The attached document replaces the document previously issued with the above code on 23 October 2017.

Paragraph [14] is amended to insert Mr C Massey of Junior Counsel for the Applicant.

Appearances are amended to reflect the amendment to paragraph [14].

[2017] FWC 5380

Fair Work Act 2009

s.229 - Bargaining order

Construction, Forestry, Mining and Energy Union

Application for bargaining order - Alleged failure to meet good faith bargaining requirements - Section 228(1)(e) - Alleged capricious or unfair conduct that undermines freedom of association and collective bargaining - Application of employer's policies to conduct of employees while taking protected industrial action or engaging in union activity - employees not immune from disciplinary action where conduct out of work breaches employer's policies notwithstanding that they are taking protected industrial action or engaging in union activity - Finding that conduct of employer breached good faith bargaining requirement in s. 228(1)(e) - Bargaining order issued.

[1] The Construction Mining and Energy Union (CFMEU) applies under s. 229 of the Fair Work Act 2009 (the Act) for a bargaining order against Oaky Creek Coal Pty Ltd (OCCPL/the Company). OCCPL, which is part of the Glencore Group of companies, owns and operates the Oaky North Underground Coal Mine (the Mine). The Mine is located outside Tieri, a town servicing the Oaky Creek Coal Complex, comprising the Oaky North Underground Coal Mine, and the Oaky No. 1 Underground Coal Mine and associated coal handling and processing infrastructure. Employees subject of the CFMEU's application are employed at the Oaky North Underground Coal Mine.

[2] The Mine operates 24 hours a day 7 days a week subject to scheduled maintenance and closes for approximately 48 hours per year. On average there are 369 people engaged at the mine each day, comprising 169 production and engineering employees, 104 staff employees and 96 contractor employees. [1] The workforce at the Mine is a combination of "fly in fly out" workers for whom subsidised accommodation is provided and workers who live in the local area. Approximately 60% of workers live in the local area and travel to the Mine by car. A majority of those employees live in houses leased from the Company, which essentially owns all of the houses in Tieri.

[3] Tieri was constructed by a previous owner of the Mine specifically for housing mine workers. OCCPL via a series of acquisitions is now responsible for the assets constructed by the former owner the Mine. Infrastructure such as roads, footpaths, easements, water treatment plant, sewerage treatment plant and the library have been handed to local Government. There are also a number of buildings built by the State Government to house teachers, police and ambulance. There is a pub owned and operated privately on land leased from the State Government.[2]

[4] CFMEU members constitute all of the production employees at the Mine. They are covered by the Oaky Creek North Mine Enterprise Agreement 2012 which has a nominal expiry date of 1 June 2015. The CFMEU and OCCPL have been bargaining for a replacement enterprise agreement since May 2015. The negotiations have been protracted and bitter. CFMEU members employed by OCCPL, commenced protected industrial action in May 2017 and by 12 June 2017 rolling stoppages were in effect. Employees returned to work for two days on 15 and 16 July 2017 and then took further protected industrial action from 17 to 19 July 2017. On 20 July 2017, OCCPL implemented employer response action and locked employees out. The lockout has remained in effect since 20 July 2017.

[5] During periods of industrial action and employer response action, the Mine has continued to operate with staff and employees of contractors performing work that would usually be undertaken by employees of OCCPL who are CFMEU members.

[6] Employees have established and maintained a picket line at a number of sites, most recently at the intersection of the Mine Access Road and Grasstrees Road. The stated purpose of the picket line is to protest against staff of OCCPL and contractor employees performing the work of CFMEU members, while they are taking protected industrial action and to advance the CFMEU's bargaining position. The picket line has been attended by employees, generally during periods when they would otherwise have been rostered to work. Queensland and inter-state Officials of the CFMEU's Mining and Construction Divisions have also been in attendance at the picket line along with various other persons. A security firm engaged by OCCPL has been documenting conduct on the picket line and filming and photographing participants.

[7] In late June 2017, OCCPL put a proposed agreement to employees and sought their endorsement by way of a secret ballot, which was conducted between 12 and 14 July 2017. There is some inconsistency in the evidence about total number of employees who were employed in classifications to be covered by the proposed agreement and who were therefore eligible to participate in the ballot. According to the CFMEU 191 employees voted in the ballot although I note that the evidence of witnesses for OCCPL is that the Company employs less than that number of employees in production and engineering classification. Nothing turns on this point and regardless of the number of employees who voted, it is not in dispute that only two employees voted to approve the agreement proposed by the Company.

[8] After the result of the ballot was known, the CFMEU withdrew notices of protected industrial action for 15 and 16 July and employees reported for work at the commencement time of the shifts they would have been rostered to work on but for the fact that they were taking industrial action. Upon their return to work the swipe cards employees usually used to access the mine through a turnstile did not operate and they were met at the entrance to the Mine and directed to remove certain shirts CFMEU branded shirts of a kind which they had previously been permitted to wear in the workplace. Employees were also informed that they would not in future be permitted to wear those shirts. After complying with the direction to change into other shirts, employees were directed to attend a training/briefing session in relation to Glencore policies with respect to: Equal Employment Opportunity, Discrimination, Harassment and Bullying; Performance and Conduct; and Social Media.

[9] After completing the training the employees who had returned to work on 15 July were informed that they were surplus to requirements and were sent home, but were paid for those days. Employees who returned to work on 16 July were dealt with in a similar manner but allege that they were also told to remove jackets branded with the name of the CFEMU.

[10] From 17 to 19 July 2017 employees resumed protected industrial action. On 18 July OCCPL issued letters to some 21 employees alleging breaches of Glencore Policies relating to conduct engaged in by employees while they were on the picket line. Five employees, including three employees who had been issued with the letters in relation to conduct on the picket line, were also issued with letters alleging breaches of Glencore's Social Media Policy. One employee who was at work on 15 July was handed the letter addressed to him and the remaining employees received their letters by email sent on 18 July 2017.

[11] The alleged misconduct on the picket line set out in the letters relates to a period from 2 July to 6 July 2017 and can be summarised as: employees shouting or chanting the words "grub" or "fucking grub" or "go you grub" or "maggot" at persons exiting the mine (in some cases using a loud hailer) or holding up signs bearing hand drawn pictures of large grubs. One employee is alleged to have used a mobile telephone to film or photograph vehicles leaving the Mine in a way that was alleged to be designed to intimidate the occupants of the vehicles. The alleged breaches of Social Media Policy relate to posts made by employees on a Union Facebook page and the Facebook page of the Daily Mercury (a local newspaper) during a period from 12 May to 11 June 2017.

[12] The CFMEU asserts that the issuing of the allegation letters is capricious or unfair conduct that undermines freedom of association and collective bargaining. The CFMEU also asserts that OCCPL has engaged in further conduct of this kind by using contract security personnel to undertake "wholesale and overt surveillance of ... CFMEU members in the township of Tieri" and by withdrawing longstanding permission for employees to wear CFMEU clothing on site. The CFMEU seeks Orders to effectively stop the conduct of which it complains and prevent it from occurring again. OCCPL rejects the assertions and maintains that Orders should not be made.

[13] Prior to the substantive hearing of the application for bargaining orders, the CFMEU sought an interim order to restrain OCCPL from proceeding with the process foreshadowed in the allegation letters pending the determination of the application. A hearing was held on 3 August 2017. Ultimately it was not necessary to deal with the application for an interim order on the basis that the parties gave undertakings that until the hearing and determination of the matter, respectively:

• OCCPL would not proceed with the process set down in the allegation letters; and

• Employees would refrain from engaging in the conduct set out in the allegation letters; and

• Paid Officials of the CFMEU (both Mining and Construction Divisions) would not use the terms "scab" "grub" or "maggot" at the picket, would remove Scabby the rat from the picket and would remove images of grubs from the picket.

[14] A hearing was conducted in Emerald over three days from 5 to 7 September 2017. The CFMEU was represented by Mr R Reitano of Counsel and Mr C Massey of Junior Counsel instructed by Hall Payne Lawyers. OCCPL was represented by Mr C Murdoch SC and Ms G Dann of Counsel instructed by Corrs Chambers Westgarth Lawyers. Both parties were given permission to be legally represented pursuant to s. 596 of the Act on the basis that no issue of fairness arose and the case raised complex legal issues. I was greatly assisted by the manner in which the representatives of the parties conducted their respective cases and dealt with the evidence and cross-examination to allow the hearing to be completed in three days.

[15] After reserving the Decision I informed the parties that I would not be in a position to release it in the time frame I had anticipated, prior to commencing a period of pre-planned leave. The parties extended their undertakings accordingly, and I express my appreciation for their assistance in this regard.

1. EVIDENCE

[16] The following persons provided statements in support of the CFMEU's application:

• Christopher Iain Brodsky, District Vice President of the CFMEU;[3]

• Mark Barrass, employee and member of the CFMEU;[4]

• Rhys O'Donoghue, employee and member of the CFMEU;[5]

• Kerry Saunders, employee and member of the CFMEU;[6]

• Michael Murray, employee and member of the CFMEU;[7]

• Nick Armstrong, employee and member of the CFMEU;[8]

• Wade Bidgood, employee and member of the CFMEU;[9]

• Nathan Lake, employee and member of the CFMEU;[10]

• Ross Clark, employee and member of the Executive of the Oaky North Lodge;[11]

• Robert Davis, employee and member of the CFMEU;[12]

• Mitchell Wyatte, employee and Lodge Secretary;[13]

• Kerrod Slatter, employee and member of the CFMEU;[14]

• Daniel Curry, employee and member of the CFMEU;[15]

• Kris-Anne Justine Birch, Solicitor of Hall Payne Lawyers;[16]

• Lachlan Michael Robert Jarrett, Member of Lodge Executive and Treasurer;[17]

• Michael Corrie, employee and CFMEU member;[18]

• Jimmy McConachy, employee and CFMEU member;[19]

• Thomas Farmer, employee and CFMEU member;[20]

• Ryan Richardson, employee and CFMEU member;[21]

• Michael Andolfatto, employee and CFMEU member;[22]

• Matthew Earl, employee and CFMEU member;[23]

• Matthew Flavel, employee and CFMEU member;[24]

• Keith Thompson, employee and CFMEU member;[25]

• Karl Batey, employee and CFMEU member;[26]

• Corey James Sullivan, employee and CFMEU member;[27]

• Adam Matthew Kasprowicz, employee and CFMEU member;[28]

• Adam Brady, employee and CFMEU member;[29]

• Jerry Ahern, employee and CFMEU member;[30]

• Ben Earl, employee and CFMEU member;[31]

• Danny Allen, employee and President of the CFMEU's Oaky North Lodge.[32]

• Randall Meier, employee and CFMEU member;[33]

• Jeremy Charles Forsyth, employee and CFMEU member;[34]

• Ian Thomas Morrissey, employee and CFMEU member;[35]

• Adrian John Woodman, employee and CFMEU member;[36]

• Leslie Stephen Morrissey, employee and CFMEU member;[37] and

• Anthony Robert Kirsopp, employee and CFMEU member.[38]

[17] Mr Brodsky, Mr Kirsopp, Mr Richardson, Mr Ian Morrissey, Mr Forsyth, Mr Woodman, Mr Leslie Morrissey, Mr Clark, Mr Earl, Mr Brady, Mr Wyatte, Mr Jarrett and Mr Allen were required for cross-examination.

[18] Evidence for OCCPL was given by the following persons who were cross-examined:

• Damien Bernard Wynn, Operations Manager and Site Senior Executive;[39]

• Scott Dobbie, Production Manager;[40]

• Michael Benjamin Solomon, Manager Site Services;[41]

• Michael Craig Williams, Training Co-ordinator;[42] and

• Martin James Chesworth, Corporate Protection Australia Pty Ltd Security Supervisor.[43]

The evidence included documents, photographs and video footage. I have considered all of the evidence and I have viewed the video footage tendered in the proceedings. I have also considered the written and oral submissions made by the parties.

[19] Glencore has the following policies which it asserts are relevant to the conduct of employees on the picket line and in relation to their use of social media in connection with the enterprise bargaining process:

• Performance and Conduct Policy (the Conduct Policy);[44]

• Equal Employment Opportunity (EEO) Discrimination, Harassment and Bullying Policy (EEO Policy);[45] and

[20] Each of the policies states that it does not form part of any employees' contract of employment. Each of the policies applies to all Australian employees including contractors, subcontractors and temporary staff. Misconduct is defined under each of the policies as including breach of company policy and procedure. The Conduct Policy essentially sets out the process that is to be followed for dealing with allegations of misconduct and references other policies including the EEO Policy.

[21] The EEO Policy relevantly states that the Company will not tolerate any form of discrimination, harassment, vilification, victimisation or bullying from any employee and that it applies:

"While at work or sponsored functions, while travelling on work related business, interfacing with local communities, as well as occasions where interactions between parties impact on the workplace or company reputation."

[22] The EEO Policy also states that employees found to have breached the Policy will be subject to further action including disciplinary action up to and including termination of employment. The grounds for discrimination set out in the Policy include industrial activity. Harassment is defined as:

"...any unwelcome behaviour that offends, humiliates or intimidates another person. Harassing behaviour can be but is not limited to:

• Uninvited or unwelcome;
• Intentional or unintentional;
• Conducted by one person or a group of people;
• Directed to one person or a group of people;
• Conduct that creates a hostile work environment for other workplace participants."

[23] General harassment is defined to include:

• Distribution or display of offensive material; or

• Behaviours that are generally aggressive, belittling or frightening to another person.

[24] The Social Media Policy is stated to apply inside and outside of working hours and regardless of whether social media comment is being made in a personal or professional capacity. Social media is defined to include Facebook and online forums or discussion boards. The Overview to the Social Media Policy states:

"This policy sets the standards to be followed when Company employees use social media, especially if they identify themselves as the Company employees either directly or as part of a user profile or if they can be identified as working for the Company via the content of their postings...

The overriding principle for employees to follow when engaging in social media activity is to act in accordance with the way they would conduct themselves at work. All information published in a social media is discoverable and forever in the public domain"

[25] Under the heading "Social Media is public comment" the policy states that:

"Employees should be aware that there is no such thing as a 'private' social media site, regardless of the privacy settings. Posting information on-line is no different from publishing in a newspaper or any other media format. If an employee makes any comment about the Company on a social media site they are making a public comment.

For all its benefits, social media also has the capacity to negatively affect an employee's professional, reputation, the reputation of the Company, an employee's ability to work with his or her colleagues, and to breach other policies of the Company.

It is important for all employees to be aware that:

• Social media privacy settings are not reliable. It is better to always assume that the person you would least like to see your social media post will see it;
• Employees are personally responsible for material they post online, whether in a private or professional capacity, on company or personal equipment, inside or outside of working hours; and
• Once material is published online it is out of the publisher's control and will be public for a very long time."

[26] In relation to public comment as a private citizen the Policy states that while employees have the right to enter public debate and comment on political, social or other issues, any comment must be made as a private citizen and be separate from employment with the Company. Comments must not compromise an employee's ability to perform his or her role in a professional manner. The policy further states that employees should not participate in social media networks in a way that negatively impacts on their effectiveness and productivity at work. Under the heading "Breach of this Policy" the following statement appears:

"Under no circumstances should offensive or derogatory comments be made about the Company, its employees, clients, suppliers, or competitors on the internet. This may amount to cyber-bullying or defamation and could result in disciplinary action.

Circumstances where the online use of social media will result in disciplinary action include but are not limited to:

• Use of internet sites to bully, harass, discriminate or vilify work colleagues ...
• Use of internet sites as a forum to publicise workplace disputes or grievances.

Any breach of this policy will result in disciplinary action, including but not limited to, issue of a warning, demotion, suspension or termination of employment..."

