938) 60 CLR 336 attests, this subsection of the Evidence Act is a restatement of a well known passage (at 362) in the judgment of Dixon J (as his Honour then was) in that case, "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
111 It was conceded by the appellants unions at trial that the conduct of their respective officials, Messrs Bradley, Lowth, Ong and Robinson was at all times within the scope of their actual or ostensible authority as union officials. Messrs Bradley and Louth were officials of the AFMEU, Mr Ong an official of the CEPU and Mr Robinson an official of the CFMEU.
112 The appellant unions' submission particularly focussed upon paras 166, 169 and 170 of the reasons for judgment below. It was submitted that his Honour's factual conclusions that there was:
(a) an absence of any careful examination of the content of the agreement, including Appendix 1, and a proper assessment of the work covered by the agreement; and
(b) no focussed analysis by the Unions or their officials as to whether an objection by John Holland might be correct;
were either factually incorrect or unavailable on the evidence and should not have been made.
113 The appellant unions also submitted that John Holland's case in respect of the alleged contraventions by them had been based upon their vicarious liability for the actions of their respective officials on 13 February 2009 and 5 March 2009. It was then submitted that, "the conduct of the union or its 'reasonableness' (as distinct from the conduct of its four officials and its reasonableness) was never an issue in the proceedings" [sic]. As a consequence, so it was submitted, the unions had not led evidence:
(a) concerning the conduct of other officials except as to signed correspondence from Branch Secretaries to [John Holland] expressing opinions about the coverage of the [Expansion Agreement];
(b) of the examination, careful or otherwise, of the content of the agreement, including Appendix 1, and a proper assessment of the work covered by the agreement by any other officials;
(c) as to whether a focussed analysis by the unions or their officials as to whether the objection made by John Holland might be correct was made or otherwise.
From this also it was said to follow that the conclusions reached by the learned trial judge as described in the preceding paragraph were either factually incorrect or constituted a denial of natural justice.
114 It was further submitted that there had been no suggestion made on behalf of John Holland that views expressed in the responses from the unions to correspondence sent by it setting out why it was asserted that their officials had no right of entry did not genuinely reflect the views of the unions.
115 Yet further it was submitted that his Honour should have referred to an interlocutory judgment delivered by him on 25 March 2009, John Holland Pty Ltd ACN 004 282 268 v Construction, Forestry, Mining and Energy Union [2009] FCA 324 at [17] in which, so it was said, "being in possession of vastly more material than the officials ever had but including Appendix 1 to the Expansion Agreement) that there was an arguable case supporting the appellant unions' construction of the agreement".
116 I address the latter submission in relation to the interlocutory judgment first. The submission is nothing more than a rhetorical flourish. The task of the learned trial judge was to hear and determine the issues raised at the trial, having regard to the evidence which the parties chose to lead at trial, not at some anterior stage of proceedings. That the learned trial judge did not refer to the interlocutory judgment is only to be expected. It was, like the submission made to us concerning it, but a distraction.
117 So as to give appropriate context, consideration of the balance of the appellant unions' submissions concerning the contravention findings requires the provision of rather more detail as to the background facts and the reasons for judgment of the learned trial judge than the selective references in those submissions.
118 The events on the dates of the alleged contraventions must be viewed, as the learned trial judge correctly approached matters, and the parties for their respective own purposes urged, in light of events which had occurred the preceding year. Earlier in that year, the AFMEU, via Mr Bradley and the CEPU, via Mr Ong, had each sought to negotiate an industrial agreement with John Holland in respect of what they understood at the time to be the "X25" and the "X30" sites at the Terminal. In this they were unsuccessful. These gentlemen were also aware that, on 3 November 2008, John Holland had put a proposal to its employees engaged in tasks relating to the expansion of that terminal that the Expansion Agreement should be amended so as to delete reference to "X30" and insert reference to "X50" and that this proposal had not been accepted. Messrs Lowth and Robinson had a resultant, derivative knowledge of these matters from Messrs Bradley and Ong.
119 On 17 November 2008, Mr Bradley, on behalf of the AMWU sent to John Holland by facsimile a notice of his intention to enter its Abbot Point Project on 19 November 2008. Mr Lowth gave a like notice to John Holland that same day. Each purported to rely on s 760 of the WR Act and asserted that the notice to meet the requirements of s 738 of that Act (which is concerned with the form of entry notices). It is not necessary to determine whether either notice was in due form.
120 On 19 November 2008, Messrs Bradley, Lowth, Ong and Robinson sought to gain access to and did enter the "X50" work site at the Terminal. They did so notwithstanding having repeatedly been told by Mr Ingham, John Holland's Employee Relations Manager at the site, that they had no right to enter the site . The evidence established that there were at the time two separately fenced and signed construction sites at the Terminal, the "X25" site and the "X50" site and no "X30" site. The union officials eventually left the site after the Queensland Police attended following a call from a Ports Corporation official.
121 The following day, each of the appellant unions gave to John Holland what purported to be a notice to initiate a bargaining period under s 423 of the WR Act in respect of a proposed union collective agreement in relation to the "X50 Project". In relation to this aspect of the appeal, it does not matter that each of these notices, in light of the true construction and application of the Enterprise Agreement, was invalid.
122 Thereafter, exchanges of correspondence occurred between John Holland or, as the case may be, its solicitors and the appellant unions on the subject of the existence or otherwise of a right of entry by officials of the unions to the "X50" site both on 19 November 2008 and later on 13 February 2009. For the unions, the active respondent author to John Holland was the State Secretary of the AMWU, Mr Dettmer. His assertion, made initially in correspondence dated 26 November 2008, was that entry was authorised pursuant to s 760 of the WR Act. John Holland's consistent response, first made by a letter dated 8 December 2008, was that the Expansion Agreement governed the employment of all persons on the Expansion Project, that the union was not a party to this agreement and that, accordingly, s 760 provided no lawful authority for any entry by an official of that union. On the true construction and application of the Expansion Agreement the position advanced by and on behalf of John Holland in relation to s 760 was correct. Again though, in relation to this aspect of the appeal, that this was the correct position in law is not sufficient to determine the related grounds against the appellant unions.
123 It is against this background that the following excerpt from the reasons for judgment of the learned trial judge should be understood. This excerpt contains his Honour's reasons for his conclusion that s 768(1) of the WR Act had been contravened by each of the appellant unions.
160 Notwithstanding that response, Mr Bradley and Mr Lowth on behalf of the AMWU served notices in reliance upon ss 738 and 760 of the Act for entry to the site on 13 February 2009. Mr Ong and Mr Robinson also served notices in reliance on those provisions for entry on 13 February 2009. On 12 February 2009, the solicitors for John Holland wrote to Mr Dettmer referring to the earlier letter of 3 December 2008. The letter describes the entry notices of Mr Bradley and Mr Lowth as "purported notices" and makes the point that the Agreement comprehensively prescribes conditions of employment of work performed by John Holland's employees at the Abbot Point Coal Terminal. The letter of 12 February 2009 is addressed to a "skilled addressee". Mr Dettmer is very experienced and an impressive Union official. Mr Sasse's letter would, in the ordinary course, have put Mr Dettmer on reasonable enquiry about whether the Agreement had the effect of covering work undertaken by John Holland at the Abbot Point Coal Terminal, as contended by Mr Sasse and John Holland. Mr Dettmer could only reasonably determine that question by looking at and considering the description of the work covered by the Agreement itself as set out in Appendix 1 and asking himself whether that work was the work being done on site at the moment of entry. That was the analytical leadership that was required by the permit holders and officers of the Unions demanding to enter the premises and therefore rejecting John Holland's objections. Had enquiry been made, those enquiries would most likely have revealed PCQ's abandonment by March 2008 of the phased X30 and X35 expansions in favour of an X50 expansion, the subsuming of the Appendix 1 work within an X50 expansion and the carrying out of that work on a site described as the X50 work site.
161 A similar letter was written by Mr Sasse to the CFMEU and the CEPU.
162 The CEPU responded by asserting that the Agreement applied at PCQ's Terminal X25 and X30 expansion but did not apply to the X50 project. Mr Dettmer took the same position in his letter of 13 February 2009.
163 The four officials entered the site on 13 February 2009. Mr Ingham maintained the position that the officials had no right of entry and made that position plain to them again. Mr Ingham asserted that position to the employees at the meeting that day. Mr Ingham notes the content of what was said to the employees in the meetings. The officials told the employees that there was no agreement in place for the site, they had a right of entry and the Unions would fight for an agreement and pursue John Holland industrially and legally.
164 When Mr Bradley entered the site on 13 February 2009, he placed particular emphasis upon the consideration that X50 was a label or term not used in the Agreement. Mr Bradley accepted that in general terms in determining whether employees fall within the rules of coverage of the Union, the first thing to do is to look at the work the men or women are performing and compare that work or those duties with an award which covers members of Mr Bradley's Union. Mr Bradley believed that the Agreement did not apply because there was separate signage to a separate area and John Holland had attempted to amend Appendix 1 to the Agreement. Mr Bradley placed particular emphasis upon the separate signage as a differentiating factor. Mr Bradley accepted that he elected to enter the X50 work site in knowing defiance of John Holland's position simply on the basis of the sign at the front of the work site and the proposed variation. He had no evidence before him that any work other than Appendix 1 work was being carried out at the X50 work site.