[27] Mr Williams gave evidence that training days are scheduled for employees every eight weeks and include training about human resource management policies and tendered attendance sheets for training on the EEO and Social Media Policies mostly conducted in 2015. Some training records referred to training in 2008 and 2013. In relation to Code of Conduct training, records were tendered, indicating that most of the employees subject of these proceedings attended such training between 2013 and 2017. Mr Williams also said that all of Glencore's human resource management policies are available via the Glencore intranet. Employees who do not have a computer for use in their daily job are able to use the computers in the training room and a generic username and log-on is provided to employees who do not have personalised computer access details.

[28] Under cross-examination, Mr Williams agreed that there is nothing in the training delivered to employees concerning what is expected of them while engaging in periods of industrial action or while they are participating in a picket line or in relation to the right of employees to privacy. Mr Williams maintained that Glencore's Social Media Policy provides that comments may not be made about work matters even where a Facebook page is private and restricted to a limited number of persons. In this regard, Mr Williams pointed to the statement in the Social Media Policy that privacy settings are not reliable. Mr Williams agreed that Glencore's policies and procedures did not prevent employees from having a private discussion about any matter in a place such as the pub.

[29] The employees who gave evidence for the CFMEU stated that they were not aware that the policies had any application during periods when they were taking protected industrial action. A number of the employees who gave evidence stated that the training they had in the policies prior to 15 and 16 July 2017 involved them reading the policies and viewing overhead slides.

[30] The evidence about the time frame and locations relating to the picket was not entirely clear. Mr Brodsky tendered a letter from the Central Highlands Regional Council dated 18 May 2017, giving permission to the Union to hold a peaceful protest for several months commencing on that date at a location not specified.[47] Mr Brodsky gave evidence that at 13 June 2017 the "protest" was being conducted at the intersection of Tieri Road and Maywin Drive, a short distance from the Tieri Golf and Bowls Club.[48]

[31] According to Mr Wynn, from 14 June 2017 a picket line was set up at the corner of Oaky Creek Mine Access Road and Maywin Drive, one of two access points to the Mine. From 26 June the picket was located on the left hand side of the Road heading towards the Mine although protestors would also stand on the right hand side of the road at various times. The picket was disbanded as a result of a direction from the Council on 21 July and since that time has been relocated. According to a judgement of Jackson J of the Supreme Court of Queensland in proceedings not relevant to this dispute, from 13 August 2017 the picket line has been located at the intersection of Grasstrees Road and the Oaky North Mine Access Road. There is evidence that there was a picket line in place at a location in Maywin Drive in May 2017.

[32] Mr Wynn's evidence was that on 5 May 2017 he engaged Corporate Protection Australia Group Pty Ltd (CPA), a security contractor, which provided a 10 person security team located in Tieri. According to Mr Wynn, from mid-June CPA has provided OCCPL with reports on the activities of persons on the picket line including "on occasion" photographs and video footage. OCCPL has also engaged lawyers from Ashurst to attend at the protest site from 5 July 2017 and to provide reports about their observations. There is also evidence that CPA was engaged in security operations in and around the Mine site and Tieri, well before the middle of June.

[33] Mr Wynn's statement sets out a list of conduct engaged in by various people on the picket line including Queensland officials of the CFMEU Mining Division and the CFMEU Construction Division and persons who have worn clothing indicating that they are from branches of the CFMEU located outside Queensland; and other persons who are not employed by OCCPL. That conduct which is also depicted in photographs and video footage tendered by OCCPL in the hearing includes:

• On 3 July 2017, two males not employed by OCCPL wearing clothing bearing CFMEU Qld/NT and CFMEU WA logos walking onto OCCPL property and directing abusive language towards security personnel including stating that "you are as shallow as fuck" and one of those persons spitting on the ground;

• On 3 July 2017, three males not employed by OCCPL approaching a person sitting in a silver car having a cigarette before entering the Mine Site and directing language at the occupant calling him a "maggot", "fucking scab" and stating that it is a "fucking dog act" going to work, resulting in the occupant of the vehicle filing a report claiming he was intimidated;[49]Mr Smythe, the President of the CFMEU Mining Division shouting the words "fucking grub", "fucking scab" and "fucking maggot" to passing vehicles and raising the middle finger of his hand (and on occasion both middle fingers simultaneously) ie. "giving the finger" to persons passing the picket line in vehicles;

• The playing of a song entitled "We're Not Going to Take It" by the band Twisted Sister on repeat and later a variety of songs including "Working for the Man" "Stronger"; Survivor" and "Power and Passion".
• Shouting a range of offensive comments including "grub", "fucking grub", "scab", "fucking scab", "once a scab always a scab", "fucking dogs", "cockhead", "dickhead", "prick", "cunt", "maggot", "go home you grub", "how do you sleep at night" and "aren't you ashamed", "what does your family think of you"; "parasite"; and "go hang yourself" to drivers of vehicles;
• Directing abuse towards the General Manager of the Mine;
• Shining lights into the security hut on OCCPL property;
• Blowing whistles and making barking and pig squealing noises;
• Driving cars slowly so as to obstruct cars leaving the Mine Access Road forcing them to sit at a stop sign for an excessive period while yelling, whistle blowing, chanting and shouting continued.
• Shouting of slogans such as: "What do we do when we're under attack? Stand Up. Fight Back"; "Union. Power. Union. Power."; "Sell your soul, cut some coal"; "One day longer, one day stronger"; "dib dib dob dob, cross the line steal our jobs; "Cross the line ruin the mine"; "we are the Union, mighty mighty Union, the ass kicking union"; and "no guts no spine never cross a picket line";
• Spray painting a road to the Mine with the words "Scabs turn right" and painting the name of a particular contractor above the word "scabs" on a number of road signs in proximity to the Mine;
• Holding up signs with the letters "S", "H", "A", "M" and "E" on them;

• The presence of a large inflatable rat at the picket line known as "Scabby the rat" which was removed at some point but was noted by Mr Chesworth to be at the Girl Guide Hut at Tieri on 8 August 2017;[50]

• Engaging in verbal abuse of security personnel including shining lights into the hut located on the Mine site from which they were working;
• Calling out the names of particular individuals who drove towards the mine and directing insults towards those persons.

[34] Mr Wynn states that most of the behaviour set out above and summarised in his statement, is not able to be attributed to individuals, but where it could be, the employees concerned were identified for the purpose of considering whether they had breached Glencore policies. In relation to general behaviour at the Mine, Mr Wynn accepts that working there is rigorous and demanding and that there is robust discussion among employees, including management. While swearing is not uncommon at the Mine, there is not a culture at the Mine that tolerates swearing or use of offensive language that is targeted at individuals or groups. Mr Wynn has not heard the terms "grub" or "scab" used other than in the context of employees or contractors crossing a picket line. Mr Wynn also said that he is aware that a number of statements of employees in these proceedings make allegations that persons passing through the picket, in particular employees of contractors working at the Mine during the lockout and protected industrial action had provoked those on the picket line. Mr Wynn said that he has not witnessed any of the behaviour alleged in those statements and cannot say one way or another whether it occurred. Mr Wynn also said that no employee has made a complaint about alleged interference by contractors at or around the picket.

[35] Mr Wynn gave evidence about a number of safety concerns relating to the conduct of those on the picket line including protestors stepping onto Grasstree Road and presenting a hazard to road users because of foliage and low visibility in the morning and at dusk. According to Mr Wynn protestors have also been using their vehicles to impede the vehicles of persons wishing to enter and exit the Mine. These matters have been raised with the Police and the local Council. Similar concerns have also been raised at a meeting of the Mine's Health Safety and Environment Committee.

[36] A further safety incident about which Mr Wynn gave evidence involved a fire at the picket line on 5 July 2017. Mr Wynn states that the fire occurred when a generator at the picket line caught fire. Requests were made by those engaging in the picket for fire extinguishers and emergency services support which were supplied by OCCPL. No procedures were in place to manage the risk of fire at the picket. A report provided by a solicitor from Ashurst who was at the scene indicates that the fire commenced at around 14:10 and that at 14:15 persons from the picket line approached security and asked for assistance. Security personnel provided fire extinguishers and accompanied those persons back to the site of the fire. The area was still smouldering at 14:37 and the Fire Brigade arrived and extinguished the fire by 14:50.

[37] Later, the solicitor from Ashurst observed two signs that had been made up by protestors stating respectively: "Fire Warden Needed; Apply Within" and "Fire training here every Wednesday".[51] Video footage of the fire was tendered by Mr Wynn. It shows persons on the picket line breaking branches from trees and using those branches in an attempt to extinguish the fire. The footage does not show any assistance being provided by security personnel. The persons who filmed the footage are heard laughing in the background apparently at the difficulties being experienced by the persons on the picket line attempting to put out the fire.

[38] Under cross-examination Mr Wynn agreed that the picket started in May 2017 at a location on Maywin Drive and had moved to the front gate of the operations by mid-June 2017 when it had ramped up in terms of numbers. According to Mr Wynn, behaviour on the picket line had become unacceptable by the end of June. Mr Wynn also agreed that the industrial action taken by employees became more prolonged around the end of the first week in June. In response to a question about when reports of the conduct set out in his statement were first received, Mr Wynn said that there were reports of similar conduct before 3 July 2017. Mr Wynn also said that the behaviour on the picket line was unacceptable from the start and that the word "grub" had been commonly used on the picket line from the time it commenced.[52] In response to a question as to whether anything had been done about conduct on the picket line prior to 3 July 2017 Mr Wynn said: "No, because we could not identify individuals." Mr Wynn also agreed that between 3 and 14 July the Company took no action in relation to the conduct of employees on the picket line.

[39] Mr Wynn agreed that he could have telephoned Mr Allen the President of the Lodge at the time the conduct was occurring to inform him that the Company had an issue with it, but said that he did not do this because Mr Allen was on the picket line and Mr Wynn assumed that Mr Allen accepted the behaviour. In response to a question about why he did not ring Mr Brodsky, with whom he had a "gentleman's agreement" in relation to discussing issues, Mr Wynn said that Mr Brodsky was on the picket line with Mr Smythe when the unacceptable behaviour was occurring and that both Mr Brodsky and Mr Smythe appeared to be condoning it. Mr Wynn later agreed that it would not be unreasonable for him to ring Mr Brodsky notwithstanding Mr Brodsky's role in the picket and that it could be seen as reasonable for him to do so. Mr Wynn further agreed that he did not need to be able to identify individuals engaging in the conduct to make such a call,[53] and that there was no information in his statement that Mr Brodsky had engaged in anything that would be regarded by Mr Wynn as bad behaviour at any time including the period up to 11 July.[54]

[40] Mr Wynn also agreed that the decision by the Company to put its proposed agreement out to a ballot of employees was made in the last week of June and the ballot was conducted from 12 - 14 July 2017. Mr Wynn started to accumulate information about the conduct on the picket line after 3 July 2017, but agreed that the same conduct had occurred before that date. Mr Wynn agreed that the conduct he regarded as bad behaviour engaged in by employees on the picket line, was almost overwhelmingly calling someone a "fucking grub" or a "maggot" and while there were other matters, this was the substance of the conduct dealt with in the allegation letters.[55]

[41] Mr Dobbie also gave evidence about conduct on the picket line. Mr Dobbie lives in Tieri and drives to work each day. As he drives past the picket line he has had abused yelled at his vehicle, whistles blown and signs about Glencore waved. Mr Dobbie has also received complaints from staff and contractors about conduct from persons on the picket line including incidents where a throat cutting motion was made; a staff member was told that he "is dead"; and a staff member complained that a convoy of vehicles which had slowed his car, had sped up when he overtook it so that he could not get back onto the right side of the road, while approaching the crest of a hill.

[42] Mr Dobbie also said that the picketers became more vocal and threatening on 3 July 2017 when three males appeared on the picket line who were not employees of OCCPL or locals, and approached the driver of a silver car while he was smoking outside the Mine. Mr Dobbie witnessed the incident live on a camera located at the entrance to the Mine and stated that it was apparent that the three males were standing close to the car and abusing the driver and one male pointed aggressively at the driver.

[43] Mr Dobbie agreed under cross-examination that more sustained industrial action occurred from around 3 July 2017 and that there was a distinct change in the conduct on the picket line from that date. In response to the proposition that the picket line ramped up from the middle of June, Mr Dobbie said that he did not have a view about that as he drove through the picket line every day and had focused on it at the start because "it was more personal at the start" but had changed since then.[56]

[44] Mr Dobbie also said that he understands that the CFMEU and its members are upset about contractors and staff doing their work and undermining their right to bargain and that part of the function of the picket line was to demonstrate disapproval of this to staff and contractors. Mr Dobbie agreed that there is reference to the negotiating position of Glencore on the signs being used by the persons on the picket line. Mr Dobbie accepted the proposition that the employees have a right to disapprove of these matters and to show their disapproval, but said that his issue was with the manner in which that disapproval was being expressed,[57] although he understood the "plight" of those on the picket line.[58]

[45] In response to a proposition that the first time he had heard the word "grub" being used on the picket line was 3 July 2017, Mr Dobbie said that he was not saying that this was the first time he heard that term and that it was "early on" before 3 July when he heard it. At this point Mr Dobbie said that he changed his approach to going through the picket line by turning up his radio and leaving his window up to block out the picket line. Mr Dobbie also agreed that he did not do anything about the use of the term "grub" when he heard it and just ignored it as he was not personally offended or intimidated.[59] Mr Dobbie agreed that in his 23 years in the mining industry he has heard altercations at the pit where worse language has been used. Further, Mr Dobbie agreed that he knew that the use of the word "grub" was serious when he reviewed the allegations about the conduct of those on the picket line (on or around 11 July 2017) but did not think the matter was serious at the point the term was directed to him. Mr Dobbie did not do anything about this matter initially because no-one had made a complaint to him.

[46] Mr Brodsky's evidence about the picket line is that it is designed to gain support and attention for the plight of the striking workers and to further their bargaining position. As organiser of the picket line the CFMEU has laid the ground rules including that it is peaceful at all times and that participants ensure that their conduct is appropriate. Members have been advised not to obstruct traffic, not to use laser lights, not to engage in violence and not to shine torches in people's eyes. Mr Brodsky maintains that these instructions have been followed. Most importantly, members have been instructed not to obstruct access to the Mine for contractors and staff and not to attack those individuals for attending the Mine. Mr Brodsky has stated to members that they should make their feelings known about the fact that the contractors are taking their jobs.

[47] The picket line is manned by members during the hours they would otherwise have worked a shift but for the fact that they are engaging in protected industrial action. The CFMEU has informed members that if they are going to attend the picket line they should do so while they are within the hours of the protected industrial action and "have all of the protections which the Act gives them in that regard". Mr Brodsky said that the conduct at the picket line has been virtually unchanged throughout and has not escalated. While there have been a few minor flashpoints, these have been brief and resulted from provocation of CFMEU members by contractors who are doing the jobs of members.

[48] Mr Brodsky also said that the Company has not complained to the CFMEU about the conduct on the picket line. Previously, Mr Brodsky and Mr Wynn have had a "gentlemen's agreement" whereby he contacts Mr Brodsky about issues of concern before they escalate. Mr Wynn has not made contact about this issue and has not raised it in meetings which he has held with Mr Brodsky on several occasions since the picket was established. The Company has not complained about conduct on the picket line in any bargaining meetings. Mr Brodsky also said that had the Company contacted him about its concerns he would have relayed those concerns to members and the CFMEU would have advised members to cease using the term "grub" if it was of concern to the Company as there are plenty of other ways to protest and it is not worth fighting about.

[49] Mr Brodsky was cross-examined about the use of term "grub" on the picket line and agreed that it was used to insult people, to describe people who have no principles and to convey that those attending work to perform work that would otherwise be performed by CFMEU members are low and contemptible people. Mr Brodsky also agreed that in calling these people grubs, the picketers want to send them a message that their conduct will not be forgotten. Further, Mr Brodsky said that the term "grub" is being used because people can't say "scab" anymore.[60]

[50] In their statements the employees alleged to have engaged in misconduct on the picket line, variously said that:

• they had generally attended the picket line at times when they would otherwise have been rostered to work;

• they had been told by the CFMEU not to use the word "scab", not to abuse anyone, stay disciplined and stay behind barriers

• they had been told by the Queensland Police not to swear;

• at one point Police issued an instruction that picketers should not blow whistles but this was withdrawn;

• the word "grub" had been used as part of a chant rather than being directed at anyone;

• the signs used by picketers were provided by the CFMEU and the sign with the grub depicted on it was drawn by hand and was drawn by someone from the CFMEU;

• they did not know that the term "grub" would be viewed as abusive or offensive;

• they had received no direction from the Company in relation to conduct on the picket line and were not aware that the Company had any issue with that conduct before receiving the allegation letters.

[51] Mr Wyatte said that if the Company had raised a concern about the word "grub" and said that they were considering a disciplinary process, the Lodge would have advised members not to use that term.[61] Mr Bidgood said that he would not have used the term "grub" if the Company had made its views known earlier, as there are other ways to protest.[62] Mr Clark said that CFMEU members followed the lead of the Lodge executive as they had never been involved in a picket before.[63]

[52] The employees who gave evidence were cross-examined about the picket line conduct and in particular the motive for use of the term "grub". Mr Allen said that he would regard a scab as a low individual and with contempt. He agreed that the description of someone as a scab sticks with the person for the rest of their life. According to Mr Allen, the word "grub" is used because picketers cannot use the word "scab".[64] Mr Clark also agreed that by calling someone a "grub" you are intending to convey the same message as if you referred to them as a "scab". Contractors who cross the picket line are scabs, low individuals and have no principles. They are people he would hold in contempt. Mr Clark also said that those on the picket wanted to send a message by using the term "grub".[65]

[53] Mr Wyatte said that he had been told that the term "scab" is off limits. He understood "scab" to mean a strike breaker or someone crossing a picket line. Someone who has acted as a scab, by taking some else's job, is regarded as a scab for life. Mr Wyatte agreed that the reason such people are being called "grubs" is because people on the picket can't say the word "scab" anymore. In relation to having engaged in a chant: "Jimmy, Jimmy, Jimmy, grub, grub, grub" Mr Wyatte agreed that it was focused on a particular Mine Deputy who was driving the "shearer, shearer, shearer" while CFMEU members were on strike and that the chant was targeting that person and singling him out.[66] Mr Wyatte also said that if the footage was viewed, he would be observed to have been waving and smiling at the car when it went past demonstrating that the chant was meant in a light hearted manner.

[54] Mr Jarrett knew that there had been a case when some had gotten into trouble for using the word "scab". The use of that word is discouraged because the CFMEU does not want people to get into trouble; it does not reflect a change in philosophy about the concept of a scab. Mr Jarrett would regard a person who crossed a picket line as a scab but he would not call them that. Further Mr Jarrett would hold someone who crossed a picket line in contempt and as a pretty low sort of character. Because those on the picket line have been told that they can't use the word "scab" they use the word "grub" and the definition does not change, only the word. Mr Jarrett was also asked about chanting and said that while chants had been used throughout, but: "Not all the time, we don't have set chant hours. Like, if someone has a chant, the boys will chip in."[67] Employees also gave evidence alleging that staff and employees of contractors had provoked them as they went through the picket line.

[55] Mr Wynn said that notwithstanding the difficulty of attributing behaviour on the picket line to particular employees, he has identified some behaviour that can be so attributed. Mr Wynn has also been provided with copies of screen shots of social media posts by various employees and CFMEU Officials concerning, among other things, behaviour on the picket. On or about 11 July 2017, Mr Wynn requested Ms Cody from Human Resources to view the video footage of the picket line in light of relevant Glencore policy and if justified, prepare letters about any conduct that could be said to be inconsistent with that policy.

[56] Mr Wynn requested that the draft letters be provided to Mr Dobbie along with relevant video footage to allow Mr Dobbie to satisfy himself about the matters in the letters, settle them, get them out and otherwise run the investigative and disciplinary processes should this be necessary. At the same time, Mr Wynn collated social media posts about which he was concerned and arranged for draft letters to be prepared to employees about those matters also for the consideration of Mr Dobbie. Mr Wynn involved Mr Dobbie on the basis that he thought it appropriate that another officer within Glencore progress these matters with a view to Mr Wynn being the decision maker.

[57] Mr Wynn said that he made the decision to progress the allegation letters because he was concerned about the behaviour on the picket and related social media posts. Specifically Mr Wynn was concerned that the behaviour had been going on for an extended period of time and was not showing signs of getting better and that this was having a detrimental effect on other employees and contractors at the Mine. Mr Wynn was also concerned about health and safety implications of the conduct and most significantly that it was contrary to Company policy. Mr Wynn said that the investigative process is not complete and has been deferred due to these proceedings. No decisions have been made in respect of the letters in terms of substantiation of allegations or outcomes.

[58] Mr Dobbie said that he was asked by Ms Cody to review the material in relation to conduct on the picket line around 11 July 2017 when he was in Brisbane. Mr Dobbie told Ms Cody that he would review the material when he returned to the Mine site on 13 July and make a decision about it. Mr Dobbie agreed that Ms Cody stated that the material he was requested to review was video footage and that she was preparing allegation letters. Mr Dobbie also said that generally allegation letters in relation to discipline cases come from him, so that Mr Wynn is a step away and can review any disputes on site.

[59] After viewing the video footage on 13 July, Mr Dobbie said that he instructed Ms Cody to prepare the allegation letters. Mr Dobbie also said that he reviewed the policies and satisfied himself that there were breaches.[68] The proposition was put to Mr Dobbie in cross-examination that he had known about the fact that employees on the picket line were using the term "grub" well before he caused the allegation letters to be sent to them, and that if this was a breach at the point the letters were sent it was also a breach at the earlier time. In response, Mr Dobbie said that he had not seen the videos at the earlier time and that until he saw the videos he had only "assumed" that the term "grub" was being used generally. Mr Dobbie accepted that he wrote the allegation letters on 13 July 2017, but rejected the proposition that the decision to do so had anything to do with the fact that by that date the ballot for approval of the Company's proposed agreement was looking pretty dire. Mr Dobbie agreed that he knew by 13 July 2017 that things were pretty dire for the ballot and that he had this knowledge at the time the letters were written.[69] Mr Dobbie had the following exchanges with Counsel for the CFMEU:

[PN1550] The process that you started was a disciplinary process, the one thing that you knew at the time from the videos because it's in your letters is that you had names and people saying the word "grub", correct? -Yes.

[PN1551] You were telling people that that was a) misconduct, correct? -Yes.

[PN1552] And b) a serious matter, correct? -Yes.

[PN1553] The first time, the first time that you did that was the day after the ballot closed, correct? -Yes.

[60] Mr Dobbie said that the first step the process of raising an allegation, whether it goes down a path of disciplinary action or not, is to have a discussion with the employee concerned. Mr Dobbie maintained that there was no opportunity to do this with the majority of employees who received the allegation letters, because they were not at work at the time the letters were prepared. There was a discussion with one of the employees - Mr Saunders - on 15 July 2017 when some employees returned to work. Mr Saunders was the only employee in the group who returned on 15 July who was to receive a letter. There was also a discussion with one of two employees who turned up for the night shift on that date, who were also to receive allegation letters, but were not given those letters at the time. In response to the proposition that the letters could have been given to employees without talking to them, Mr Dobbie said that this is not the preferred approach but that it was eventually adopted because the employees were on strike. Mr Dobbie had the following exchange with Counsel for the CFMEU in relation to the timing of the allegation letters:

[PN1584] Can I deal with - so I want to make it very clear to you, that the suggestion is that things have happened in the preceding or since the middle of June in terms of people being called grubs and people holding grub signs, and the other expression, maggot and fucking grub. All of those things have been happening since mid-June and you knew or reasonably deduced that they were happening since mid-June and the first time that you did something about it in terms of telling people, that is telling the people that that was an allegation of misconduct was after 14 July. That's correct, isn't it? -Yes, that's correct.

[61] Mr Dobbie agreed that he proceeded down a disciplinary path by giving allegation letters to employees without having received a formal complaint about their conduct and that this was not the normal course of events. Mr Dobbie said that he is aware that CFMEU members have made complaints about the behaviour of contractors in relation to the picket line but he has not proceeded to investigate these complaints because they are not formalised. Mr Dobbie denied that he is treating CFMEU members differently by not dealing with their issues in the absence of a formal complaint on the one hand while instituting disciplinary processes against them without having formal complaints on the other hand.

[62] Mr Wynn rejected the proposition put to him in cross-examination that the allegation letters could have been sent at an earlier date without the need to sit down with employees stating that this is not the normal practice of the Company. Mr Wynn also rejected the proposition that the Company had waited to issue the letters to let employees know that they would be in trouble if they did what the CFMEU told them to do. Mr Wynn had the following exchange with Counsel for the CFMEU:

[PN2795] In circumstances where you had held up your sleeve the whole time, the question of disciplining or starting a disciplinary process in respect of words that were spoken - grub, fucking grub or maggot, since the middle of June? -Again, activities on the picket line or social media were taking place and the time period that elapsed was just the time taken to start the investigation to seek advice. But again, the first available opportunity they came back to work on the 15th and 16th, we started the process of issuing the letters.

[63] Mr Wynn agreed that he had not commenced to seek advice about the conduct on the picket line until 11 July and that he knew that people were being called "grubs" by persons on the picket line on or around 15 June.[70] Mr Wynn also agreed that no-one had made a complaint or claimed to have been offended about the use of the term "grub" by employees on the picket line including those to whom allegation letters had been sent.[71]

[64] During cross-examination, Mr Wynn and Mr Dobbie were shown an email dated Wednesday 12 July and time stamped 08:47, from Mr Nicholls to Mr Cribb, attaching a draft letter in relation to the conduct of employees on the picket line in the following terms:

Protest at entrance to Oaky North - confirmation of expectations

As you will be aware, a protest has been established at Grasstrees Road, near the entrance to the Oaky North mine.

Oaky Creek Coal recognises the rights of employees to take protected industrial action, to participate in lawful industrial activity, and to engage in peaceful protest.

However, employees who participate in such action and activity remain required to comply with the Code of Conduct and to act in a manner that is consistent with the value and behaviours promoted by Oaky Creek Coal.

Conduct which is derogatory, intimidating or offensive, is inconsistent with the Code of Conduct and Oaky Creek's value and is not acceptable.

For the avoidance of doubt, employees who are identified in engaging in these behaviours (including while protesting), may be subject to disciplinary action, which may include dismissal. These behaviours include, but are not limited to:

• Directing comments/insults/words towards workers and visitors to the mine such as "scab", "grub", "maggot", "dog", "cunt", "fuckwit", "asshole" or other derogatory terms;
• Simulating masturbation as vehicles pass the protest;
• Making a throat cutting gesture towards occupants of vehicles entering/exiting the mine;
• Taking photos of vehicles and/or their occupants entering or exiting the mine;
• Using a motor vehicle in a manner which hinders, obstructs, impedes or delays, persons from entering or exiting the mine;
• Engaging in conduct which creates a risk to the health and safety of another employee or member of the public;
• Engaging in conduct which could be considered intimidation or threatening.

If you have any question in relation to this letter or Oaky Creek Coal's expectations, please don't hesitate to contact me."[72]

We will be writing to employees regarding the picket line behaviour.

[66] Mr Wynn said that they had not seen the email or the proposed letter before it was shown to them in these proceedings, but was aware of the words in the letter because they were part of a script he read to employees on 15 July when they returned to work. Mr Wynn also said that he could not recall a proposal to send a letter in the terms of the draft attached to the email or whether he had a conversation with Mr Cribb or Mr Nicholls before the allegation letters were sent to employees. Mr Wynn maintained that it was his decision to send the allegation letters to employees. Mr Wynn also said that he could not answer questions about the fact that two more senior managers had conducted an email exchange in which sending a reminder letter to employees about the same matters was discussed, a few days prior to the letters sent by Mr Wynn. Mr Wynn rejected the proposition that when he caused the allegation letters to be sent, he was unhappy about the rejection of the Company's proposed agreement, stating that this did not come into his decision about the allegation letters.

[67] Mr Wynn also said that he was not surprised that employees had rejected the Company's proposed agreement. The Company put its proposal to employees at the suggestion of Mr Brodsky, who had stated that the Company should take its position to employees on the basis that it was the best offer the Company would make. After the Company decided to put its proposed agreement to a ballot of employees, the CFMEU conducted a "national day" in Tieri where they told employees to vote against the proposal. Mr Wynn agreed that at the time he was involved in the drafting of the allegation letters, he knew that the Company's proposal was going to be rejected by employees.

[68] Mr Dobbie, in cross-examination about the email of 12 July 2017 and the draft letter appended to it, agreed that the draft letter differed from those he had sent to employees on 14 July 2017 but maintained that he had not previously seen the draft letter. Mr Dobbie said that he did not see the allegation letters until Friday 14 July 2017 and that he was not aware that there was another draft version that was to be sent out under the signature of Mr Wynn and could not provide an explanation in relation to that document.[74] Mr Dobbie also agreed that at the time Ms Cody drafted the allegation letters he had not received any formal complaints from employees about conduct on the picket line or received anything from anybody that suggested they were intimidated about being called a grub.[75]

[69] Further, Mr Dobbie agreed that no one had complained about being harassed by the conduct on the picket line. Mr Dobbie also agreed that he had no basis for forming the view, having seen the video footage, that anyone had been intimidated by being called a grub. In re-examination and further cross-examination, Mr Dobbie said that he was mistaken with respect to this evidence and that he had received a complaint on 11 July 2017 about a "throat cutting gesture" being made by a protestor on the picket line and was not sure about the timing of the other complaints.

[70] The allegation letters in relation to the social media posts were drafted on 13 June 2017 and were not actioned until 18 July 2017 when they were emailed to employees along with the letters in relation to conduct on the picket line. An email was shown to Mr Wynn in cross-examination dated 30 June 2017 from Ms Cody, attaching draft allegation letters in relation to the social media conduct dated 13 June 2017. Unlike the first drafts of the allegation letters in relation to picket line conduct, the drafts in relation to social media conduct are in essentially the same terms as the versions that were sent to employees on 18 July 2017.

2.4.2 Allegation letters in relation to conduct on the picket line

[71] Allegation letters in relation to the conduct on the picket line were sent to Mr Ahern, Mr Allen, Mr Andolfetto, Mr Barass, Mr Batey, Mr Bidgood, Mr Clark, Mr Corrie, Mr Curry, Mr Davis, Mr Flavel, Mr Farmer, Mr Jarrett, Mr Kaspowicz, Mr Murray, Mr O'Donoghue, Mr Saunders, Mr Slatter, Mr Sullivan, Mr Thompson and Mr Wyatte. Those letters are headed: "Alleged misconduct and breach of Glencore's EEO, Discrimination, Harassment & Bullying Policy and Performance and Conduct Policy". The letters state that Mr Dobbie has become aware of what appears to be conduct which may be in breach of the relevant policy. The letters also state that the Company recognises the rights of employees to take protected industrial action, to participate in lawful industrial activity and engage in peaceful protest. The letters then go on to state that:

"However, employees who participate in such action and activity remain required to comply with the EEO Policy, and to act in a manner that is consistent with the values and behaviours promoted by the Company, including treating everyone with respect and courtesy.