165 Mr Ong believed that X25 and X30 was a different site or a different place and although John Holland asserted that the officials had no right of entry, the officials disagreed with that position. Mr Hatcher asked Mr Ong whether he had a look at the scope of works in the Agreement to determine whether that work was being done on the X50 work site. Mr Ong said that he looked at the title of the Agreement which showed that the scope of works covered X25 and X30 (see clause 4.1). Mr Hatcher put to Mr Ong that it was not Mr Ong's usual practice to determine whether an industrial instrument applies to members of the CEPU by just looking at the title. Mr Ong agreed that the proper course was to determine whether an agreement applies to CEPU members by its coverage and whether the CEPU is a party to the Agreement. Mr Ong in cross‑examination with Mr Herbert pressed his position that he assumed that the site was divided up and that an agreement had been reached with the AWU as to X25 and X30 and that the CEPU had an opportunity to enter into an agreement with respect to X50. Mr Robinson did not look at the Agreement at all. Nor did Mr Lowth. Mr Dettmer gave evidence of good or best industrial practice and agreed that when a party contends that an agreement applies and the claim is seriously pressed with the threat of legal action, the basis for that claim is something that needs to be enquired into and ought not to just be ignored, for the reason that the claim may be good or bad and the merits of the position should be determined. Mr Dettmer said that he looked at the Agreement but he did not read Appendix 1, which sets out the scope of work the employees would be undertaking on the site to be entered.
166 In the absence of any careful examination of the content of the Agreement, including Appendix 1, and a proper assessment of the work covered by the Agreement so as to inform a person's judgement as to whether the work being undertaken on the X50 work site was within the field of that work, the conduct of entering the X50 work site in purported reliance upon s 760 of the Act to conduct discussions with employees of John Holland was not reasonable. On 13 February 2009, the Union officials had reasonable grounds before them for believing that entry to the site was not authorised.
167 The Abbot Point Coal Terminal is a significant coal loading facility for the export of coal. There is a Workplace Expansion Agreement between the employer, its employees and the AWU which provides for terms and conditions of employment in the performance of work. Entry to such a site by Union officials, who assert a right to engage with employees in the context of encouraging them to the view that the relevant officials might seek to establish another agreement, fly‑in/fly‑out terms or the formulation of a new log of claims, with the resultant potential for dislocation of a settled industrial situation, ought reasonably to only occur in circumstances where those officials and their Unions have reached a considered view about the right of entry after having carefully assessed the claim by the employer that the officials have no right of entry. The election to rely upon a descriptive label or a separate sign or a proposed amendment to Appendix 1, without looking carefully at the Agreement and Appendix 1 to understand clearly the scope of work it covered, is plainly unreasonable conduct.
168 On 27 February 2009, Herbert Geer sent a lengthy letter to the CFMEU, AMWU and CEPU setting out in 20 pages a detailed analysis of the view that work undertaken by John Holland employees at the X50 work site is covered by the Agreement.
169 Notwithstanding that letter, Mr Bradley and Mr Robinson served further notices of entry for 5 March 2009. Mr Robinson and Mr Bradley agreed that they had seen the letter. The inference is that Mr Robinson and Mr Bradley elected to enter the site on the footing that they disagreed with that letter. However, Mr Robinson agreed that he did not look at the Agreement. He could not have carefully considered the letter in the context of the Agreement. Mr Lowth agreed that although he knew from November 2008 that all of his members were being paid under the Agreement, he did not look at the Agreement either. Mr Dettmer did not read Appendix 1 to the Agreement. There was simply no focused analysis by the Unions or their officials as to whether the objection made by John Holland might be correct. The clear inference is that the Unions and their officials had already determined that the reference in the Agreement to X25 and X30 necessarily meant that the Agreement could not apply to work done on the X50 work site.
170 Whether a person has reasonable grounds to believe that entry is not authorised involves an objective assessment of whether facts were before that person sufficient to induce a reasonable person to believe that grounds existed for denying authority to enter. That view is consistent with the approach to the notion of "reasonable grounds" in George v Rockett (1990) 93 ALR 483 and Rema Industries and Services Pty Ltd v Coad & Ors (1992) 107 ALR 374. In determining whether reasonable grounds for a belief exist, there is a relationship between the objective facts that must engender such a belief and the role, standards and duties of the person confronting the relevant facts. In this case, the officials are permit holders under the Act and Mr Dettmer is an experienced State Secretary of the AMWU. In the face of an employer's objection to entry in the manner of 19 November 2008 and correspondence from the employer pressing that objection, a permit holder and the Unions as organisations, must necessarily give consideration to the merits of the employer's claims and form a view as to whether the claims are well placed or not. If the Unions and the permit holders are satisfied that the claims are misplaced, the demonstrated consideration of the claims is very likely to suggest that the relevant person when seeking to enter the site had reasonable grounds for believing that entry was authorised even though events may subsequently demonstrate that entry was not authorised. Persons in the position of permit holders or officers of Unions cannot be said to have acted reasonably in the absence of reasonable investigation and enquiry into objections made and strongly pressed denying the very right of entry relied upon by those seeking entry. That follows because statutory rights of entry to premises carry with the exercise of those rights corresponding duties of enquiry to be reasonably satisfied that entry is authorised in the context of the facts and circumstances before the entry seeker. That corresponding duty is not only a function of a balance between rights and obligations but derives from Part 15 of the Act, the objects recited in s 736 of the Act and the regime established for granting permits to enter.
[Emphasis in original]
124 The reasons why the learned trial judge concluded that each of the appellant unions had contravened s 767(1) of the WR Act are contained in the following excerpt from his reasons for judgment:
176 I accept that the Union officials did not enter the X50 work site on 19 November 2008 with the intention of hindering or obstructing Mr Ingham or other employees of John Holland. At that time, the officials thought that X25 and X30 meant something different from X50 and they believed John Holland had attempted to change Appendix 1 to introduce a reference to X50. I accept that in a practical sense the understanding of each permit holder that John Holland had taken steps on 3 November 2008 to propose a change to Appendix 1 to introduce a reference to X50 must have suggested to them and reinforced in their mind that John Holland thought the Agreement did not apply to the expansion work on the X50 site. They still thought that when they entered the site on 13 February 2009 because they continued to act on assumptions they had made. However, by 13 February 2009, John Holland had repeatedly made its strong objections clear on 19 November 2008 and correspondence asserting its position had ensued. The officials had not considered the content of the work described in Appendix 1 to the Agreement. Nevertheless and notwithstanding Mr Dettmer's acceptance that good practice required an examination of John Holland's claims, the officials entered the site on 13 February 2009 and 5 March 2009 without making enquiries that would have been likely to reveal the subsuming of the Appendix 1 work within the X50 Expansion adopted by PCQ.
177 The question then is whether the officials are to be taken to intend the natural consequences of their conduct. It must have been plain to the officials that a senior officer of John Holland would be compelled to respond to the events of entry on those days by dealing with the men at the gate, engaging with the men as they continued to walk towards the crib huts and by engaging with them at the crib huts. The officials may not have intended to substantially impede Mr Ingham from performing any of his duties in the ordinary way but equally, they must have been aware that what they were doing by entering the site, progressing along the road and seeking to convene meetings with the employees, was likely to impede Mr Ingham in the course of his normal duties due to the chronology of events. Yet, the officials nevertheless decided to enter the site and continue to maintain a presence on the site until they had completed the things they perceived they were entitled to do. It is unrealistic to think that Mr Ingham in the context of John Holland's claims, objections and correspondence would simply leave the site to the officials and not engage with them on their right of entry in circumstances where John Holland viewed the matter sufficiently seriously that it would take proceedings about it. Accordingly, it seems to me that the officials must be taken to have intended the natural consequences of their conduct of entry in circumstances where they had not investigated carefully the merits of John Holland's position and they knew John Holland held strong objections.
178 Although it is true that Mr Ingham was free to leave the gate and free to choose not to intercept the officials on the road and free to choose not to engage with the officials at the crib huts or be present during the course of their address to the employees, it is unrealistic to think that Mr Ingham would not maintain that degree of engagement on the act and consequences of entry, on behalf of John Holland. The permit holders must be taken to have been aware that entry on 13 February 2009 and 5 March 2009 would impede either Mr Ingham or others in a similar position to Mr Ingham within John Holland and in that knowledge they elected to enter the site.