I have been provided with footage taken by the Company's security monitoring the protest. Having reviewed the footage, I am concerned that you have acted in a manner which is inconsistent with Glencore Values and may be in breach of the EEO Policy and Conduct Policy."

[72] The allegation letters in relation to the conduct on the picket line then set out the dates on which the conduct is said to have occurred and the nature of the conduct and state that relevant footage or photographs are enclosed. Variously the letters assert that on dates between 2 and 6 July 2017, the footage appears to show employees engaging in one or more of the following forms of conduct:

• Yelling at the occupant of a vehicle exiting the Mine and referring to the person as a "grub" or a "fucking grub" or a "maggot" or yelling "go you grub";

• Holding up a sign with a drawing of a large grub on it; and/or

• Using a mobile telephone to film/photograph vehicles and their occupants leaving the Mine in a manner that was clearly designed to be intimidating to the occupants of the vehicle.

[73] The letters state that the relevant conduct is:

• Inconsistent with the Company's values, disrespectful and offensive;

• Likely to be intimidatory; and

• Likely to be in breach of section 5.4 of the EEO Policy in that such behaviour may constitute harassment.

[74] The letters conclude with the following paragraphs:

"I am satisfied that your apparent conduct at the protest has sufficient connection to your work, given that your actions were directed at persons passing through the protest when exiting the mine.

Your conduct if proven, is serious. Such conduct would be inconsistent with the values of the Company and the culture we wish to nurture at Oaky North. Further it may constitute a breach of the Company's policies as outlined above and may result in disciplinary action being taken against you...

Before concluding my investigation in relation to these matters I would like to give you the opportunity to respond to these allegations.

You are directed to provide a written response to these allegations by 4.00 pm on Thursday 20 July 2017.

If after concluding my investigation I consider that you have misconducted yourself, I will provide you with an opportunity to respond prior to imposing any disciplinary outcome."

2.4.3 Allegation letters in relation to social media activities

[75] The allegations with respect to activities of employees on social media concern five employees: Mr Allen, Mr Armstrong, Mr Jarrett, Mr McConachy and Mr Lake. The letters in relation to the alleged breaches of the Social Media Policy deal with two categories of alleged breaches. Mr Allen, Mr Armstrong, Mr Jarrett and Mr McConachy are alleged to have breached the Social Media Policy by posting comments on a Facebook page established and operated by a group called "Oaky North CFMEU Lodge". Their evidence is that they believed that this Facebook page was private and could only be accessed by Lodge members. Mr Lake is alleged to have breached the Social Media Policy by posting a comment on a Facebook page established and operated by a local newspaper the Daily Mercury, in response to a link to an article in the newspaper about workers being locked out of the Mine.

[76] The alleged breach of the Social Media Policy on the part of Mr Allen is that on 12 May 2017, he posted a comment on the Oaky North CFMEU Lodge Facebook page in the following terms:

"Boys as you will see the notice board has been removed from the bathhouse and place outside in the weather. Darren Nicholls has removed the Union notices from it and place training expressions of interest on there. I think it's great but would like too see all names removed until after our dispute is settled and we have a decent EA signed sealed and delivered. All he is doing is trying to divide the Lodge by buttering up a few blokes and all training will be done on O/T you can guarantee it too try drive a wedge in there or get you to fuck up the protected action. If you have any questions please call me boys but don't buy into this cunts politics and used car salesman routine. In Unity Dan."

[77] It is further alleged that Mr Allen breached the Social Media Policy by making a post on the CFMEU Oaky North Lodge Facebook page on 29 May 2017 which contains a link to an ABC online news site and states:

"Check out this shit boys and too the dog who likes to show our posts to big mouths I know who you are and go for your life show em this one you maggot."

[78] It is alleged that Mr Armstrong breached the Social Media Policy by posting a comment "Lynching in order" under Mr Allen's post. Mr Jarrett is alleged to have breached the Social Media Policy by posting the following comment on the CFMEU Oaky North Lodge Facebook page on 12 May 2017:

"Lads I want to make something really clear, Darren Nicholls is not our friend. The hand shakes on the go line, telling blokes 'great job, have a shower and go home early' and putting expression out for deputies courses is all part of his act. This man is cunning and manipulative. He is the reason we are on protected action. He gave us Mark Kirsten, pay cuts, approved not paying process crew for public holidays, threats against blokes who supported black lung, unwarranted discipline action, didn't approve transfers from 1 to North and the list goes on Management have started trying to divide the lodge with rumours and it is imperative that we stick together. You boys trusted us on black lung, we have fought them with your disputes and now you need to trust us with the decisions we make while on protected action. Every decision has the interest of the rank and file at Oaky North and has the full support of the CFMEU State Officials. If anyone has any issues please contact an executive. Be safe and smart boys.

[79] The allegation that Mr McConachy breached the Social Media Policy is based on a post placed on the Oaky North Lodge Facebook page by Mr McConachy commenting on Mr Jarret's post in the following terms: "That's hilarious. I think it goes to show what lengths this fuckwit is gonna take." The comment is alleged to be in relation to Mr Nicholls who is mentioned in Mr Jarrett's post. The allegation with respect to Mr Lake's alleged breach of the Social Media Policy is that on 11 June 2017, he commented on a Daily Mercury Facebook page with a link to an article about the lockout at the Mine, by posting a cartoon type image of a figure holding a pick standing over another person, with the words: "How to pick a scab. Step 1" together with a comment by Mr Lake: "Quite a few in these comments that need this."

[80] In his statement, Mr Lake admitted making the post on 11 June 2017. Mr Lake said that he was not aware that it breached the Social Media Policy and still does not understand how this can be the case when the post says nothing about Oaky North and as far as he knows no one from the Mine participated in the debate. Mr Lake points to the fact that many of the posts in the debate were critical of the striking miners and some even called for the workforce to be sacked and replaced. The comment was intended in jest and Mr Lake does not advocate violence against anyone but thought the graphic was an amusing way of signalling his unhappiness with people on the forum advocating against the striking miners.

[81] Mr Jarrett said in his statement that he is not familiar with Glencore's Social Media Policy. Mr Jarrett admits that he posted the comments about Mr Nicholls on the CFMEU Facebook page to warn the members in his role as their representative, about his concerns with Mr Nicholls. Mr Allen also admits that he posted comments about Mr Nicholls on the CFMEU Facebook page. Mr Allen said that he did so in his role as Union representative to alert members to what he considered to be a risk associated with Mr Nicholls and consistent with what he was elected to do and what he does on a regular basis at meetings. Mr Allen said that he posted the comment on the CFMEU Facebook page believing that it was private and it would be safe to do so. The second post was also made by Mr Allen on the basis that it was posted on a private page. Mr Allen states that he was not trying to threaten or intimidate anyone and he did not know who had leaked the contents of the page. Mr Allen was trying to persuade that person to stop. Mr Allen does not regard the word "maggot" as offensive or intimidating and has used it over the years without being chipped about it by the Company. A number of witnesses for the CFMEU also alleged that Mr Nicholls had used foul language on occasion directed at employees. Mr Wyatte said that when there was a brief stoppage of work in November 2016 in relation to concerns about Black Lung disease, Mr Nicholls yelled at employees as follows:

"You cunts have two fucking choices. You can get back in those vehicles and fuck off back underground or can go through the bath house and out the gate and see what happens. If you leave I will take you to Court. You have five fucking minutes to decide."[76]

[82] Mr Wyatte maintained under cross-examination that this was what Mr Nicholls said to employees but agreed that on the day the comments were allegedly made, employees had stopped work suddenly before the end of a shift to attend a meeting about black lung that was to be held in Tieri. Mr Wyatte further agreed that as a result of the stoppage the Commission issued orders against the employees which were consented to by the CFMEU.[77] Mr Wynn said that Mr Nicholls did not swear at employees in the manner alleged but told them they had two choices - to get into the vehicles and return to work or go through the bathhouse and out the gate, in which case Glencore would pursue this matter with the Fair Work Commission. Mr Nicholls also told the employees they had five minutes to decide what they would do.[78]

[83] Mr Armstrong admits to making the post about lynching on the CFMEU Facebook page. The comment was intended to respond to the previous comment of another employee. After Mr Lake made the post another employee told him that a colleague was offended by the reference in the post to lynching. Mr Armstrong said that he immediately deleted the post and apologised. Mr Armstrong tendered a copy of the apology message he sent to the colleague. Mr Armstrong also said that the post was visible for a period of approximately two hours and he was not taking protected industrial action when he made the post.

[84] Mr Jarret said in cross-examination that his post was referring to conduct engaged in by Mr Nicholls in the workplace and he wanted to convey to his colleagues that Mr Nicholls was not their friend and was putting on an act. Mr Jarrett agreed that he also wanted to convey a message that Mr Nicholls could be cunning and manipulative. In response to the proposition that he was bagging Mr Nicholls, Mr Jarrett said he believed his comments were true and it was not bagging. Mr Jarrett had the following exchange with Counsel for OCCPL:

[PN1071] And going back to the words that you used, you wanted people, going forward, to see Nicholls as being a person who, in effect, couldn't be trusted. Correct? -If my one post had that sway on people, then I should be running for parliament, but I was just putting my position forward to the union. Putting my position forward and it being forward to the Lodge as if it was a union meeting. That's the idea of the page, is to convey messages. I'm an executive. We don't always have meetings. I had a concern and I needed to let the members know of my concern.

[PN1072] But the message that overall you were trying to send, I suggest, is that insofar as people interact with Nicholls at work, don't trust him? -Look, yes.

[85] Mr Allen also concedes that he called Mr Nicholls a "cunt" but said he did this not to denigrate Mr Nicholls but because this is how employees talk at the Mine.

[86] Letters under the signature of Mr Dobbie in relation to the alleged breaches of Social Media Policy were sent on 18 July 2017 to Mr Allen, Mr Armstrong, Mr Jarrett, Mr McConachy and Mr Lake. Those letters are headed: "Alleged misconduct and breach of Glencore's Social Media Policy". The letters state that a copy of the relevant post is enclosed. The letters to Mr Allen and Mr Jarrett state that their conduct in posting a comment about Mr Nicholls on a CFMEU Facebook page may breach Glencore's Social Media Policy as:

• The post references Mr Nicholls without his approval;

• The post could be interpreted to reflect negatively on Mr Nicholls or could embarrass or humiliate him; and

• It is derogatory about Mr Nicholls.

[87] The letter to Mr Armstrong states that the post may breach the Social Media Policy because:

• It could reflect negatively or embarrass an employee;

• It is derogatory about another person suggesting a lynching is in order for the person who showed the posts to "big mouths"; and

• It is threatening and may amount to cyber bullying.

[88] The letters to Mr Allen, Mr Jarrett and Mr Armstrong state that notwithstanding that the CFMEU Facebook page is a private group the Social Media Policy makes it clear that no site is private and employees must conduct themselves as they would at work. The letters variously assert that the posts are threatening or could encourage violence against a person. The letter to Mr Lake states that the comment on the Daily Mercury site is capable of being viewed by the public and has been viewed and liked by other employees and that Mr Lake's Facebook page refers to his employment with OCCPL. The letter further states that if proven, the comments may constitute derogatory or threatening comments about other persons and could be interpreted as inciting violence against those persons. The letters also make reference to training having been provided in relation to the Social Media Policy.

[89] Under cross-examination Mr Dobbie said that Ms Cody also told him on 11 July that he needed to deal with the social media posts. Mr Dobbie also said that he was only aware of one post - that of Mr Lake in relation to how to pick a scab - as he had seen that post on Facebook. Mr Dobbie agreed that the post had been made on 11 June 2017 and in response to the proposition that he had seen it at that time and done nothing about it, Mr Dobbie said that he sent the post to Mr Nichols and Mr Wynn because he thought it was relevant because people might take offence to it.[79] Mr Dobbie said that he did not raise the post with Mr Lake because he was on strike. Mr Dobbie denied that he sent the post to Mr Wynn to assist in an investigation to build up a body of information to use against people. In response to a question about whether he told Mr Wynn that there were other posts that might assist him in his investigation, Wynn said: "What investigation".[80] Mr Dobbie also denied that Mr Nicholls was conducting an investigation into social media activity.

[90] After denying knowledge of an investigation into Facebook posts, Mr Dobbie was shown an email apparently sent by him to Mr Nicholls on 13 June 2013, in the following terms:

Get someone to look at Job in Mining on Facebook, there are heaps of comments (relating to newspaper article) from OCN EA employees that have some things to say, might be useful for your investigation - some comments are threatening.

[91] In response to a question as to whether the email or his evidence was true, Mr Dobbie said: "I'd have to say the email based on what's written there." Mr Dobbie was then asked a series of questions about the investigation referred to in his email and whether it was about the building up of a body of information to be used as a weapon or artillery in a disciplinary process. Mr Dobbie responded by saying he was not conducting an investigation, that he did not know or could not recall what the investigation was about. Finally Mr Dobbie said: "No, I'm saying based on that email, I must have been aware of an investigation. No, I can't recall."[82]

[92] Mr Wynn's evidence under cross-examination was that he was provided with copies of the posts on the Oaky North Lodge Facebook page, by a person whom he assumed had access to that page, perhaps on the basis of membership. I did not allow Mr Wynn to be cross-examined about the identity of the person who provided him with the posts on the basis that I was concerned at possible repercussions should that person be identified and identification of the person was not critical to the CFMEU's case. Later Mr Wynn said the information was provided to him by more than one person. Mr Wynn agreed that the Company initiated an investigation referred to as "Project Zuckerberg" which he said was related to the alleged social media breaches. In this regard, he was shown an email from Ms Cody to himself and Mr Nicholls with the subject line: "Confidential and privileged - Project Zuckerberg" attaching draft letters to Mr Armstrong, Mr McConachy, Mr Lake, Mr Allen and Mr Jarrett, in relation to the alleged social media breaches. That email was dated 30 June 2017. As previously noted the draft letters attached to the email were dated 13 June 2017.[83] Mr Wynn also agreed that Mr Dobbie had sent him several things on Facebook that Mr Dobbie deemed were maybe inappropriate.[84]

[93] The persons who received the allegation letters gave evidence of distress and concern caused by the letters; indicated that they were fearful for their employment; and that it would impact on their ability to fully participate in bargaining for a new agreement. Mr Bidgood said that if members of the Lodge started to lose their jobs it would torpedo the bargaining campaign because people would be too scared to stand up to the Company. Mr Wyatte also expressed concern about the collapse of bargaining if members of the Lodge Executive were dismissed and the loss of faith this would cause employees to suffer. Mr McConachy said if people lost their jobs because of conduct on the picket line it would be a huge problem for bargaining because no one would be left to stand up to the Company. Mr Thompson said that if one of the members lost their job it would create a culture of fear for the remaining members and they would not be able to get a good bargaining outcome. Mr Batey said that if the Company could get away with sacking employees in these circumstances it would probably bring an end to bargaining due to fear on the part of employees. Mr Farmer said that when he first read his letter it made him feel sick in the guts and like he just wanted the dispute to be over. Mr Thompson said that when he read his allegation letter, it made him feel that he just wanted the dispute to be over so that he would not have to put up with these attacks from the Company. [85]

[94] Mr Brodsky said that the letters had reduced the willingness of employees to actively participate in the picket. It is also the case that the persons who have received the letters of allegation are all members of the Lodge Executive, except for one. Those members of the Lodge executive are the entirety of the employee bargaining representatives. All of the employee witnesses outlined their personal circumstances and the impact of losing their jobs and expressed fear and concern in this respect and the difficulties they would face obtaining alternative employment.