179 Accordingly, I find that the acts of entry by the permit holders on 13 February 2009 and 5 March 2009 in the manner found at [98] to [127] amount to a hindrance and obstruction of Mr Ingham in the conduct of his duties to John Holland. I find that the conduct was intentional in the sense that the conduct was unreasonable as the permit holders must be taken to have been aware that their conduct in entering the premises in all the circumstances described in these reasons was likely to impede Mr Ingham and nevertheless the permit holders elected to enter the site, progress to the crib huts and conduct meetings with employees of John Holland in the circumstances previously described (Pine v Doyle (supra); Leonard v Morris (1975) 10 SASR 528). Accordingly, I am satisfied that contraventions of s 767(1) occurred on 13 February 2009 and 5 March 2009.
125 No challenge is made by the appellant unions to his Honour's conclusion that, in the events which transpired on each of 13 February and 5 March 2009 there had been hindrance and obstruction of Mr Ingham in the conduct of his duties as an employee of John Holland. The area of contest is whether his Honour erred in finding that this hindrance or obstruction had been intentional.
126 John Holland's response to the appellant unions' submission in relation to this aspect of the appeal was terse. It submitted that, "even a cursory review of the evidence reveals that the appellants were aware that the agreement was intended to cover the expansion works, and in particular the marine works, that they had no regard to the actual work being done; and that the only basis upon which they contended that they had a right of entry was the absence of a sign declaring the works to be the X30 worksite." To this John Holland added, "The Appellants' adherence to this contention persisted in the face of a concession that it is commonplace in industrial situations that the title of an agreement will not reflect the coverage of that agreement."
127 So far as s 768 of the WR Act is concerned, the recourse by the learned trial judge to George v Rockett (1990) 170 CLR 104 for guidance in relation to the import of the reference in s 768(2)(a) to "reasonable grounds" was apt. It is the leading Australian authority. In the joint judgment in that case it is stated (at 112), "When a statute prescribes that there must be 'reasonable grounds' for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person." and later (at 116), in contrast with grounds for a "suspicion", "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture." Having regard to what is stated in George v Rockett, the view of the learned trial judge as to the meaning of "reasonable grounds", expressed in para 170 of his reasons for judgment, is unobjectionable. The ABC Commissioner aptly drew attention to this case in his submissions.
128 It was a necessary inference on the evidence that the appellant unions were, on 19 November 2008, 13 February 2009 and, as then to two of them only, on 5 March 2009, acting in concert. It was also conceded that, on each of these days, none of their officials who sought entry to the X50 site was on a frolic of his own. It was another necessary inference, insofar as it was not in any event the subject of explicit admission, that these officials were so acting on the instructions of their superiors in each union. Of those superiors, only Mr Dettmer gave evidence.
129 The submission of the appellant unions, made in respect of each union, that, "the conduct of the union or its 'reasonableness' (as distinct from the conduct of its four officials and its reasonableness) was never an issue in the proceedings" is wrong. The conduct of each union was always in issue. Each of the appellant unions was a body corporate. John Holland sought to prove that each union had contravened s 767(1) and s 768(1) by reference to the conduct of the officials on 13 February and 5 March 2009. Their conduct was conceded to be that of their respective unions. Each union might have sought to adduce evidence as to the basis upon which each official came to be directed on its behalf to seek access to the X50 site. All that they chose to lead was the evidence of those officials, the notices given and other correspondence sent to John Holland and the evidence of Mr Dettmer. That they chose not to lead evidence of the kind described in para 63(a) above, was nothing more than the product of a forensic value judgement which they and their advisers made. In the face of the evidence which was led, both by John Holland and the unions, the learned trial judge had to determine whether the contraventions were proved to the standard dictated by the application of s 140(2) of the Evidence Act. That, in so doing, the learned trial judge observed of that evidence that it revealed:
(a) an absence of any careful examination of the content of the agreement, including Appendix 1, and a proper assessment of the work covered by the agreement; and
(b) no focussed analysis by the Unions or their officials as to whether an objection by John Holland might be correct
was nothing more than an expression of his views on the state of the evidence, not a denial of natural justice.
130 The real issue in the appeal insofar as it relates to the s 768(1) contravention findings is whether, for the reasons which the learned trial judge gave, it was open to him to conclude that each union had been shown to have reasonable grounds to believe that it was not, by its official(s), authorised to access the X50 site.
131 The position as at 13 February 2009 and again on 5 March 2009 was qualitatively very different to that which prevailed on 19 November 2008. By those dates each of the unions had the benefit not just of Mr Ingham's initial and persistent insistence on 19 November 2008 that there was no right of access under s 760 of the WR Act and the experience of there being on the ground but two, separately signed "X25" and "X50" expansion project construction sites at the Terminal (and no "X30" site) but also the benefit of considered correspondence by or on behalf of John Holland on that subject. That there was no signed "X30" site did not then support the existence of reasonable grounds any more than did the knowledge that the employees had rejected a proposal to amend the Expansion Agreement so as to refer to "X50" instead of "X30". Rather, in the face of the correspondence received after 19 November 2008, these were additional factors which ought to have put the unions on notice that the basis for persistence in seeking entry was tenuous. It appears that the level of scrutiny of the Expansion Agreement on the part of the union officials who sought entry or the only superior who gave evidence never involved reference to the tasks described in Appendix 1 or to the division of those tasks as between what was termed in that agreement the "X25" site and the "X30" site. There were two sites mentioned in the agreement, two on the ground and tasks being performed at each which corresponded with those referred to in the Expansion Agreement. Each union accepted that what it took to be the "X25" site was covered by the Expansion Agreement. The co-existence of elaborate, separate task descriptions in respect of another site in the Expansion Agreement and the fact that, on the ground at the Terminal there but two expansion project sites did not, on the evidence, raise an interrogative note on the part of the appellant unions. In the circumstances prevailing after 19 November 2008 it should have. There was no evidence of any detailed endeavour between 19 November 2008 and 5 March 2009 by the appellant unions to ascertain whether any task remained at the "X50" site which was not described in the Expansion Agreement. .
132 In reaching a conclusion on the subject of reasonable grounds the learned trial judge was entitled to have regard to (and did) to the fact that the persons who accessed the sites on the days in question were union officials, not mere laypersons. Necessarily, each such official must be taken to have known that he was an official of a union which was not a party to the Expansion Agreement.
133 Obstinacy and bald assertion are not to be equated with the existence of reasonable grounds. The conclusion of the learned trial judge that none of the appellant unions had reasonable grounds to believe that, by its official(s), it was entitled to access the "X50" site at the terminal either on 13 February or 5 March 2009 was one reasonably open to him on the evidence, even taking into account "Briginshaw" considerations.
134 In his submission, the ABC Commissioner put forward that the scheme of the WR Act in relation to the granting of access permits was such that it additionally operated to require the taking of steps by the appellant unions to ascertain entry rights. It is evident from para 170 of his Honour's reasons for judgment that a like submission was made to him at trial by the ABC Commissioner and that he accepted it. A permit holder is expressly mentioned in s 767(1) of the WR Act but not in s 768 of that Act. In neither provision nor elsewhere in that Part of the WR Act (part 15) directed to the subject of "Right of Entry" is there expressed a requirement of the kind for which the ABC Commissioner contended. Given its nature, one might have expected any such differentiation to be explicit rather than implicit. Contrary to the learned trial judge, I do not regard the WR Act as having the effect contended for by the ABC Commissioner. That is not to say that it is not relevant to take into account, in determining the existence of reasonable grounds, that the person concerned is a permit holder, not a layperson. That is a relevant part of the factual matrix against which the determination as to whether there exist reasonable grounds falls to be made. It follows that, though I disagree with this aspect of his Honour's reasons, that makes no difference to a conclusion that the finding of fact which he made was one open to him on the evidence.
135 As to the finding that s 767(1) had been contravened, the right of access which each official sought to exercise was one under s 760 of the WR Act. For reasons already given, no such right existed. Nor, for reasons already given, did reasonable grounds exist to believe that there was any such right.
136 In O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 49-50 Mason, Murphy, Brennan and Deane JJ stated, in relation to the offence of obstructing a taxation officer in the discharge of his duties:
Whether the particular conduct amounts to obstructing or hindering an officer acting in the discharge of his duty is a question of fact in the particular case. It is, however, relevant to mention that conduct which is essentially negative in character may, in some circumstances, constitute such obstruction or hindrance.
In Pine v Doyle (2005) 143 IR 98, a case referred to by the learned trial judge, Merkel J concluded on the facts of that case that a building supervisor who chose, voluntarily, to follow around a work site a union official purporting to exercise a statutory right of access had not been obstructed or hindered by that official. Had the allegation in this case been directed to the whether there had been hindrance or obstruction on 19 November 2008, the answer to that question may very well necessarily have been the same as that given by Merkel J in that case. This case though had a different focus. Whatever might have been the case in the first instance on 19 November 2008, a later reassertion of a right of access, in circumstances when, by then, there is no reasonable ground to believe that there is any such right can, in the circumstances refereed to and for the reasons given by the learned trial judge at para 178 of his reasons for judgment, quoted above, constitute hindrance, if not further or alternatively obstruction, of another. It was open to conclude in these particular circumstances that to persist in seeking such access was intentionally to obstruct or hinder Mr Ingham.