2.5 Direction in relation to CFMEU branded clothing and events of 15-16 July 2017

[95] Mr Dobbie's evidence is that OCCPL was advised at short notice, that industrial action scheduled for 15 and 16 July would not take place and that employees would return to work on those days. The first group of employees to return to work did so on Saturday 15 July with employees who would have been rostered to work shifts commencing at 6.00 am, 9.30 am, 6.00 pm and 8.00 pm reporting to work at or around those times. Mr Wynn arranged for training to take place for each shift on the basis that OCCPL was informed of the return to work at short notice and had an alternative workforce in place already. After the training sessions, employees were sent home with pay on the basis that they were deemed to be surplus to requirements.

[96] According to Mr Dobbie, the majority of the employees who came to work on 15 and 16 July were wearing a fluorescent yellow/green CFMEU shirt that they had been wearing on the picket line. Mr Wynn addressed each shift and told them to remove the shirt before entering the Mine because it had been worn on the picket line and he had received complaints about the behaviour on the picket line. Employees were provided with alternative shirts to change into. When they had changed their shirts employees were taken to the training room where Mr Wynn addressed each shift telling them the standard of behaviour that he expected. This included saying words to the effect that the behaviour on the picket line was not acceptable and will not be tolerated on site. Mr Wynn also told employees that if they did not comply they needed to leave the site. Mr Wynn read from a script but in short told employees he would not accept terms such as: "dog, maggot, scab, cunt, fuckwit and grub". Mr Wynn then said words to the effect that if that sort of behaviour was to continue on site, he would personally walk each man to the gate and follow through the disciplinary process.[86]

[97] Mr Wynn set out in his statement the script that he used to address each meeting. Relevantly Mr Wynn's evidence in this regard (in summary) is that he stated to employees that:

• OCCPL recognised their right to take protected industrial action, engage in peaceful protest and lawful industrial activity;

• Conduct had been displayed by some at the protest that is inconsistent with OCCPL values and culture and had been nothing short of disgraceful;

• Offensive conduct directed at those the picketing employees worked with is personally offensive and hurtful to them, a breach of company policies and procedures and unsafe and inconsistent with the safety culture at the mine; and

• It is utterly unacceptable to engage in conduct which is unsafe, disrespectful, offensive or intimidating.

[98] Mr Wynn went on to list specific conduct of the kind which has been set out elsewhere in this decision. He then states that he told employees:

"So that I am absolutely clear, any of the nonsense that has been going on out the front is not to be brought to this mine. You will treat every person that you work with, with respect and with courtesy and you will adhere to the values and the policies and procedures of the Company. Anything less than this will not be tolerated. Further any victimisation of staff or contractors will equally not be tolerated. If you are not prepared to conduct yourself in a manner that is consistent with the values and policies of Oaky North I suggest you look for work elsewhere.

If I can return to the conduct at the protest for a moment. You need to understand that your conduct at the protest is connected with your work. As I have said, your right to take protected industrial action, to participate in lawful industrial activity and to engage in peaceful protest is respected. However, if we identify conduct at the protest which is inconsistent with our values and our policies and procedures, disciplinary action may follow."

[99] Mr Wynn then went on to remind employees of the policies in relation to Performance and Conduct, EEO and Social Media and pointed out their application outside the workplace in circumstances where interactions impact on the workplace and Company reputation. Mr Wynn left the training room after he made his statement and returned at the end of the session to answer questions. Mr Wynn said that he has not received reports about conduct of contractors in relation to employees on the picket line or observed behaviour of the kind referred to by employee witnesses in these proceedings. Mr Wynn also said that he is not aware of any occasion when an employee at the Mine has made a complaint about interference by employees of contractors at or around the picket.

[100] The evidence of witnesses for the CFMEU was that they decided to return to work on 15 and 16 July 2017 after the Company's proposed enterprise agreement was rejected, on the basis that they thought that this would encourage the Company to resume negotiations and as a show of good faith. In relation to the wearing of Union clothing, the evidence was that prior to 15 July 2017 employees had been permitted to wear clothing branded with CFMEU material in and out of the Mine and prior to changing into work clothes and in the mess. Most of the employees claimed that they usually wore this kind of clothing at work. When they returned to work on 15 July employees were told that they were not permitted to wear what they described as their Mayday shirts - a fluorescent green long sleeved shirt - but that other Union branded clothing was acceptable. A number of CFMEU witnesses said that the reasons given by Mr Wynn for this were variously that the shirts had been worn on the picket line and he had received complaints from coal mine workers about those shirts being worn on site and had to think of their safety and that due to harassment claims from the picket line, employees were feeling intimidated by the Union clothing.

[101] Mr Richardson provided a detailed statement about the events of 15 July.[87] Mr Richardson said that B Crew outbye presented themselves at the turnstile at around 5.40 am on that date. The crew was required to wait near the turnstile for 25 minutes for Mr Wynn to let them in. During that time, contractors were walking through the turnstile and according to Mr Richardson smirking at the employees who were returning to work. Mr Wynn arrived and let employees in through a locked gate rather than the turnstile and told them to go directly to the training room. Mr Richardson said that once they were in the training room, Mr Wynn addressed them stating that:

• He was disgusted at the behaviour and gestures which were happening on the picket line;

• It was bullying and harassment;

• No-one would call people names such as: "scab, cunt, maggot, grub and fuckwit"; and

• This would not be tolerated.

[102] According to Mr Richardson's statement, another employee, Mr Morrisey asked Mr Wynn whether contractors were going to be put through the same training and Mr Wynn responded by stating: "If you interrupt me again I will march you off site." Mr Wynn left while the training was being conducted, and returned when it was completed and made statements including that employees would be required to work within Company guidelines and that the Company had cut more tonnes last week than it had ever done and would continue to do so if employees "kept it up". At the end of the meeting, Mr Wynn said to employees: if we go in there and "argue", "harass" or "even look sideways at a staff member or contractor" "you will be gone". Mr Wynn concluded by stating that if employees came back tomorrow they would be agreeing to work under those conditions and walked up to each employee "in their face" and asked them to confirm their understanding of what he had said. Mr Wynn then sent the crew home and told them he would pay them for the day. The crew decided not to return to the picket line because they were being paid.

[103] On 16 July 2017 when Mr Richardson again presented for work, he was told to remove his CFMEU jacket. Mr Wynn stated that although he had told Mr Richardson it was alright to wear the jacket yesterday, he had changed his mind. When Mr Richardson protested and pointed to a contractor who was wearing an Electrical Trades Union jacket, Mr Wynn told Mr Richardson that he did not see that and if Mr Richardson did not remove his jacket he would not be allowed to enter the Mine site. The rest of the crew were then sent home with pay, on the basis that they were surplus to requirements.

[104] Samples of the clothing referred to in the evidence was tendered. The fluorescent shirt is printed on the back with the Eureka Flag and the Words: "Stand Up. Speak Up. Fight back." The front and back of the shirts has CFMEU printed on it and the names of various entities including law firms, and insurance companies are printed on the left arm of the shirt and the words "May Day 2017" are printed on the right arm of the shirt.[88] The jacket which employees state that they were directed to remove on 16 July 2017 is a fluorescent yellow hooded jacket with a zipper in the front. It has the logo and names of the CFMEU Queensland and Northern Territory Branch on the back and the letters CFMEU on both the back and front.[89]

[105] Mr Matthew Earl was rostered to work on the shift commencing at 8.00 pm on 15 July 2017. Prior to attending for work, Mr Earl attended a meeting with the CFMEU Lodge Executive at which he was told about what had occurred with respect to the earlier shifts when employees had attended for work. Mr Earl was told that the Company would make them sign policies and that they should "go in, keep their heads down, comply and make it out the other side without getting disciplined."[90] Mr Earl gave evidence about Mr Wynn's address to the meeting which was generally consistent with that of Mr Richardson, except that Mr Earl said that Mr Wynn stated that he will personally make sure that employees are run out of the business and will never get a job in the industry again, if they continued down the path they were on. Mr Earl also said that Mr Wynn talked about respect and courtesy towards the workforce and made it clear that hand gestures involving throat cutting and the use of a middle finger were not acceptable.[91]

[106] According to Mr Matthew Earl, the employees at the meeting asked about when the various policies applied and were told that the EEO policy applied at all times although this was not clear. An employee asked about privacy and the activities of security personnel and why the vehicles of security personnel were not labelled. Mr Wynn said that this was not necessary as security personnel were not undertaking crowd control and they would continue their activities for the safety of the town. Mr Matthew Earl also said that he did not hear the whole conversation from Mr Wynn because there was a lot of cross-talking going on.

[107] Mr Brady said in his statement[92] that he attended a meeting at the Mine on 15 July. According to Mr Brady, the meeting was addressed by Mr Wynn who stated that "Behaviour on the picket line needs to stop at the gate" and that employees could "get the fuck out now and not come back if there is a problem with that". Mr Wynn also stated that if employees wanted to "continue with this bullshit" there would be no place for them at the mine and that pointed out that the name calling was being directed to women and they were to stop calling people names such as "grubs, cunts and scabs". Further Mr Wynn stated that there is a place for employees at the Mine if they want to stay and that if they don't, he will march them off the Mine himself. Mr Brady left the training room at some point, and when he returned, Mr Wynn stated that they were not to do any more name calling on the picket line and if that direction was followed employees would be allowed back on the site. Mr Wynn also told the group that the Company had proven that it could cut coal without employees on the site and that:

"You will have to tow (sic) the line at Oaky North. If you don't tow the line I will personally march you off site and make sure you never work in the lower Bowen Basin again."

[108] Mr Ben Earl was in the crew that was due to commence work at 9.30 am on 15 July 2017. Mr Ben Earl's version of the address that Mr Wynn made to his crew is set out in his witness statement as follows:

"We were lead into the training room. Damien Wynn then gave us a speech saying:

(a) How disgusted he was with our activities on the picket line;

(b) That he didn't like the aggressive manner that we were portraying;

(c) He didn't like the behaviour that was directed towards women on the Mine site;

(d) That he heard the following names were used:

• (i) Scab,

• (ii) Maggot,

• (iii) Cunt;

• (iv) Grub;

• (v) Dog; and

• (vi) Fuckwit.

(e) That we weren't to use those names again;

(f) Anyone who appears to act in that manner on site will be directly marched off site;

(g) That he would talk and if anyone spoke over the top of him or if he felt they were being disruptive that he wold have them marched off site; and

(h) That we would be doing training that day".[93]

[109] Mr Wynn accepted that when he addressed employees on 15 and 16 July he spoke sternly, but denied that he told them to "fuck off" or "get the fuck out" or that he would make sure they would never get a job in the industry if they kept going up the path they were on. Mr Wynn said that he did say words to the effect that if employees looked at staff or contractors in a way that is intimidating or behave unacceptably, he would personally walk them off the site.[94] Mr Wynn also accepted that a number of examples he gave about what he regarded as unacceptable language contained swearing and unacceptable behaviour, but were given as examples. Mr Dobbie said that he attended the training sessions with Mr Wynn and supported Mr Wynn's evidence about what he said to employees when he addressed them.

[110] After being addressed by Mr Wynn, the employees who returned to work on 15 and 16 July 2017 were provided with training in relation to policies with respect to EEO, Social Media and Code of Conduct. The employee witnesses who gave evidence about this training said that it consisted of looking at overhead slides and they were not provided with copies of the relevant policies. Mr Wynn agreed that employees were not provided with copies of the relevant policies during the training on 15 and 16 July 2017 but said that they were told that they could access the policies electronically. According to Mr Wynn, since the briefing of employees on 15 and 16 July 2017, over 70% of staff and contractors have received refresher training in each of the EEO, Harassment and Discrimination Awareness, the Company's Media and Public Relations Protocol Policy and the Code of Conduct. That training is ongoing.

[111] After leaving the site on 15 and 16 July 2017, employees took protected industrial action from 17 to 20 July 2017 and after that date the Company instituted employer response action by locking employees out of their employment. The lockout is still in effect.

[112] It is not in dispute that from May 2017, OCCPL engaged a contract security firm to conduct security operations at the Mine and in Tieri. On occasion the Company also engaged a private investigator in connection with security activities. Security staff filmed employees on the picket line. The allegations made by the CFMEU in this case do not concern the surveillance of those participating in the picket line near the entry to the mine. However, the CFMEU alleges that surveillance of employees was also carried out when they were at their homes and in the town of Tieri. A significant number of employees who provided statements in these proceedings said that they had observed security personnel driving past their homes, sometimes on numerous occasions in one day. Some employees asserted that they and their family members were filmed or that recording devices were protruding from windows of cars driven by security staff. Employees also reported being followed in town and that security staff had been filming them using body cameras, while employees were at the local pub.[95]

[113] OCCPL maintains that the scope of security operations is to monitor behaviour on the picket line including to ensure the safety of persons entering and exiting the Mine and to ensure the safety of staff living in Tieri and the assets of the Company located in the town. In a supplementary witness statement Mr Wynn said that he made the decision to arrange surveillance of the behaviour on the picket and on a limited basis, in Tieri. Mr Wynn's decision to conduct surveillance on the picket was to make sure that the Company kept up to date with that behaviour so that it could be managed including in respect to safety of entrants to the mine. The decision to conduct surveillance in Tieri was in response to a concern that the industrial dispute not escalate and that Company personnel and assets be protected.

[114] Mr Wynn said that he is conscious that Tieri is a "one policeman" town and the surveillance would assist in providing reassurance to some members of the Tieri community Mr Wynn is also conscious to ensure that the Company's property in Tieri - such as signs - is not damaged. This formed part of the rationale for his decision to conduct surveillance in Tieri. Other than for specific reasons set out in his statement, Mr Wynn has not directed or been aware of surveillance by the Company's security providers that has targeted the homes or families of particular employees. Mr Wynn has also given the names and photos of particular employees to security providers to enable them to identify those on the picket line. Mr Wynn has also requested that the homes of key managers of the Company be monitored.

[115] The occasions when specific homes, persons or locations in Tieri have been monitored or checked were in mid to late June 2017 when a crew who had notified that they were taking protected industrial action withdrew the notification, and reported sick. Mr Wynn was suspicious and requested that Company provided accommodation and the homes of the relevant members of the crew be checked to see whether they were present. Another instance was that video footage was obtained of the bar area in the bowls club in Tieri to investigate a complaint by an employee that he believed he had been abused by another employee at the Club. Surveillance has also been conducted in the mess in the single person's accommodation to investigate a complaint by an employee that he believed that he had been shoulder charged by two other employees as he entered the mess.[96]

[116] Mr Solomon is responsible for tangible assets held by the Glencore Group that are located outside of mining leases within the Bowen Basin area. These include various properties such as camp or housing accommodation in towns including Tieri. Mr Solomon gave evidence that there have been various acts of vandalism since the picket line was established including to a water tank and road signs upon which graffiti has been spray painted including "HD Grubs". HD is a contractor at the Mine. Mr Solomon said that on or around May 2017, he was instructed by Mr Nicholls to engage security and engaged Corporate Protection Australia Pty Ltd (CPA) an organisation operated by Mr Sam Sparke. CPA is a specialised security firm that provides corporate security services to various industries including mining.

[117] The scope of the services was discussed between Mr Solomon and Mr Sparke and involved access control to respond to the anticipated closure of the Mine entrance due to the picket line and the monitoring of access to the Mine during periods of protected industrial action and roving patrols in Tieri to protect key personnel of Glencore living in the town. Mr Martin Chesworth, a Security Supervisor for CPA is located in Tieri and is responsible for the security team and its day to day activities. Mr Solomon said that security personnel were deployed on or around 13 June 2017 and accommodation was provided for them in Tieri. At that time there was no picket in place at the Mine entrance and Mr Solomon instructed the security team to patrol Tieri to ensure the safety of the community and in particular to know where key management personnel lived. Addresses of key management personnel were provided to the security team.