137 It follows that, insofar as it concerns the findings of liability in respect of the contraventions of s 767(1) and s 768(1) of the WR Act, the appeal fails.
[28]
Penalty Issues
138 The learned trial judge addressed the subject of penalty in a separate judgment, delivered as a sequel to the conclusions which he reached in respect of the alleged contraventions.
139 The appellant unions, rightly, accepted that they had to show more in respect of the penalties imposed that another judge, approaching sentencing afresh might have imposed a different penalty; rather, they had to show one or more errors of principle in respect of a discretionary value judgement, errors of the kind described in House v The King (1936) 55 CLR 499 at 504-505 and Construction, Forestry, Mining and Energy Union v Williams (2010) 262 ALR 417 at [8].IIn summary the challenges made by the appellant unions to the penalties imposed upon them were as follows:
(a) it was not open to take into account the prior contraventions of some of them of other, unrelated, provisions of either the WR Act or other Acts;
(b) it was not open, in the case of the CFMEU, to take into account prior contraventions of other Divisions or Branches of that union;
(c) in any event, these prior contraventions had not been given "proper consideration or assessment";
(d) it was not open to take into account Mr Bradley's individual convictions on 30 July 2003 for unlawful assembly on 15 June 2001 at the premises of two particular employers;
(e) the absence of inquiries of the Ports Corporation by the appellant unions of the fate of either the "X30" expansion project or for that matter of the fate of another such project known as the "X35" expansion project;
(f) that his Honour erred in taking into account that the appellant unions might have sought in this Court relief as to the existence or otherwise of a right of access to the X50 site;
(g) in relation to the CFMEU and the AFMEU, that his Honour erred in failing to conclude that they had not engaged in a single course of conduct;
(h) that it was not relevant to take into account that only two, rather than each, of the appellants had been involved in the contraventions of 5 March 2009;
(i) that the level of penalties imposed on each of the appellants was manifestly excessive.
140 The AWU did not seek to be heard in relation to penalty issues.
141 The correct position in relation to the relevance of prior convictions is, as the ABC Commissioner submitted, as stated by Dowsett J in Temple v Powell (2008) 169 FCR 169 at [64]:
[64] The respondents submitted that "... prior contraventions of industrial legislation per se should not be taken into account when assessing prior conduct. What should be relevant is prior breaches of provisions which contain the same elements in the case under consideration". I do not accept that proposition. On the criminal side, it has never been suggested that only previous convictions for offences similar to that charged are relevant to sentence. Rather, a sentencing court looks to the general record of conduct of the relevant offender, his or her attitude to the law as disclosed by such conduct, apparent attempts at rehabilitation and similar considerations. Repeated conduct of a particular kind may lead to an identified need to provide some particularly persuasive form of deterrent against similar future misconduct.
Insofar as it was suggested by Le Miere J in Leighton Contractors v CFMEU (2006) 164 IR 375 at [67], a case relied upon by the appellant unions, that a sentencing court should not look to past contraventions of a different character, that decision is inconsistent with the statement of the High Court in Veen v R (No 2) (1988) 164 CLR 465 at 477 that, "the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed". To this the High Court added the following cautionary note in that case (ibid), "but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences." No different principle than this attends the relevance of past contraventions in civil penalty proceedings under the WR Act.
142 There is an unarticulated but heretical premise which underpins the submission of the appellant unions in relation to prior convictions. A Division or Branch of a federally registered industrial organisation is not, as the appellant unions' submission seemed to assume, a legal entity separate from the organisation of which it is a constituent part: Re McJannet; ex parte Minister for Employment, Training and Industrial Relations (1995) 184 CLR 620.
143 A past contravention of a registered organisation arising from the conduct of an official assigned to a particular Division or Branch of that organisation is just that. That is so also even if that conduct giving rise to that past contravention occurred in a State or Territory other than that giving rise to the instant case which falls for assessment of penalty. This remains the position in law even if, for its own reasons, a registered organisation chooses to administer itself in a way which affords substantial autonomy to a particular Division or Branch. That, too, is a fact relevant to take into account in deciding whether or in what amount a penalty ought to be imposed. Further, it may not necessarily be a factor which tells in mitigation. That a Division or Branch has been allowed to operate without adequate supervision may instead be a factor of aggravation in relation to the penalty to impose on the organisation.
144 That one of the officials who had asserted a right of access, Mr Bradley, had in the past been found guilty of unlawful assembly in circumstances arising from access as a union official to the worksites of other employers was a relevant consideration to take into account in relation to the AFMEU. It is true that the penalty fell for imposition on the union but a union must necessarily act via human agents. The antecedents of that agent may well be relevant to an assessment of the degree of culpability of the union for that agent's behaviour.
145 The learned trial judge (at para 19) regarded the following as considerations relevant to the imposition of penalty in this case:
1. The structure of the statutory regime including the nature of the civil penalty provisions and the statutory context and purpose of the legislation.
2. The elements of the contravening conduct.
3. The circumstances in which the conduct took place.
4. Whether the contraventions formed part of one course of conduct or whether the events of 13 February 2009 and 5 March 2009 are to be treated as separate events exhibiting discrete features.
5. The place where the conduct occurred, and the nature of the facility that the officials sought to enter.
6. The "counter‑factual", that is, the steps that might reasonably have been adopted by the Unions rather than entry to the premises on 13 February 2009 and 5 March 2009 and whether those steps would have avoided the contravening conduct or would have been likely to avoid the contravening conduct.
7. The position and experience of the individual officials involved in the contravention.
8. The consequences of the conduct.
9. The need for either general or specific deterrence.
10. Whether a respondent has previously engaged in a contravention of the civil penalty provisions (or either of them) the subject of these proceedings.
11. Whether a respondent has previously engaged in a contravention of a provision of the Act which reflects either the statutory purpose of the provisions in issue or other provisions of the Act which reflect the essential character of the provisions contravened on 13 February 2009 and 5 March 2009.
146 To treat each of these as relevant in the circumstances of this case was fully in accord with the detailed analysis of penalty considerations offered by Branson and Lander JJ in their joint judgment in Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357 at [57] - [62]. His Honour also appropriately acknowledged and had regard to the totality principle in determining the level of penalty to impose.
147 Section 719 of the WR Act materially provided:
719 Imposition and recovery of penalties
(1) An eligible court may impose a penalty in accordance with this Division on a person if:
(a) the person is bound by an applicable provision; and
(b) the person breaches the provision.
(2) Subject to subsection (3), where:
(a) 2 or more breaches of an applicable provision are committed by the same person; and
(b) the breaches arose out of a course of conduct by the person; the breaches shall, for the purposes of this section, be taken to constitute a single breach of the term.
(3) Subsection (2) does not apply to a breach of an applicable provision that is committed by a person after an eligible court has imposed a penalty on the person for an earlier breach of the provision.
(4) The maximum penalty that may be imposed under subsection (1) for a breach of an applicable provision is:
(a) 60 penalty units for an individual; or
(b) 300 penalty units for a body corporate.
148 Analogous "course of conduct" provisions are to be found in predecessor federal industrial relations legislation. Though he noted differences in language as between s 719 of the WR Act and such earlier provisions, Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14 at 17 at [11], correctly in my respectful opinion, considered that the following observation of Gray J in Gibbs v The Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216 at 223, made in respect of the then s 178 of the Industrial Relations Act 1988 (Cth), provided an accurate guide to the meaning and effect of s 719(2) of the WR Act:
The object of s 178(2) appears to be that a party bound by an award and pursuing a course of conduct involving repeated acts or omissions, which would ordinarily be regarded as giving rise to a series of separate breaches, should not be punished separately for each of those breaches. If such a party has pursued a course of conduct which gives rise to breaches of several different obligations, there is no reason why it should be treated as immune in respect of its breach of one obligation, merely because it has acted in breach of another. This reasoning leads to the conclusion that each separate obligation found in an award is to be regarded as a "term", for the purposes of s 178 of the Act. The ascertainment of what is a term should depend not on matters of form, such as how the award maker has chosen to designate by numbers or letters the various provisions of an award, but on matters of substance, namely the different obligations which can be spelt out. For these reasons, I incline to the view that each separate obligation imposed by an award is to be regarded as a "term", for the purposes of s 178 of the Act. If the different terms impose cumulative obligations or obligations that substantially overlap, it is possible to take into account the substance of the matter by imposing no penalty, or a nominal penalty, in respect of breaches of some terms, but a substantial penalty in respect of others.
149 The appellant unions' submission was that, in the circumstances, the learned trial judge ought to have concluded, in respect of the CFMEU and the AFMEU, that they had engaged in but one course of conduct and imposed but one penalty on each.
150 The essence of the reasoning of the learned trial judge on this subject is to be found in the following passage in his penalty judgment:
61 There were two separate events. Two of the Unions rather than all three were involved in the second entry. On 27 February 2009, an intervening event occurred by reason of the letter setting out a detailed analysis of the reasons supporting John Holland's view that s 760 did not authorise entry. Although Mr Ingham was hindered and obstructed on both occasions, the officials did not engage in conduct which was focussed upon a particular individual. Although there is a progression through three phases of entry, there are fault lines between each event of entry which give the acts of entry on 13 February 2009 and 5 March 2009 particular separation.
62 I am conscious of the discussion of the principles directed to whether a number of events might be treated as one course of conduct. I particularly note the discussion in Pearce v The Queen (1998) 194 CLR 610 at [40] and Hamberger v Construction Forestry Mining & Energy Union [2002] FCA 585 and the important distinction between the principles relating to a course of conduct and the application of the totality principle (Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 per Stone and Buchanan JJ at [41] to [58]. In Hamberger, Cooper J noted that the conduct which had occurred on 29 January 1999 and 26 February 1999 (about a month apart) was focused upon the removal of a particular person from a site because he would not join an industrial association. The conduct was unified by a common purpose and on each occasion directed to a particular individual. Accordingly, Cooper J treated the incidents as having arisen in a single course of conduct. His Honour noted that although part of a single course of conduct and thus not attracting a separate penalty in respect of each separate contravention, the persistence in the conduct over time was a circumstance of aggravation in assessing the culpability of the conduct viewed as a whole.
63 It seems to me that the conduct in question in respect of the contraventions in issue in this case and the circumstances of the conduct reflect significant differentiating circumstances rather than simply unifying common conduct. As the officials became conscious of the strongly disputed claims to a right of entry, the officials and through them their Unions had an opportunity to enquire into and determine whether entry was authorised by s 760 of the Act in the light of all relevant circumstances or new information.
[Emphasis in original]
151 The authorities to which his Honour referred in relation to the determination of whether there existed a single course of conduct were pertinent, as is underscored by the later decision of the Full Court in Construction, Mining and Energy Union v Williams (2009) 262 ALR 417. To these might be added the following statement by Lord Diplock in Director of Public Prosecutions (UK) v Merriman[1973] AC 584 at 607:
"[w]here a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment".
If the concluding reference in that statement to indictment drafting practice were deleted and, in lieu, it were stated, "the contraventions resultant from those acts should be regarded as a single contravention for the purposes of s 719(2) of the WR Act", that would, in our respectful opinion, be a succinct statement of relevant principle. Beyond that, what remains are but particular applications of that principle to particular facts. Within those particular applications, cases will arise where the common connection is such that, necessarily, particular contraventions must be treated as a single course of conduct for the purposes of s 719(2) of the WR Act. Equally though, there will be other cases where there is reasonable scope for persons reasonably to differ as to whether there is indeed a single course of conduct. This, in my opinion, is such a case.
152 What the learned trial judge termed "fault lines" do, for the reasons which he gave, provide a basis upon which, without violation of the governing principle, it might be concluded that there was not, for the purposes of s 719(2) of the WR Act, a single course of conduct. In these circumstances, it is not appropriate to disturb the conclusion which his Honour reached on that subject.
153 It was relevant for the learned trial judge to take into account what he termed the "counter-factual". The submission of the appellant unions understated the extent of what his Honour considered under this topic. It was not just the possibility of seeking relief in this Court. Rather, as stated by his Honour (at para 69), "The officials might have determined, through discussions with John Holland and/or [Ports Corporation], or alternatively by invoking other procedures, whether in all the circumstances s 760 of the Act conferred a right of entry on the permit holders as they contended. " This was true. The unions, via their officials, chose what might be termed the path of direct action rather than constructive consultation or resort to the judicial power of the Commonwealth. One reason why civilised societies provide for the quelling of controversies in the courts by an independent judiciary is to avoid recourse to direct action. It was by no means impossible, having regard to the events of 19 November 2008 and the subsequent exchanges of correspondence prior to 13 February 2009, to see that a justiciable "matter" existed. In addition, as his Honour noted, there existed an avenue of recourse to the Australian Industrial Relations Commission Once again, a reason, if not the principal reason, why the Commission had by then existed in one form or another for over a century as part of the Australian industrial relations system was to provide an independent forum in which disputes might be conciliated or arbitrated without the disruption of direct action. Further, that there had been an absence of inquiries of the Ports Corporation by the appellant unions of the fate of either the "X30" or "X35" expansion project was a conclusion open on the evidence the parties had chosen to lead before his Honour. It was neither irrelevant nor unreasonable to take it into account. Indeed, especially after 19 November 2008, it was an obvious inquiry for the appellant unions responsibly to make.
154 The learned trial judge concluded his thorough consideration of relevant sentencing considerations in the following way:
96 Having regard to all of these considerations the penalties to be imposed are these. A penalty of $17,000.00 is imposed on the CFMEU in respect of the contraventions occurring on 13 February 2009. A penalty of $16,000.00 is imposed on the AMWU in respect of those contraventions on that date. A penalty of $15,000.00 is imposed on the CEPU in respect of those contraventions on that date. A penalty of $23,100.00 is imposed on the AMWU and the CFMEU in respect of the contraventions by those Unions on 5 March 2009. Having regard to the application of the totality principle, I am satisfied that there is no reason to reduce the aggregate penalty in respect of both contraventions of $40,100.00 in respect of the CFMEU and $39,100.00 in the case of the AMWU. In assessing the penalty to be imposed on the CFMEU, I take into account the need for general deterrence from engaging in contraventions of the Act and specific deterrence having regard to the previous contraventions of provisions of the Act dealing with entry to premises and previous contraventions involving elements of misrepresentation. In assessing the penalty to be imposed on the AMWU, I also take into account the need for general deterrence and, having regard to the role of Mr Bradley which in some senses was a leadership role, I also have regard to the need to specifically deter the AMWU from entering premises in circumstances where reasonable enquiries as to a right of entry were not made of either the occupier of the Terminal premises or the applicant as the employer, thus defeating the balance sought to be struck between organisations, occupiers and employers by s 736 of Part 15. In assessing the penalty to be imposed on the CFMEU and the AMWU in respect of the contraventions on 5 March 2009, I give particular emphasis to those matters discussed at [26] to [79] of these reasons.
[What his Honour termed the AMWU is also known as the AFMEU]
It is not necessary additionally to reproduce paras 26 to 79 of his Honour's reasons. The penalties imposed were, for the reasons given by the learned trial judge and summarised in this passage, within the limits of the reasonable exercise of a sentencing discretion, both individually and in a relative sense as between individual unions. That conclusion and my reasons for it, accords with the general nature of the submissions put to us by the ABC Commissioner and John Holland on the subject of penalty. I do not in these circumstances consider it necessary separately to detail those submissions, as opposed to explaining why it was that the appellant unions' submission was without merit.
155 For these reasons the appeal should be dismissed.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.
Set aside orders 5, 6, 7, 8, 9 and 10 made on 13 August 2009;
Remit the matter to the learned primary Judge for further consideration; and
Liberty to apply.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.
Supply and fabrication of approximately 12.8km of 1,200 diameter steel tube piling
Delivery to site of this piling and splicing on‑shore at site into the required lengths for driving, including provision of the driving shoe. Two splices will be required at site per pile (ie approximately 480 splices at site producing 240 piles)
Handling and pitching of approximately 240/1,200 diameter piles
Driving an estimated quantity of 6,000 metres of piles
Supply, fabrication, protective treatment, delivery to site and installation of approximately 2,200 tonnes of fabricated steelwork associated with headstocks, rail girders, bracing and access for the marine structures and also the C335 conveyor support trestles
Manufacture, delivery and installation of approximately 950 precast concrete deck units of varying lengths
Supply and installation of over 530 metres of A150 shiploader rail
Supply and installation of other miscellaneous equipment including fenders, mooring hooks, ships access facility, platforms, davits, etc.
Structural steelwork including:
Jetty Conveyor C334 gallery trusses, each typically spanning 24 metres, supported from existing piled headstocks, (Note, no additional piling is required on the approach jetty). The estimated quantity of fabricated steelwork is 1,050 tonnes.
Modifications in the C324 Drive Tower
C335 shipping gallery structure comprising over 260 tonnes of fabricated steelwork
C335 Drive Tower comprising approximately 45 tonnes of fabricated steelwork
Extruded aluminium flooring and aluminium floor grating
Aluminium purlins and girts and cladding in C335 Drive Tower
Limited concrete flooring
Mechanical works including:
Jetty Conveyor C334 complete including all pulleys, idlers, drive units, conveyor belt, takeup, chutes, scrapers, sensors, guarding, etc, and modifications as required within the existing C324 Drive Tower
Wharf Conveyor C335 complete including all pulleys, idles, drive unit, conveyor belt, takeup, chutes, scrapers, sensors, guarding, etc. The diverter chute shall be capable of feeding to either C335 on Berth 2 or existing C325 on Berth 1.