[118] On average the CPA team conducted between five and six security patrols during the day and between seven and eight at night. Once the picket line was in place the patrols were less frequent due to lack of manpower as the team were directed to focus on the picket line. It is Mr Solomon's view that given the security team is based in Tieri, it is highly likely that their vehicles have been noticed as they go about their business. The CPA team has also been engaged in tasks including noting vehicle registrations on one occasion when there was a gathering at the Golf Club entrance and has also monitored a gathering at the Girl Guide Hut in Tieri.

[119] There have been only two occasions when Mr Solomon has instructed a member of the CPA team to monitor particular properties in Tieri. These occasions were when a tenant complained of a light being shone into a property and the occasion described by Mr Wynn when the homes of three employees who had called in sick shortly after industrial action had been called off were monitored to ascertain their whereabouts. Mr Solomon said that he has not instructed the security team to generally observe CFMEU members or officials around Tieri. Mr Solomon has specifically instructed the team not to record any families or children in the town.

[120] In anticipation of a picket line being established at the Mine entrance, a security hut was established in mid-June 2017 including lighting, a generator and a toilet. The picket commenced at the Mine entrance or around 26 June 2017. Mr Solomon instructed Mr Sparke and Mr Chesworth that the security hut was to be manned with two staff at all times and that they were to monitor, record (using a video camera) and document the behaviours of those on the picket line. Mr Solomon did not instruct any member of the CPA security team to monitor specific individuals. Rather they were instructed to monitor everyone on the picket line and if someone behaved inappropriately, their behaviour was to be documented, monitored and reported in the daily reports.

[121] Under cross-examination Mr Solomon agreed that CPA had requested a list of names and addresses of CFMEU members. Mr Solomon maintained that the list had not been provided by OCCPL. Mr Solomon said he did not know why CPA had asked for that list and rejected the proposition that it was because CPA was instructed to monitor CFMEU members. In response to the proposition that CPA team members were asked to gather information about vehicles and individuals, Mr Solomon said: "Not by me". Mr Solomon also denied that CPA team members were filming CFMEU members in Tieri and maintained that they were only monitored at their homes in one instance where a number of employees had not reported for work after a period of industrial action and had claimed to be unwell.

[122] Mr Solomon was shown an email from Mr Nicholls to Mr Spark (copied to Mr Solomon) dated 21 June in which Mr Nicholls asks Mr Spark whether CPA is photographing people in town. The response from Mr Sparke states that: "Our film taskings are as instructed, gatherings and other specific tasks such as vehicles or individuals. There is no need or reason to film people in town. This will be reinforced."[97] Mr Solomon said that the "individuals" referred to in the email were those on the picket line who demonstrated poor behaviour. Mr Solomon said that the security operatives were not filming gatherings in the town but looked at the Girl Guides hall on one occasion when there were a large number of vehicles at the hall. There had been no filming at the golf club. In response to the proposition that security operatives were instructed to film gatherings in town, Mr Solomon said: "No, on one occasion they reported that a gathering occurred." The email from Mr Nicholls also refers to an employee of OCCPL who has been cautioned (the first stage of a disciplinary process) for referring to security staff as "goons" and states that OCCPL is to be informed if the employees approaches its "professional courteous team" and acts in a threatening manner.

[123] In response to a question about whether he had any explanation for the evidence of CFMEU members that there were cars parked outside their houses and it appeared that security contractors were filming the houses of CFMEU members, Mr Solomon said that he had no explanation other than the security team are housed in Tieri adjacent to houses occupied by Mine employees. Mr Solomon was also shown an email from Mr Dobeson dated 2 June 2017 in relation to an earlier email he had sent asking for an order to be raised and a purchase order number for security services. The email from Mr Dobeson to Mr Solomon states:

"Suggest PO's read 'MMMYY Activity 101'...'102' etc. I will keep an offline tracking sheet. Therefore PO for 'surveillance operative deployed to site last week as there was potential for some unprotected action' will read 'May 17 Activity 101'..."[98]

[124] Mr Solomon rejected the proposition that the purchase orders for security services were designed to conceal that they were for "surveillance" and said that the field in the computer program for raising orders was not long enough to include a description and it would be referred to by event number and tracked in a spread sheet.[99] Mr Solomon was also shown an email from Mr Chesworth to Mr Solomon dated Saturday 24 June 2017 sent at 7.33 am, headed "CFMEU worker addresses" in the following terms:

Can we please get the addresses for all of the CFMEU members that you have on your files.

The reason for this is so that we can update our information on our maps of union houses and members."[100]

[125] It was put to Mr Solomon that this indicated that the security contractor had information on maps of the houses of Union members and that this was part of the security contractor's brief. Mr Solomon rejected this proposition. Mr Solomon agreed that he did not respond to the email in writing by refusing to provide the information. Mr Solomon rejected the proposition that he had not responded to the email because the security contractor was provided with the requested information. In response to a proposition that the use of the term "update" meant that the security contactor already had the names and addresses of Union members and was updating that information, Mr Solomon said: "You're drawing the inference" and that "there was nothing to update"[101]. Mr Solomon also maintained that he responded to the email by speaking to Mr Chesworth on Monday 26 June 2017 and did not speak to anyone else about the email. Further Mr Solomon said that he was in Buderim on Saturday 24 June 2017 left his response until he returned to work.[102]

[126] Mr Solomon was then shown a document headed "OAKY NORTH DAILY LOG/OCCURRENCE" for Saturday 24 June 2017 showing start and finish times for CPA group team members, their positions and details of activities undertaken by them. On the document is a reference to a Private Investigator named Erin Wheatley and an "Occurrence" at 13:00 recorded as follows:

"Erin Wheatley collects intel on known addresses of possible Union members and starts creation of Intel Brief."

[127] At 13:45 it is recorded that Ms Wheatley "completed intel as required and returns to HQ".[103] In relation to this document, Mr Solomon had the following exchange with Counsel for the CFMEU:

[PN2143] Do you see the entry at 1 o'clock which is E Wheatley:

[PN2144] Erin Wheatley collects intel on known addresses of possible union members and starts creation of intel brief.

[PN2146] That is about - sorry, my maths is out, I think it's five or six hours, five and a half hours, after the email was sent to you? -Yes.

[PN2147] That rather suggests that someone had provided the names and addresses to Erin, doesn't it? -It doesn't suggest it - well it didn't suggest that it comes from me. Check the phone logs.

[PN2148] When you look at the document, when you look at the document I just showed you. Forget about inferences. That's what you would rationally deduce from the document, that someone has provided that information, correct? -No.

[PN2149] Well how else do you explain those words in the context that I put to you about making a request to you at 7.33 that morning? -I can't explain it.

[128] In response to a question from the Commission, Mr Solomon said that the "intel brief" was about behaviour on the picket line and the identification of participants who were not employees of OCCPL. Some of the poorly behaved participants on the picket line were from other districts of the CFMEU or other Unions.[104]

[129] Mr Solomon was also asked about a brief prepared for the security company in May 2017. That document headed: "Oaky North Preparation Guide for Stoppage May 2017" is a table in which a range of information is set out including that: the relationship of management and the Union was reasonable but there was a lack of trust; the names of Union delegates with the list being Danny Allen (President) Ross Clarke (Vice President) Mitch Wyatte (Secretary) Lachlan Jarrett (Treasurer); a question as to whether Glencore's message was making it to the houses of employees; and the need to discuss "Employees with history" and "Identify any employees that may constitute a particular threat".[105] Mr Solomon said that he had a role in preparing the document and its purpose was to establish the lay of the land before the actual deployment of security personnel.

[130] With respect to the comment in the document about messages making it to the houses of employees Mr Solomon said that this related to messages about the enterprise bargaining process and that letters on this subject were issued to the workforce. Mr Solomon said that these letters were deliberately sent to the homes of employees and that this was a decision made at site. In response to the proposition that the message to employees was intended to be: "we know where you live" Mr Solomon said: "we know where everyone lives".[106] In relation to the subject of employees who may constitute a particular threat, Mr Solomon said that the discussion was to the effect that the Company would look for any individuals who behaved poorly and deal with that as a separate issue, via the police if required. The police would deal with the behaviour and the security company was there as "eyes and ears".[107]

[131] Mr Solomon was asked a series of questions as to whether it was part of the brief to the security team to prepare a dossier of information that could be used to discipline employees. Mr Solomon said it was not part of the brief to the security team but it was his belief that they collected information. In response to the proposition that he wanted the security team to collect information to use against employees, Mr Solomon said that he wanted the information collected so that it would be documented, and to prove that it occurred. Mr Solomon was shown an email sent by him to Mr Chesworth on 6 July 2017, in which the following statement appears:

"...we are particularly interested in any footage of CFMEU personnel engaging in lude (sic) behaviour towards motorists or your team eg. Simulating ejaculation...

I understand that this is unpalatable for your crew, however if such behaviour is witnessed and filmed it may allow us to take action against these individuals.[108]

[132] Mr Solomon agreed that he did not want the security company to miss any opportunities for footage and to get as much as they could on these individuals as set out in a further email to Mr Chesworth dated 7 July. That email also recounted that: "the three stooges from out of town who stirred up the picket line locked their keys in the car and spent three hours waiting at the servo. Karma."[109] In response to a question about whether it was appropriate to refer to people as stooges and whether it was an appropriate description, Mr Solomon said: "of those three individuals, definitely".[110]

[133] In response to the proposition that his concern was not to ensure that the behaviour wasn't happening but to collect evidence, Mr Solomon said: "Evidence of the behaviour". Mr Solomon said that he was not told at the time but was aware that the footage was to be used for potential police action and to persuade the Council that the picket was not in an appropriate location. Mr Solomon also agreed that he had engaged in email banter in which he referred to the CFMEU members by saying "Charlie don't surf. Mr Solomon agreed that this was a reference to the film "Apocalypse Now" but rejected the proposition that it was made on the basis that the Vietcong would not surf because there was going to be a slaughter on a beach and that he was comparing employees on the picket line with the Vietcong.

[134] Mr Solomon was also shown a surveillance report dated 6 July 2017 stating that "they were in the pub until 2.30 am" and agreed that this reference may have been to CFMEU members. In response to the proposition that he was told this because the CFMEU members were under surveillance in Tieri, Mr Solomon said that it was because the security team were housed directly across the road from the pub and were complaining about the noise at night, resulting in them being moved to another location. Mr Solomon was also shown a security report dated 25 June which stated that there had been loud patrons at the pub the previous night and two parties in town, at Bradman and Malvern streets respectively. Mr Solomon disagreed with the proposition that this was reported because the security team had a brief to monitor the activities of CFMEU members.

[135] Mr Solomon was also shown an email sent by him to Mr Sparke of CPA at 7.47 pm on 25 May 2017, confirming arrangements for an "operative" to be flown by Corporate Air Charter to Oaky Creek for on a date that is not apparent. The request includes the following:

"Make sure long lens camera etc for photos of piquet (sic). We need to be able to ID individuals"[111]

[136] Mr Solomon said that the operative in question was Ms Wheatley, and her task had been to fly up to Oaky Creek, drive by the picket line to undertake a task and then she spent the rest of the day in a coffee shop waiting for the return charter flight.[112]

[137] In re-examination Mr Solomon said that he made the comment that "we know where everyone lives" because the Company owns all of the houses in Tieri and leases them to employees and maintains a database of tenancies. Mr Solomon also said that when he responded to Mr Chesworth's request for information about the addresses of CFMEU members he told Mr Chesworth that he did not want him to have that information because it would be a map of every house in Tieri.

[138] Mr Chesworth gave evidence about the conduct of the security team and the instructions they received. Mr Chesworth arrived in Tieri on 19 June 2017. His initial instructions were to respond to the anticipated closure of access to the Mine, monitor any picket line activity and conduct roving patrols of Tieri to protect Glencore's key management personnel and Glencore's properties. There are seven security personnel dedicated to providing these services.

[139] Mr Chesworth said that there are three vehicles used by the security team in Tieri. They have a static dash mounted camera placed inside the car. The camera is on at all times that the ignition of the car is switched on. The camera records sound inside a car and to a lesser extent can pick up sound outside the car. The security team has not utilised listening devices to pick up sound outside cars. The security team monitored a gathering of vehicles and persons at the Girl Guide Hut in Tieri on or around 26 June 2017. Mr Chesworth instructed them to do this so that the vehicles at any picket and potentially individuals on the picket line could be identified. This is the only time that Mr Chesworth has instructed his team to take video footage of a gathering other than at the picket line.

[140] Mr Chesworth also said that he has not instructed any member of the security team to record footage in the pub. There are only three occasions when specific houses in Tieri have been monitored. On two occasions there were complaints from the occupants of the house and on the third occasion three addresses were monitored when employees did not report for work after the cessation of industrial action and the team was stood down when those persons did report for work. Mr Chesworth accepts that a CPA vehicle patrolling the homes of Glencore staff or management in the course of their rounds, or visiting an amenity such as a café, would have driven past the homes of employees on the way including multiple times in a single day. However, such multiple drive-bys would be an unintentional coincidence and not for the purpose of monitoring particular employees, their family or their homes.

[141] Children may have been incidentally recorded when they were present at the picket line. The team has not deliberately monitored children at the picket line and has not been instructed to do so. CPA team members have been involved in identifying individuals at the picket line when they have been observed being rude or aggressive. Mr Chesworth said that CPA staff have been the subject of rude and aggressive behaviour and tendered video footage of an incident when an employee left the picket line and licked the window of a security vehicle.

[142] On another occasion a CFMU delegate spat on the ground in front of Mr Chesworth. Comments have been directed at Mr Chesworth as he drove past the picket line that he should go and hang himself and a female team member reported that her vehicle was followed and when she pulled over an employee parked his vehicle in front of hers blocking her while he filmed her and then demanded that she give him her name and the company she was working for. Mr Chesworth has not witnessed any interactions whereby contractors have directed rude and aggressive conduct towards employees on the picket line or in Tieri and members of the CPA team have not reported such conduct to Mr Chesworth.