Modifications to chutework to permit existing Jetty Conveyor C324 to feed to either C325 on Berth 1 or C335 on Berth 2
Wharf slurry tanks and clean‑up system
Maintenance hoisting equipment
Conveyor water services
Electrical works including:
C334 jetty conveyor complete with electrical/control systems hardware, junction boxes, cabling, testing and commissioning
C335 shipping conveyor complete with electrical/control systems hardware, junction boxes, cabling, testing and commissioning
Feed centre to shiploader
Replacement of existing and the installation of new HV switchgear within the Wharf Substation
HV cabling between the Main and Wharf Substations
General lighting & power to wharf & jetty structures
PA system extension
Cathodic protection of marine structures
[Emphasis, other than emphasis in bold, added by the learned trial judge]
68 The Expansion Agreement was executed by John Holland and the AWU between 15 April and 17 April 2008. It came into operation on 17 April 2008. It operates for 3 years. The parties to the agreement are John Holland, the AWU and all employees of John Holland "engaged in the classifications contained in [the] Agreement, unless excluded by Clause 4.2". It is not necessary to refer to cl 4.2 for the purposes of this appeal.
69 Clause 4.1 of the Expansion Agreement provided:
APPLICATION AND SCOPE OF AGREEMENT
4.1 This Agreement shall apply to the parties at the Ports Corporations of Queensland Abbot Point Coal Terminal X25 and X30 Expansion as outlined in Appendix A for who rates of pay and classifications are provided by this Agreement.
[Emphasis added]
70 As executed, the Expansion Agreement did not contain an Appendix A. It did though contain an appendix described as "Appendix 1". Appendix 1 defines the scope of works both for "X25" and for "X30". So far as presently material, Appendix 1 provides:
APPENDIX 1 - DEFINITION OF PROJECT
The scope of works for X30 includes the following:
Supply and fabrication of approximately 12.8km of 1,200 diameter steel tube piling
Delivery to site of this piling and splicing on‑shore at site into the required lengths for driving, including provision of the driving shoe. Two splices will be required at site per pile (i.e. approximately 480 splices at site producing 240 piles)
Handling and pitching of approximately 240/1,200 diameter piles
Driving an estimated quantity of 6,000 metres of piles
Supply, fabrication, protective treatment, delivery to site and installation of approximately 2,200 tonnes of fabricated steelwork associated with headstocks, rail girders, bracing and access for the marine structures and also the C335 conveyor support trestles
Manufacture, delivery and installation of approximately 1,085 precast concrete deck units of varying lengths
Supply and installation of over 530 metres of A150 shiploader rail
Supply and installation of other miscellaneous equipment including fenders, mooring hooks, ships access facility, platforms, davits, etc
Structural steelwork including:
Jetty Conveyor C334 gallery trusses, each typically spanning 24 metres, supported from existing piled headstocks. (Note, no additional piling is required on the approach jetty). The estimated quantity of fabricated steelwork is 1,050 tonnes.
Modifications in the C324 Drive Tower
C335 shipping gallery structure comprising over 260 tonnes of fabricated steelwork
C335 Drive Tower comprising approximately 45 tonnes of fabricated steelwork
Extruded aluminium flooring and aluminium floor grating
Aluminium purlins and girts and cladding in C335 Drive Tower
Limited concrete flooring
Mechanical works including:
Jetty Conveyor C334 complete including all pulleys, idlers, drive unit, conveyor belt, take up, chutes, scrapers, sensors, guarding, etc, and modifications as required within the existing C324 Drive Tower. The head chute shall be capable of feeding to either C335 on Berth 2 or existing C325 on Berth 1.
Wharf Conveyor C335 complete including all pulleys, idlers, drive unit, conveyor belt, take up, chutes, scrapers, sensors, guarding, etc.
Modifications to chutework to permit existing Jetty Conveyor C324 to feed to either C325 on Berth 1 or C335 on Berth 2
C335 Tripper structure complete including all pulleys, hold down rollers, scrapers, chute, guards, etc
Wharf slurry tank and clean‑up system
Maintenance hoisting equipment
Conveyor water services
Electrical works including:
C334 jetty conveyor
C335 shipping conveyor
Feed centre to shiploader
Wharf substation HV switchgear
[Emphasis added]
71 By March 2008 the Expansion Project was known and commonly referred to as the "X50 Expansion Project".
72 The learned trial judge made the following observation (reasons for judgment, para 51) in relation to the invitation to tender and the Expansion Agreement:
It can be seen that there is a very substantial degree of reconciliation between the scope of works comprising the "Marine Works" the subject of the proposed Contract Q08‑004 as described in the Invitation to Tender … particularly having regard to the content of section 3 of the Invitation to Tender, on the one hand, and the description of the scope of works for X30 in Appendix 1 to the Agreement having regard to the content of the structural steelwork, mechanical works and electrical works in Appendix 1; … on the other hand. [The Port Corporation] issued the Invitation to Tender for work so described in the invitation on 21 December 2007.
I agree with this observation. There is a high degree of correlation between works described in the invitation to tender on the one hand and in the Expansion Agreement on the other.
73 At trial, the appellant unions contended the Expansion Agreement did not cover those employed in undertaking the work which came to be the subject of Contract 08-004. These reasons were repeated on their behalf on the appeal. Adopting the summary employed by the learned trial judge, they were:
(a) Contract 08-084 was made after the Expansion Agreement. It emerged in its final form following many meetings over 7 months.
(b) Evidence concerning the evolution of the references to the "X30 Expansion Project" to the "X50 Expansion Project" was no more than "interesting". That evidence could not be relied upon for the purpose of construing the Expansion Agreement because it was not known to the AWU.
(c) No evidence had been adduced that either John Holland or the AWU intended the scope of the work in the Expansion Agreement to be the same as that in the invitation to tender. For this and the preceding two reasons the Expansion Agreement fell to be construed only by reference to the natural and ordinary meaning of the words in that agreement.
(d) The critical word in the application clause in the Expansion Agreement, cl 4.1, was "at". This specifies a place or geographical point of occupation. Thus, the agreement is to apply at a place of X25 and X30 expansion and only at that place. The description had to be read conjunctively. There is no separate physical location known as the "X30 Expansion".
(e) Clause 4.1 of the Expansion Agreement should not be construed by reference to an analysis of the tasks to be performed as part of the relevant expansion activities. This would be to reword the application clause so that it provided that the Expansion Agreement, "applied to all work within the description of work set out in Appendix A", rather than by reference to the words actually used, "This Agreement shall apply to the parties at the Ports Corporation of Queensland Abbot Point Coal Terminal X25 and X30 Expansion as outlined in Appendix A …" (emphasis in the appellant union's submission).The appellant unions further submitted that it was consistent with construing cl 4.1 as providing for a site‑specific application that the Expansion Agreement otherwise used the terms "the Project" and "Project layout" and made other references to the term "the Project.
(f) It is not clear that Appendix A in cl 4.1 of the Expansion Agreement should be taken to be a reference to Appendix 1 to that agreement. [This was, I thought, pressed somewhat faintly on behalf of the appellant unions in the course of oral submissions on the appeal. There was good reason for this reticence.]
(g) As an alternative to the above, neither John Holland nor the AWU led evidence as to objective facts known to those parties at the time when the Expansion Agreement was made. Thus, the court could not form a view as to whether that agreement covered work done on the X50 site.
(h) There is an absence of complete symmetry between the scope of work described as "X30" in Appendix 1 to the Expansion Agreement, that described in the invitation to tender and that set out in contract 08-084. The invitation to tender makes reference to electrical work described as:
HV cabling between the Main and Wharf Substations
General lighting & power to wharf & jetty structures
PA system extension
Cathodic protection of marine structures.
There is no reference to such electrical work in the invitation to tender. The scope of the works in Contract 08-084 was wider in relation to these aspects of the contract works (refer cl 2.5.1. and cl 2.5.3. of the Technical Specification.) It was not therefore open to conclude that all work performed at the X50 Expansion project was covered by the Expansion Agreement. Some of it was "Agreement-free".
74 What the learned trial judge described as his "essential approach" to the construction of the Expansion Agreement is to be found in the following passage in his reasons for judgment (para 77 to 79):
77 In construing the Workplace Expansion Agreement, the aim is to isolate and identify the meaning the parties intended in adopting the language they chose. That meaning is found by giving those words their natural and orthodox meaning while recognising that the chosen words must be viewed broadly in the context of the Agreement as a whole and not too literally, assessed in the context of the practical setting within which the Agreement was intended to operate.
78 No agreement operates in a vacuum, especially an agreement intended to comprehensively address the wages and conditions of employment of men and women doing work. Nothing could be more adapted to the most applied and practical focus of the mind of the authors of such a document than the nature of the work to be done, the classifications that would apply to men and women doing particular work and the rates of pay and loadings applicable to such work.
79 It follows therefore that the intention of the parties to the Agreement should be understood not only by reference to these essential considerations but also in the context of the work John Holland was seeking to win and attract for its employees by its tender in response to the Invitation to Tender and whether the scope of the Workplace Expansion Agreement has a relevant relationship with that work, in the context of the contract that was ultimately to be entered into for the performance of particular work. As to these principles see the adoption of the observations of Street J in George A. Bond & Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 by French J in City of Wanneroo v Holmes (1989) 30 IR 362; Kucks v CSR Limited (1996) 66 IR 182 per Madgwick J at 184; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 per Ryan J; Ansett Australia Limited v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209 per Wilcox, Conti and Jacobson JJ at [8]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 per Nicholson, Jacobson and Lander JJ at [51]; and Amcor Limited v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 214 ALR 56, (2005) 222 CLR 241 per Kirby J at [96] and Callinan J at [129] to [131].
75 The learned trial judge then analysed the text of the invitation to tender, the Expansion Agreement, especially cl 4.1 and Appendix 1 and Contract 08-084. He had no difficulty, nor do I, in construing the reference in cl 4.1 of the Expansion Agreement to "Appendix A" as a reference to Appendix 1 to that agreement. He referred to the "very substantial correlation between the work John Holland employees would undertake as described in the Invitation to Tender for contract Q08‑004 if it won the tender, and the work to be undertaken by John Holland employees as described under the subheading "Scope of Works for X30 includes the following" in Appendix 1 to the [Expansion Agreement]". His Honour then observed of the invitation to tender that it, "explained that [Ports Corporation] was then planning to expand the Terminal facilities to 50Mtpa and explained the broad content of the 'next stage' of the expansion. The letter sets out the scope of works described broadly as the "'Marine Works' which was to be the subject of contract Q08‑004" (my emphasis). He then stated (reasons for judgment, para 80), "Nothing could be more plain than that the parties intended the Agreement to apply to the works the subject of the tender for contract Q08‑004 described in the Agreement under the heading X30." In making that statement his Honour acknowledged that four items (those mentioned above) in the invitation to tender were not replicated under the Heading "Electrical Works" in Appendix 1 to the Expansion Agreement. That acknowledged, his Honour drew the inference from the otherwise close adoption in the Expansion Agreement of the works described in the invitation to tender that the parties intended that the Expansion Agreement would apply to the tendered Marine Works.
76 Having so done, his Honour made reference to evidence, the general effect of which I have already set out, concerning the evolution, following the sending of the invitation to tender, of the "X30 Expansion Project" into the "X50 Expansion Project". He allowed that, "It may be that John Holland and the AWU did not come to use that term in March 2008 to describe the scope of the Marine Works", but continued, "However, it is clear that the Marine Works had become a part of the works required to be done to achieve an expansion to 50Mtpa and hence an X50 Expansion" (emphasis by his Honour). Rejecting the submission made by the appellant unions, his Honour concluded (reasons for judgment, para 80), "[The] notion that the Agreement applies at a separate X30 Expansion site or X30 project site does not give the Agreement, conditioned by Appendix 1, the true meaning and intention of the parties. It was an Agreement to cover the work done."
77 Having reached this conclusion, the learned trial judge made reference to a detailed Technical Specification of 30 April 2008 and to a later version dated 30 June 2008 which came to form part of Contract 08-084. Again acknowledging that these Technical Specifications were more extensive in detail or content to the description of the works in Appendix 1 to the Expansion Agreement, His Honour commented (reasons for judgment, para 81), "[A]dopting a practical approach, the Agreement which was designed to regulate industrial engagement between an employer, its employees and a Union, seeks to express the intention of the parties to bring the offshore or Marine Works set out under the 26 bullet point topics [set out in Appendix 1, excerpted above] under the coverage of the Agreement, rather than express an intention to prescriptively isolate the content of each and every element of those works as if the Agreement was intended to prescriptively anchor a contractor to each and every specific technical detail required to perform the works and discharge and acquit a contract for works. The terms of the Agreement and these contextual events suggest that the Agreement was not intended to be a surrogate or analogue of a Technical Specification." In support of this comment his Honour again made reference to evidence given by two of John Holland's managerial staff as to the evolution of the formulation of the Technical Specification after the issuing of the invitation to tender.
78 For these reasons, the learned trial judge concluded that, on the two dates which were the subject of the alleged contraventions, 13 February 2009 and 5 March 2009, as well as on an earlier date which assumed some importance in the proceedings, 19 November 2008 (of which more below), work being carried out on the X50 work site by John Holland employees was covered by the Expansion Agreement.
79 In developing its eight reasons why they alleged the approach of the learned trial judge to the construction of the Expansion Agreement to be in error, the appellant unions submitted with respect to the construction of industrial awards and agreements that:
(a) it is confined as a matter of law to matters which are known to both parties at the time of the making of the award or agreement concerned: AMWU v QANTAS Airways Ltd (2001) 106 IR 307 at [21]; Moshirian v University of New South Wales [2002] FCA 179 at [24] to [28]; and
(b) it is not permissible to have regard to the conduct of the parties after the making of the award or agreement, Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 517-519 and, further, "or of course documents brought into existence after the making of an award or agreement".
80 Just these vices were, it was submitted, evident in the reasoning of the learned trial judge.
81 The appellant unions' submission went so far as to advance the proposition that they had been denied natural justice because their written submission below had advanced the contention, expressly by reference to AMWU v QANTAS Airways Ltd (supra), set out in paragraph 29(a) above, and neither this submission nor that case had expressly been dealt with by his Honour.
82 This last submission should be dealt with at once. As it happens, perhaps because of this particular appeal ground, the written submissions made below were, unusually, included in the appeal books. These disclose that the union appellants' submission below was even more prolix than their written outline in respect of the appeal. The latter exceeded by six pages (and that few only because of the closeness of the type) the limit prescribed by this Court's Practice Note (App 1, para 4.1(h)) the permitted length, in the absence of a grant of leave, of an outline of submissions in chief on an appeal. I have, of course, read the outline, as with those of the other parties.
83 The prompt hearing and determination of appeals, and of proceedings in the original jurisdiction, is assisted by conciseness of expression in submissions, not prolixity.
84 Lest the reference to the prima facie page limit be thought to be overly pedantic, an error of substance which underpins the denial of natural justice submission should be exposed. In Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [62] Gleeson CJ, McHugh and Gummow JJ observed, at [62]:
A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
The correctness of this observation is not affected by the orders which the High Court later made in relation to a failure to advert to a proposition advanced in a notice of contention before that court on the hearing of the appeal concerned: Whisprun Pty Ltd v Dixon (No 2) (2004) 78 ALJR 321. Whisprun Pty Ltd v Dixon and authorities to similar effect were cited by the Full Court in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 at [83] in support of this further observation in relation to the duty of a trial judge to give reasons, "Nothing we have said should be taken to encourage over-lengthy judgments in the usual case, the undesirability of which has been commented upon recently".
85 In Expectation Pty Ltd v PRD Realty Pty Ltd the vice exposed was a failure adequately to explain credibility based findings of fact after what was regarded as an overly lengthy reservation of judgment. That is not this case. Further, the challenge is directed to an issue of law, the construction of the Expansion Agreement, not findings of fact. The learned trial judge has fully exposed, by reference to authority, what he regards as to the "essential approach" to the construction of the Expansion Agreement. He has then, also fully, exposed how, in his opinion, these principles are to be applied so as to reach his conclusion as to the meaning and application of the Expansion Agreement. Further, his Honours' reasons take the form which they do because they are responsive to agreed issues which the parties put before him (see para 24 and para 83). He has expressly identified the eight bases advanced by the appellant unions as to why the Expansion Agreement should be construed in the manner for which those unions contended. The learned trial judge was not obliged to refer to every authority, reported in authorised reports, otherwise reported or not reported at all which commended itself to the ingenuity of counsel. His Honour could have elaborated further as to the submission advanced by the appellant unions but he was not obliged to. It just so happens that, for reasons which were fully exposed, the appellant unions' submission as to the construction of the Expansion Agreement, the nature of which was self-evidently appreciated by his Honour, was not accepted. I reject the appellant unions' "denial of natural justice" submission.
86 Rejection of that submission does not carry with it the further conclusions that all of his Honour's reasons for so construing the Expansion Agreement must be accepted or that his ultimate conclusion as to the construction and application of the Expansion Agreement was necessarily correct. I turn now to consider those issues.
87 I have already set out the submission of the appellant unions on these issues. The ABC Commissioner did not advance a submission with respect to these issues, only in relation to matters of principle and practice with respect to penalty.
88 Unsurprisingly, John Holland and the AWU did join issue with the appellant unions on these issues. It is a feature of this case that the actual parties to the Expansion Agreement, as opposed to strangers to it, the appellant unions, are at one as to its meaning and application. Both John Holland and the AWU submitted that the actual conclusion reached by the learned trial judge as to the meaning and application of the Enterprise Agreement was correct.
89 John Holland, with respect, seems to have treated the appellant unions' disregard of the Practice Note as a licence to do the same in relation to the length of its written outline.
90 Be this as it may, its submission took as it starting point the well settled principle that an industrial instrument must be given its plain and ordinary meaning and construed in context having regard to the subject matter and text of the instrument as a whole: Amcor Limited v Construction, Forestry, Mining & Energy Union (2005) 222 CLR 241 per Gleeson CJ and McHugh J at [2] and Gummow, Hayne and Heydon JJ at [30]. Reference was also made to a well known passage in the judgment of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184, which has frequently been cited with approval, both in the original jurisdiction and beyond, for the further guidance which it offers in relation to that principle:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award.