[143] Under cross-examination, Mr Chesworth said that at the start he received instructions from Mr Solomon but later received instructions from Mr Wynn and Mr Nicholl. Mr Chesworth said that Ms Wheatley is a private investigator. Mr Chesworth did not give Ms Wheatley instructions to prepare a map showing where CFMEU members live in Tieri and does not know if anyone else gave such instructions. Mr Chesworth said that he did request that Mr Solomon provide him with a list of names and addresses of CFMEU members and did not have those names and addresses prior to making the request. Mr Chesworth did not know of anyone else within CPA who had that information.[113]

[144] In response to a question about the activities undertaken by the security operatives, Mr Chesworth said that they were monitoring the picket line and Tieri. Activities in Tieri involve monitoring managers' houses, monitoring the streets to ensure they are safe and to ensure that no wilful damage was done around the town. Mr Chesworth rejected the proposition that he wanted the names and address of CFMEU members in order to monitor them. Mr Chesworth said that he had asked for the addresses of CFMEU members so that he could place where the Managers' houses were and was told after he made the request that 99.9% of people living in the town were CFMEU members and the information would not assist. Mr Chesworth maintained that he was not given such a list and that no-one else from CPA got a copy of such a list.[114] Further Mr Chesworth maintained that when he sent the email to Mr Solomon on 24 June 2017 requesting addresses of CFMEU members, he did not tell anyone, including Ms Wheatley, that he had sent the email.[115]

[145] Mr Chesworth also maintained that he did not have a conversation with Ms Wheatley about the creation of an "intel brief" which included the names and addresses of Union members. The "intel brief" related to people "playing up" on the picket line. Mr Chesworth was shown the document entitled "Oaky creek daily occurrence sheet" for 24 June 2017[116] indicating that at 1.00 pm on that date Ms Wheatley collected "known addresses of possible union members". Mr Cheworth agreed that by email sent at 7.30 am on the same day, he had requested addresses of CFMEU members and that he had been on duty with Ms Wheatley that day as recorded in the daily occurrence sheet. Mr Chesworth denied that he required those addresses to undertake surveillance of CFMEU members but agreed that there was a map on the wall of the security office showing the managers' houses and "aggressive members of the CFMEU". Mr Chesworth further agreed that he had addresses of CFMEU members at that stage and that these were on a street map.[117]

[146] In response to a question about how he got the addresses, Mr Chesworth said that he had been told by the previous supervisor that these were marked down on the basis of aggressive or rude gestures coming from houses while security staff were driving past, when monitoring the streets. Mr Chesworth rejected the proposition that the names and addresses were provided by OCCPL or that Ms Wheatley collected them on 24 June 2017 and maintained that Ms Wheatley got the addresses from a map prepared by security staff based on information about aggressive people obtained by them while driving around Tieri. Mr Chesworth maintained that the map did not include names.[118]

[147] Mr Chesworth disputed that it was the role of security staff to monitor and undertake surveillance of CFMEU members while they were at home or in the pub. Mr Chesworth said that emails reporting to OCCPL the goings on in the pub at 2.30 am were not because security staff were monitoring people, but because partying at the pub was keeping security staff up. Information about a party at Bradman Street was provided by security staff on patrol. Mr Chesworth said that the report to OCCPL about the party was that it was loud. Mr Chesworth agreed that the Guide Hall was being monitored, but maintained it was because there were 30 vehicles there at one time and not because meetings of CFMEU members were being monitored. Mr Chesworth was also shown a daily occurrence log for 24 June stating that there were 30 vehicles located at the "CFMEU guide hall".[119]

[148] Mr Chesworth denied that he was planning to do anything illegal or dishonest in the course of his activities. When shown an email to Mr Solomon dated 30 July 2017 where he discussed that tarpaulins had been erected on the picket line that were blocking cameras, and asked "do these need to disappear during the night," Mr Chesworth said that this suggestion was made as friendly banter and that it did not occur because to steal the tarps would be dishonest.[120] Mr Chesworth said that he did not ask the permission of persons on the picket line before filming them. He also said that the security firm was not asked to film the behaviour of contractors or staff members who were not on the picket line.

[149] Mr Chesworth was also asked about the point at which activity at the picket line "picked up" and whether this had occurred from 14 June 2017. Mr Chesworth said he could not be specific about the date and was shown an email from security staff dated 15 June 2017 to Mr Solomon reporting that:

Began day with normal patrol route including golf course.

Numbers slightly increased at the picket line, and the aggression was greatly increased. Driving past we were met with very vocal and strong threatening abuse accompanied with ill-mannered gestures.

All points of interest were covered off with nothing to report

At around 1600 Darren requested mobilisation of security, Notified the appropriate personnel and began the process with staff driving out from Gladstone

Organised accommodation and meal passes for staff arriving at site

Security hut was installed at the main gate. Generator, toilet and lights provided though not yet operational.

Increased patrols over night at the request of Michael observing personnel in close proximity of the security hut

Final patrol completed at 2245. Ceased patrols due to no presence of personnel in the area.

Security arrived on site at 2300 and escorted to residence."[121]

[150] Mr Chesworth said that he remembered that the email dealt with the time that the picket line was located on the Oaky Creek access road and there was an expectation that people from outside the Oaky Creek organisation would be coming to town and attending the picket.[122]

[151] Mr Brodsky said in a further statement in reply, that premises provided to the CFMEU by the former proprietor of the Mine for use as the office of the Oaky North Lodge, were taken off the Union in 2009. Since that time, the CFMEU has utilised the Girl Guides' Hut in Tieri as the office of the Oaky North Lodge. The Girl Guides' Hut is on private property. That is why members have assembled and met at that location from time to time and the mascot Scabby the Rat has been inflated and set up at that location. It is Mr Brodsky's belief that surveillance of members at the Girl Guides' Hut has the capacity to intimidate members and deter them from participating in collective bargaining and other Union activities.

2.7 Conduct after undertakings given to the Commission

[152] At an interlocutory hearing on 3 August 2017 at which the CFMEU sought interim Orders pending the hearing and determination of this matter, undertakings were given to the Commission by both parties about future conduct. Each of the employees who were given allegation letters included an undertaking in their witness statements that they would not engage in conduct of the kind alleged against them prior to the hearing and determination of this matter.

[153] Mr Wynn tendered a letter to Solicitors for the CFMEU stating that on 5 August 2017, Mr Brodsky posted a message on Facebook in response to a post about people who were "scabbing" at Oakey North, asking that the names of those persons be messaged to him. The letter also referred to seven signs that had appeared along the road to the Mine, between 19:15 and 21:41 hours, with lists of names under the heading "Oaky North Scabs".[123] Solicitors for the CFMEU responded denying that the CFMEU or its members had anything to do with the signs and stating that without admission of breaching the undertaking Mr Brodsky's post had been taken down. Mr Chesworth also gave evidence about the signs and when they were placed, based on information provided by security patrols, and tendered photographs of them.[124] Further, Mr Chesworth tendered photographs of Scabby the Rat taken on 8 August 2017 depicting it inflated and situated at the Girl Guide Hut.[125]

[154] In response to those allegations Mr Brodsky provided a further reply statement denying that the CFMEU or its members were responsible for the signs and asserting that there had been no breach by the Union or its members of the undertakings given to the Commission. Mr Brodsky also stated that his post on social media did not breach the undertakings but that he had taken it down nonetheless.

[155] The CFMEU contends that the behaviour of OCCPL has occurred at an important time in the bargaining between the Company and its employees, and that it is unfair or capricious, and undermines freedom of association or collective bargaining. In particular, the CFMEU asserts that this is evident from the fact that the conduct on the picket line has been constant since the picket line was instituted and that the warning letters were only issued after a proposed agreement put to a ballot of employees by the Company, was rejected with 187 employees voting against the proposed agreement and 2 voting to approve it. The withdrawal of permission for employees to wear CFMEU clothing on site also occurred after the unsuccessful ballot for approval of the Agreement.

[156] According to the CFMEU, the conduct of OCCPL undermines freedom of association and collective bargaining because the employees are:

• Members of the CFMEU;

• Participating in lawful activity which has been organised or promoted by the CFMEU;

• Engaging in conduct which is an integral part of the membership of the CFMEU; and

• Engaging in conduct intrinsically associated with the taking of protected industrial action and their participation in the process of making a new enterprise agreement.

[157] The CFMEU contends that the actions of the OCCPL have had a chilling effect on the bargaining process and are deterring employees from engaging in that process and the Union's activities in support of it. The CFMEU also points to the fact that the allegations are made against all but one of the members of the Lodge executive, representing the entirety of the bargaining representatives who are employed by OCCPL. Further, the CFMEU contends that OCCPL cannot discipline employees for their conduct either during a period of protected industrial action or while they are participating in internal Union discussions on a private Facebook page established and operated by the CFMEU's Oaky Creek North Lodge and restricted to its members.

[158] The CFMEU seeks Orders that OCCPL:

• Withdraw the direction issued to employees that they are no longer permitted to wear clothing associated with the CFMEU into and out of the mine and not issue any new directions to the same or similar effect;

• Cease undertaking or causing to be undertaken, surveillance of employees outside the precincts of the Mine and/or any picket organised in the vicinity of the mine;

• Take no further steps with respect to the investigation letters issued to employees;

• Take no disciplinary action against the employees the subject of the investigation letters; and

• Not rely on the investigation letters in any respect.

[159] OCCPL opposes the Orders sought by the CFMEU. The Company maintains that the conduct of some persons present at the picket, including Officials of the CFMEU, has been abusive, threatening and intimidating. OCCPL asserts that the use of the term "grubs" directed at persons crossing the picket line is because employees know that if they use the term "scab" they will be liable to discipline. Thus the use of the word "grub" is intended to convey all of the loathsome connotations that apply to the word "scab" and to demean, belittle and humiliate persons against whom it is directed. In relation to the assertion that employees are not subject to the direction of OCCPL while on the picket and engaging in protected industrial action, OCCPL contends that this is incorrect on several bases including that the protected industrial action order does not authorise a picket or the conduct complained of by OCCPL. It was further contended that it is not apparent that all the conduct on the picket, subject of the investigation letters was during protected industrial action, and in particular the social media postings.

[160] OCCPL submits that it is well established that an employer has the capacity to regulate and take disciplinary action in respect of conduct that occurs out of the workplace, where there is sufficient connection with the workplace. OCCPL has in place policies that are designed to ensure a workplace in which people are treated with dignity and respect and are free from abuse, intimidation and harassment. Glencore's Code of Conduct, EEO Policy (which deals with harassment) and Social Media Policy apply outside the workplace and working hours and the conduct alleged in the letters is capable of constituting breaches of relevant policies. The conduct of OCCPL in making the allegations as part of a request for information and a response, is not capricious or unfair.

[161] OCCPL also submits that the conduct on the picket is separate from mere participation in a protest. Only those persons whose conduct is considered to breach policies and who could be identified, have been asked to respond. The Commission should not accept that conflict between those at the picket and those entering and exiting the Mine has been with contractors who are performing the employee's jobs and taunting the picketing employees as they drive past and the employees to whom the letters have been issued have had ample opportunity to respond and prove particulars of such conduct. No complaint has been made by the CFMEU to the Company in respect of this matter. The assertion by the Union that swearing is common in the workplace is inconsistent with the evidence and in any event, there is a distinction between the general use of swear words and directing such words at individuals.

[162] Further, OCCPL submits that the investigation letters do not undermine freedom of association or collective bargaining in any way and if the CFMEU assertion that the mere provision of a letter of allegation had this effect was accepted, the result would be that employers could not take any investigative or disciplinary action during a period of bargaining. In relation to the timing of the investigation letters, OCCPL submits that consistent with usual practice, the Company waited for the first opportunity to present them to employees face to face. That opportunity arose on 15 July 2017 when employees returned to work after a period of protected industrial action. Only two employees who were the subject of the letters attended work and thereafter employees were not at work. One of the employees was given a letter and decision was made to issue letters by email to the other employees on 18 July 2017.

[163] In relation to surveillance of employees, OCCPL engaged a contract security team for the purposes of monitoring the conduct of employees on the picket line and the homes of the Mine management team in Tieri. No instruction has been provided to security staff to generally observe CFMEU activity or to target the homes and families of individuals, and this has not occurred. The direction in respect of wearing CFMEU clothing was aimed only at a particular shirt worn by CFMEU members while on the picket line and implemented out of concern at how employees and contractors at the Mine might react if they saw employees wearing the same shirts to work that had been worn on the picket.

[164] Legislative provisions in relation to bargaining orders are found in Sub-division A of Part 2-4, Division 8 of the Act. The relevant provisions are in the following terms:

228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

Note: See also section 255A (limitations relating to greenfields agreements).

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.

(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

Note: See also section 255A (limitations relating to greenfields agreements).

(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.

(3) The application may only be made at whichever of the following times applies:

(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non-compliance with notice requirements may be permitted

(5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and

(c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.

Note: See also section 255A (limitations relating to greenfields agreements).

Agreement to bargain or certain instruments in operation

(2) The FWC must be satisfied in all cases that one of the following applies:

(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(b) a majority support determination in relation to the agreement is in operation;

(c) a scope order in relation to the agreement is in operation;

(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.

(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).

(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:

(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;

(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;

(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;

(d) such matters, actions or requirements as the FWC considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.

(2) The kinds of bargaining orders that the FWC may make in relation to a proposed enterprise agreement include the following:

(a) an order excluding a bargaining representative for the agreement from bargaining;

(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;

(c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);

(d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).

(a) specify the factors the FWC may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and

(b) provide for the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.

A bargaining order in relation to a proposed enterprise agreement:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation at the earliest of the following:

(i) if the order is revoked - the time specified in the instrument of revocation;

(iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;

(iv) when the bargaining representatives for the agreement agree that bargaining has ceased.

Note: See also section 255A (limitations relating to greenfields agreements).

A person to whom a bargaining order applies must not contravene a term of the order.

Note: This section is a civil remedy provision (see Part 4-1).

5. APPROACH TO DECIDING WHETHER TO ISSUE BARGAINING ORDER

[165] The central issue in this case is whether the conduct complained of by the CFMEU constitutes a failure by OCCPL to meet the good faith bargaining requirement in s. 228(1)(e) of the Act to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining. In CFMEU v Anglo Coal (Capcoal Management) Pty Ltd T/A Capcoal I endeavoured to set out some principles with respect to the application of the legislative provisions in relation to whether bargaining representatives have met good faith bargaining requirements in s. 228(1)(e) of the Act, which can be summarised as follows:

• Section 228(1)(e) of the Act is directed to the process of bargaining and does not encompass conduct that may be capricious and unfair but which is not directed to the bargaining process or which does not have (or is unlikely to have) an impact on the bargaining process. This is so regardless of whether the conduct is capricious or unfair on an objective or a subjective basis[126];

• There are two limbs to the good faith bargaining requirement in section 228(1)(e) being[127]:

1. That the bargaining representative has not refrained from conduct which is capricious or unfair or that the bargaining representative has engaged in conduct that is capricious or unfair; and

2. That conduct undermines freedom of association, or collective bargaining or both;

• Capricious conduct is conduct which is unaccountable, whimsical, irregular or unpredictable[128] or conduct that is not valid, defensible or well founded;

• Conduct that is unfair is conduct that is not equitable or honest or not impartial or according to the rules[129];

• To undermine collective bargaining or freedom of association means to injure or damage including by secret or insidious means[130]; (In relation to this point, I accept the submission of the CFMEU in the present case that it is not necessary that undermining be insidious or secret);

• It does not follow that because conduct adversely impacts on the position of a bargaining representative it will be conduct that undermines that position[131];

• While intent may be relevant to whether there has been a breach of good faith bargaining requirements, it is not determinative and there is no requirement to establish intent in order to find a breach[132];

• Fairness cuts both ways and the interests of employers and employees must be balanced. The good faith bargaining requirements do not require that an employer can take no action to protect its interests or to advance its positon whilst bargaining is underway[133];

• The terms of s 231(2)(c) and (d) of the Act which provides that the Commission may make orders do not operate unless and until the Commission is positively satisfied to the required standard of proof that a bargaining representative is not complying with a good faith bargaining requirement[134]; and

• Fairness in a given situation depends on the circumstances and the context in which it is assessed. That context includes:

o that the purpose of employees taking protected industrial action or is that it will cause loss and damage to an employer which will result in the employer changing or compromising its bargaining position.[135]

• That the purpose of an employer in taking employer response action by locking out employees is to cause employees to compromise or change their bargaining position due to loss of wages;
• Parties are entitled to engage in hard bargaining; and
• A bargaining order cannot compel a party to alter its bargaining position.

[166] To those principles I would add that a bargaining order should not be directed to handicapping either of the parties for the purpose of adjusting a perceived or actual power imbalance between them on the basis of some general notion of fair play. As a Full Bench of the Commission observed in CFMEU v Coal and Allied Operations[136]:

"The adage 'all is fair in love and war' is we think, as much applicable to industrial warfare as to any other type."

[167] In the context of good faith bargaining requirements, all is fair in love and war unless it constitutes a breach of the good faith bargaining requirements, which include that bargaining representatives do not engage in conduct that is capricious or unfair and which undermines freedom of association or collective bargaining. Only then can the Commission make a bargaining order which must be directed to remedying the effect of the particular breach.