These observations have been regarded as having like application to the construction of an industrial agreement, see, e.g. Amcor Limited v Construction, Forestry, Mining & Energy Union (2005) 222 CLR 241 per Kirby J at [96] and Callinan J at [129] to [131]. The learned trial judge's particular citation of these two authorities, amongst others, was obviously intended to signify his agreement with this approach to the construction of an industrial award or agreement. There was no error in that agreement.
91 John Holland put forward the following as a summary of principle in relation to the use of extrinsic evidence in relation to the construction of industrial instruments:
A court of competent jurisdiction may have regard to evidence of the circumstances surrounding the making of the agreement in order to ascertain the parties presumed intention. To be admissible, extrinsic evidence must usually go to objective background facts which are known to the parties at or before the date of the agreement. One exception to this rule is where objective facts are so notorious that they are presumed to be known to both parties. Evidence of a party's subjective intentions or expectations will usually be inadmissible. Whether or not the party actually had the objective intention for which they contend is a question of fact to be approved in accordance with the civil standard. [Footnote references omitted]
92 This is a correct summary of principle. At this level of abstraction, the submission of the appellant unions was to like effect. I intend no disrespect to the judge concerned, Northrop J, in observing that AMWU v QANTAS Airways Ltd (supra), is, as his Honour clearly (at [21]) regarded it, but a particular illustration in an industrial context of an approach to the construction of contracts counselled by the High Court in the following passage in Codelfa Construction Pty Ltd v State Rail Authorities of New South Wales (1982) 149 CLR 337 at 352:
The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.
The illustration offered by AMWU v QANTAS Airways Ltd is, with respect, a helpful reminder of what has been stated by the High Court in Codelfa Construction Pty Ltd v State Rail Authorities of New South Wales but it overstates the place of that case, even though reference to it featured in the appellant unions' submission below, to find error in a failure by the learned trial judge to refer to it.
93 John Holland submitted that it was evident from para 79 of the judgment below that the learned trial judge had not misapprehended the principles governing the construction of industrial instruments evident in Amcor Limited v Construction, Forestry, Mining & Energy Union, Kucks v CSR Ltd and Codelfa Construction Pty Ltd v State Rail Authorities of New South Wales. In so doing, they reproduced in part para 79 but not the following concluding words, "in the context of the contract that was ultimately to be entered into for the performance of particular work".
94 If, by this statement, his Honour was of the view that it was permissible to have regard to the text of Contract 08-084 for the purpose of construing the Expansion Agreement, that view would be inconsistent with these authorities and, for that matter, the others which his Honour cites in para 79. There are indications, particularly in para 81 and para 82 of his Honour's reasons for judgment, that he held this view. Contract 08-084 was entered into after the Expansion Agreement. Its contents had no legitimate role to play in the construction of that agreement.Evidence of subsequent conduct is not admissible for the purpose of construing an earlier made contract: Bowesco Pty Ltd (receiver and manager appointed) v Zohar (2007) 156 FCR 129 at [78] (Even though this may yet be an open question at ultimate appellate level, q.v. Seddon and Ellinghaus, Chesire and Fifoot's Law of Contract (9th ed, Butterworths, 2008) at [10.16]). That this rule applies just as much to the construction of industrial instruments is indeed, as the appellant unions submitted, supported by observations made by Burchett J, Drummond J agreeing, in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 517.
95 Equally, there are indications in his Honour's reasons for judgment that he regarded the existence of the invitation to tender and the fact that particular works were then contemplated to be the subject of a contract to be known as Contract 08-084 as one of the objective background facts which preceded the making in April 2008 of the Expansion Agreement (see the first sentence of para 81 and his Honour's emphasis there of the word "subject" in relation to the then prospect of Contract 08-084 being entered into by the Port Corporation). The learned trial judge was entitled, as John Holland submitted, to have regard to the high degree of correlation between the works described in the invitation to tender and those described in Appendix 1 to the Expansion Agreement. The inference is inescapable that the parties to the Expansion Agreement were aware of the issuing of the invitation to tender and of the prospect that the Ports Corporation would, materially, shortly enter into a contract to be known as Contract 08-084. The Expansion Agreement was one sequel to the issuing of the invitation to tender. These were objective background facts to which his Honour was entitled to have reference. So, too, was the fact that, at the Terminal, there was not, as at or before 17 April 2008, any signage designating an area as the "X30 Project" or "X30 Expansion Project site".
96 The current, preferred approach to the construction of a contract is that its meaning is to be determined by what a reasonable person would have understood it to mean having regard not only to the text but also to the surrounding circumstances known to the parties and the purpose or object of the transaction: Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd (2004) 219 CLR 165 at [41]. Ambiguity is no longer a pre-condition to the admission of extrinsic evidence as to the background to a contract: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1. Once again, these general law principles are applicable with respect to the construction of industrial instruments such as the Expansion Agreement. The facts mentioned in the preceding paragraph were, in our opinion, relevant to the construction of cl 4.1 and to determining exactly what was the application of the Expansion Agreement.
97 Even if, contrary to that expression of opinion, such matters could not be referred to, it does not follow that the submission of the appellant unions as to the meaning and application of the Expansion Agreement should be accepted. There is merit in the submission of the AWU that it is not necessary, in order to determine the intention of the parties, as evidenced by the words used in the Expansion Agreement, to confine consideration to objective facts known to both parties at the time of the making of that agreement. This was, as the AWU submitted, an "over analysis" by the appellant unions of the place of objective facts. The AWU rightly emphasised that the primacy of the words used by the parties to that agreement in determining the scope and coverage of the Expansion Agreement. Objective facts then in existence might then be used, as Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd suggests, to assist in the reaching of a conclusion as to what a reasonable person would have understood those words to mean.
98 Looking just to the wording of the Expansion Agreement it is, as the AWU submitted, evident that the parties have, for convenience, divided the works to be the subject of the agreement into two broad groups, applying the labels "X25" and "X30" to these groups. In themselves, these labels are meaningless having no content other than that respectively set out under these headings in Appendix 1 to the Expansion Agreement.
99 What is apparent from Appendix 1 to the Expansion Agreement is that the parties understood that there were two broad types of works, inland works at the Terminal, given the label "X25", and offshore and related onshore works at the Terminal, labelled "X30". The latter do indeed look to be the "Marine Works" referred to in the invitation to tender.
100 The appellant unions' submission had at its heart, as the AWU submitted, affording the word "at" in cl 4.1 a meaning which confined the application of the Expansion Agreement to a defined physical location and thereby excluding any of the work referred to in Appendix 1 which may be performed at any other place within the Terminal Area. Yet an examination of the works described in Appendix 1 makes it unlikely that the parties intended the agreement just to apply to a single area. The learned trial judge was alert to this. At para 54 of his reasons for judgment he observed that, "The circumstance that determines the place where work will be done is the nature of the expansion works." I agree.
101 There are other reasons to reject the appellant unions' submission as to the construction and application of the Expansion Agreement. John Holland rightly emphasised that an absurd meaning of the application clause should be avoided if at all possible. The AWU drew attention to the uncontroversial objective background fact, which was that, in relation to the works described in Appendix 1, there was no existing industrial instrument regulating employment in the undertaking of those works. In this regard, the sites where these works were to be undertaken were what is known in industrial relations parlance as "Greenfield Sites".
102 The very nature of the Expansion Agreement suggests that the parties intended to have a comprehensive application to the two broad groups of works described in Appendix 1. It is highly unlikely, if not absurd, to attribute to the parties any intention that there be left any enclaves bereft of provision. That is so even though, self evidently, the Expansion Agreement was not made in complete temporal tandem with what later became Contract 08-084. It was though, as I have already observed, obviously a sequel to the issuing of the invitation to tender. The detailed descriptions of the works in Appendix 1 are such that, objectively, it is unlikely that the parties intended that the industrial interests of employees undertaking those works would, for the duration of the Expansion Agreement, be represented otherwise than by the AWU and governed otherwise than by the terms of that agreement.
103 That the site was a "Greenfield Site" underscores this. As the AWU correctly submitted, "it is in the very nature of a 'greenfields agreement', which of necessity must be concluded before any work has commenced, that the parties will be required to make some predictions as to the nature and scope of the works which are before them."
104 The logical extension of the construction promoted by the appellant unions is that the parties set out to make an agreement which was applicable only at a place which did not exist, the "X30 site". This, too, is unlikely, if not absurd. Rather, the Expansion Agreement should be construed in a way which gives it a comprehensive and exhaustive application to two broad groups of tasks which the parties set out to describe as best they could at the time when that agreement was made. This does not deny the word "at" in cl 4.1 a role to play. Rather, it affords it an ambulatory meaning, extending to wherever the tasks which the parties have sought comprehensively to describe are being performed.
105 It follows, albeit not for exactly the same reasons, that the conclusion reached by the learned trial judge as to the application of the Expansion Agreement was correct.