[168] The essential issue in dispute in this case is whether the actions of OCCPL:

• issuing allegation letters to employees about conduct on the picket line or on social media;

• undertaking security operations in Tieri; and

• directing that employees who are members of the CFMEU not wear certain items of CFMEU branded clothing in the workplace;

are capricious or unfair conduct that undermines freedom of association or collective bargaining, so that bargaining orders should be made requiring that such actions cease or not be continued. This case also raises general issues of whether the conduct of employees can be regulated by policies of their employer when they are engaging in protected industrial action or Union activity.

[169] The picket line conduct to which the allegation letters relate occurred over a period from 2 to 6 July 2017 and is only conduct engaged in by employees of OCCPL. The Company has not sought to base allegations against employees on any association they have had with non-employees and the conduct that non-employees have engaged in. The social media conduct to which the allegation letters related deal with a limited number of social media posts made by those employees over a period from 12 May to 11 June 2017.

[170] There is a significant amount of evidence before the Commission - including photographic and video evidence - about conduct on the picket line generally including conduct of persons who are not employees of OCCPL. OCCPL relies on that evidence as a basis for the allegations set out in the letters to employees, only where individual employees can be identified engaging in the conduct. Evidence about the conduct of other persons who are not employees of OCCPL on the picket line, or conduct engaged in by persons who are not able to be identified is not directly relevant to the present application. However, it is relevant to provide context for the allegations against employees and to explain the other actions taken by the Company in relation to security operations and the direction about wearing of Union clothing at the Mine site.

[171] Before turning to the specific issues for determination, I make the following general observations. For a workplace to function effectively it is necessary that stakeholders and participants at the workplace - employees, contractors, supervisors and managers - are able to work together in an environment that is free of discrimination, harassment, intimidation and vilification. Employees - whether directly employed or employed by contractors - are entitled to a workplace that is free of discrimination harassment, intimidation and vilification. The owners of businesses are entitled to implement lawful and reasonable policies to protect the reputation, assets and interests of the business and the health and safety of persons who work in it. Employees and those who represent them are entitled to take lawful and reasonable steps to protect their employment and the terms and conditions that attach to employment.

[172] Employees are also entitled to freedom of association, to engage in lawful industrial activities and to seek to bargain collectively about their terms and conditions of employment. The legislative framework in which bargaining occurs does not mandate agreements being reached and gives negotiating parties rights to take steps to advance their respective bargaining positions, and to reject the positions advanced by other bargaining parties. Those rights include the taking of protected industrial action and employer response action.

[173] The fact that employees have rights to take protected industrial action or to engage in industrial activities or to bargain collectively, does not create a general immunity for employees from the consequences of all or any conduct in pursuit of those rights. In order to be protected, industrial action must be authorised by a protected action ballot order. The protection with respect to industrial action is from action under State or Territory law with the exception that industrial action involving personal injury; intentional or reckless destruction of or damage to property; or unlawful taking or use of property is not protected. Employees are also protected from adverse action being taken against them by employers because they have engaged in protected industrial action, collective bargaining or other industrial activities.

[174] However, there is no overarching protection from other kinds of action, while employees are engaging in protected industrial action, including the initiation of disciplinary processes by an employer. It is open to employers to regulate the conduct of employees outside the workplace and to take disciplinary action in respect of such conduct where it has a significant effect or is likely to have a significant effect on the workplace and the relationships of stakeholders within it. This is the case notwithstanding that employees are engaged in union activities including taking protected industrial action at the time the conduct occurs.

[175] In the present case, the protected industrial action authorised by the ballot covers stoppages of work. There is evidence that in most cases, employees were present at the picket line at times when they were rostered to work ordinary hours, and would have done so had they not been taking protected industrial action or subjected to employer response action. While it is axiomatic that at times, the employees subject of the present application were taking protected industrial action while they were on the picket line, it does not follow that all of their conduct while on the picket line was protected industrial action. Further, to the extent that conduct on the picket line was engaged in while employees were locked out, they were not taking industrial action protected or otherwise. The CFMEU also asserts that the employees were engaged in Union activity while on the picket line.

[176] Glencore has a Code of Conduct and policies dealing with EEO, Harassment and Use of Social Media that applies to employees of OCCPL. The operation and effect of those policies is not restricted to periods when employees are at work or where the conduct regulated by the relevant policy occurs at the workplace. The Code of Conduct and the policies apply outside of work and require employees not to engage in conduct outside the workplace which will have an adverse impact in the workplace, including on other persons in the workplace. I do not accept that these obligations are suspended during a period of protected industrial action, notwithstanding that OCCPL does not have the right to direct employees to perform work during such a period. Nor do I accept that it is inherently unfair or capricious for OCCPL to enforce or apply those policies during periods when employees are participating in protected industrial action or Union activities generally.

[177] The policies are not new and employees have been provided with training about the policies, albeit that Mr Williams who gave evidence on behalf of the Company about the training conceded that the training did not specifically address the application of the Code of Conduct and policies in circumstances where employees are engaging in industrial action. Notwithstanding that this matter was not dealt with in the training about the policies, the policies clearly apply to conduct outside of work.

[178] In my view, if employees engage in conduct that if proven, fits the description of conduct that is prohibited by a workplace policy - ie. abuse, intimidation, harassment or unwelcome behaviour or behaviour that offends or humiliates another person - and there is a sufficient connection with the workplace, an employer is entitled to institute a disciplinary process regardless of the fact that the employee was taking protected industrial action or engaging in industrial activity, when the conduct occurred. The fact that such conduct occurs on a picket line is a contextual matter which may explain or mitigate the conduct, but does not provide immunity for those who engage in it.

6.2 The conduct subject of the allegation letters

[179] In the present case, there has been some conduct on the picket line that is appalling. It is one thing for persons on a picket line to stand at a location near the entrance to the Mine blowing whistles, chanting slogans, holding signs with slogans and comments expressing the views of the CFMEU and its members about the conduct of Glencore in the bargaining process or in the industry generally or playing music loudly and repetitively (although I have great sympathy for all persons who were forced to listen to the constant refrain of Twisted Sister's "We're Not Gonna Take It").

[180] It is another thing entirely for persons on a picket line or otherwise in the course of undertaking Union activities to:

• Call out the names of individual persons crossing the picket line or direct abusive comments to individuals such as: "scab", "grub", "dog", "maggot" and the like - and to cause further offence by embellishing such terms with expletives such as "fucking";

• Identify persons who are at work during a period of industrial action or lockout by placing their names on signs;

• Photograph or simulate photographing of vehicles or individuals who cross the picket line;

• Direct offensive hand gestures towards drivers of vehicles by giving them "the finger" or simulating masturbation or make threatening gestures such as throat cutting motions;

• Approach the driver of a vehicle and direct abuse towards that person through the window of the vehicle;

• Infer that individuals are considered to be scabs, grubs, dogs, maggots or the like by directing noises towards them such as squealing or barking noises, deploying inflatable representations such as "Scabby the rat" and holding up signs depicting grubs (and for the avoidance of future doubt - dogs, maggots or other likenesses representing offensive, derogatory and abusive terms);

• Direct questions to persons crossing the picket line including questions calling their integrity into question (eg. How do you sleep at night?) or involving their families by asking how their families might view their conduct in crossing the picket line;

• Make threats to involve family members of those crossing the picket line in the dispute; or

• Direct comments such as "why don't you hang yourself" to individuals crossing the picket line.

[181] The video, photographic and documentary evidence tendered by OCCPL establishes that all of these events and behaviours occurred on the picket line in the time frame relevant to this decision. Mr Brodsky may have attempted to lay down ground rules for conduct on the picket line including that individuals should not be "attacked" for attending the Mine. However, it is apparent from the evidence that these attempts were not effective. In any event, I fail to see how such a rule could be effective with respect to the conduct of CFMEU members when it was not followed by Officials of the CFMEU who were leading the way on the picket line. It appears from the video footage of the conduct of CFMEU Officials on the picket line that the adage "Do as I say, not as I do" is apt.

[182] It is also apparent that there were a number of safety incidents on the picket line including a fire which broke out due to a faulty generator. I have been critical of security staff for laughing while filming the fire. It is equally concerning that after the fire was extinguished persons on the picket line made signs joking about the fire. Further, there is evidence that persons standing on the picket line moved in and out of the defined areas and stood on both sides of the road; used vehicles to obstruct and hinder those entering or exiting the Mine Access Road; and distracted persons in vehicles while they were waiting at a stop sign to enter a public road. This conduct is reprehensible and is not conduct that I would expect to be condoned by an organisation of employees such as the CFMEU, which prides itself on upholding health and safety standards. It is understandable that management of OCCPL had significant concerns about such conduct and put in place mechanisms to attempt to manage the impact of that conduct on persons going about their lawful business, entering and exiting the Mine.

[183] In relation to the social media posts, as previously noted, the Social Media Policy applicable to employees at the Mine operates with respect to conduct at work and conduct in a private capacity, where that conduct has a necessary connection to work. As the Social Media Policy makes clear, no social media post is entirely confidential and once in the public domain, is beyond the control of the person who made the post. If proof of this proposition is required, then one needs to look no further than the fact that posts to a so-called "private" Facebook page operated by the CFMEU ended up in the hands of the Company. How that occurred is not to the point. The point is that nothing on the internet is private. I accept that employees are entitled to make social media comments in their capacity as private citizens. However, there is a line -at times a fine line - between comment as private citizen and comment that is likely to adversely affect relationships in the workplace so that it has a sufficient connection with work to come within the reasonable sphere of operation of a workplace policy.

[184] Quite simply, any employee who publishes a comment on a social media site referring to a work colleague - much less a manager - as a "cunt", a "fuckwit" or as being "cunning and manipulative" or in similarly pejorative terms, can expect to face repercussions in the workplace. This is particularly so where there is a clearly articulated policy in relation to the use of social media and where the comment is reasonably likely to affect the employment relationship or the workplace and/or to offend the person against whom it is made. This is so even where the post is made outside of ordinary working hours or on a site that the employee believes is private.

[185] I can only wonder at how an employee who has made such comments about a manager or another employee, in a public arena, can reasonably believe that it will not have an impact on the relationship in the workplace - either with the person about whom the comment is made or with other employees - when the comment becomes public as occurs all too frequently. Similarly, a post on a Facebook page operated by a news outlet by an employee purporting to act in a private capacity can also potentially breach an employer's policies, where there is a connection with the workplace. The application of workplace policies in these circumstances and consideration of whether an employee who, in a private capacity, posts a general comment on a social media site is subject to discipline in the workplace is an emerging area of employment law.

[186] I do not accept that the CFMEU's submission that publication of comments on a CFMEU Facebook page should be treated in the same manner as if the comments were made at a Union meeting and were reported outside the meeting by someone who was present at the meeting. A report of comments made at a Union meeting would be hearsay and treated accordingly if the comments were relied on in a hearing before the Commission. I accept that if an employer engaged in underhanded conduct such as spying on Union meetings or taping them without the knowledge of those present, the employer could not rely on material so obtained to justify disciplinary action for breach of a policy. Union officials and members are entitled to have robust discussions at their meetings and express their views - however offensive the language in which those views are expressed might be. Persons who are present at meetings where such discussions occur are free to leave. In contrast, offensive, derogatory, threatening and intimidating comments posted on the internet have a life of their own and persons who make such comments are not immune to the repercussions of their comments because they are posted on a site operated by a Union.

[187] The social media comments in the present case which referred to managers in a highly offensive manner are comments which could constitute a breach of the Company's Social Media Policy. Objectively such comments have a relationship to work and impact on relationships in the workplace. It is irrelevant that they were made on a private Facebook page or that they were made when employees were engaging in lawful Union activity or protected industrial action. However, I have difficulty accepting that a general comment "lynching in order" which was withdrawn within a short time by the person who made it, is in the same category. I also have difficulty accepting that the comment on the Daily Mercury Facebook page could properly be viewed as a breach of social media policy.

[188] I do not accept the proposition that employees cannot be required to comply with policies and procedures in relation to their conduct, simply because they are taking protected industrial action or are engaging in lawful Union activities. It is well established that employees can be disciplined for conduct outside working hours, where that conduct has a connection with the workplace sufficient to have a significant and adverse effect on the workplace; workplace relations; the productivity of others; or the conduct of the employer's business.[137] A connection will also arise when conduct relates to two employees of the same employer, where knowledge and acquaintanceship arises as a result of their employment. There is no exemption from the repercussions of engaging in such conduct simply because an employee is engaging in protected industrial action or other lawful Union activity.

[189] It is also well established that there is a distinction between swearing or using offensive language in the workplace generally and directing such language at an individual or individuals.[138] These principles apply regardless of whether employees are taking protected industrial action or engaging in lawful Union activity, at the time the conduct occurs. While in the present case, the most egregious incidents of the conduct described above have been undertaken by persons other than employees of OCCPL, there are allegations against employees in relation to their conduct on the picket line, which if proven, could constitute a breach of Glencore policies.

[190] The persons engaging in the conduct subject of the allegation letters are employees of OCCPL. The persons against whom the conduct is directed are persons who perform work at the Mine - either staff of OCCPL or employees of contractors. Many of those persons will continue to perform work at the Mine after the current dispute ends notwithstanding that some contractor employees may have been engaged specifically for the period where industrial action or employer response action is occurring. Staff performing the work of CFMEU members while they are taking protected industrial action or are locked out, will continue to work at the Mine after the dispute is resolved. It is reasonable to conclude that conduct of the kind being engaged in on the picket line has, or is likely to cause damage to and impact on relationships in the workplace.

[191] I accept that the CFMEU and its members employed by OCCPL are angry and frustrated by the fact that their bargaining position is being weakened by the continued operation of the Mine by staff and employees of contractors. I also accept that the CFMEU and its members have the right to protest by expressing antipathy or even disgust about the bargaining position of the Company or about the fact that staff and contractor employees are doing work that would ordinarily be performed by members of the CFMEU who are taking protected industrial action or are subject to employer response action. I further accept that the CFMEU and its members have the right, during periods of industrial action, to cause economic loss or damage to OCCPL.

[192] However, in exercising these rights, CFMEU members employed by OCCPL are not entitled to direct abusive, threatening intimidating and harassing comments, noises or gestures (either orally, visually or on social media) to individuals who exercise their right to enter or exit the workplace. Not only does such conduct cause distress and fear on the part of those on the receiving end, it will also probably result in a workplace where persons against whom such conduct is directed do not work in an environment free from abuse, intimidation and harassment and unease on the part of those persons after the dispute ends, and those engaging in such conduct on the picket line return to work.

[193] The CFMEU and its members appear to accept that employees on the picket line who use the term "scab" either indirectly by holding a sign bearing that term or verbally directing it to a person crossing the picket line, will be liable for discipline. There is evidence that employees on the picket line have been told by Officials of the CFMEU that they should not use the term "scab". The inflatable rat known as "Scabby" which initially appeared at the picket line was removed, although it appears that Scabby has been relocated to the Girl Guide Hut in Tieri after an undertaking was given to the Commission that it would be deflated and removed from the picket line. Signage has continued to be erected referring to "scabs" working at the Mine.

[194] The evidence of witnesses for the CFMEU is that the term "grub" was employed in lieu of the term "scab" with the intention of conveying that the persons attending for work and performing work that would usually be undertaken by members of the CFMEU were low and contemptible and that their conduct would not be forgotten. The term "grub" was employed because of concern that persons on the picket line should not use the term "scab" on the basis that to do so would make them liable to discipline.

[195] This advice seems to be based on the Decision of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (Doevendans)[139] where the majority found that the dismissal of an employee, who during lawful activity organised by the CFMEU held a placard which read: "No principles SCABS No guts", was not adverse action. The majority held that the reasons for dismissal advanced by the decision maker in that case - that the word "scab" was inappropriate, offensive, humiliating, harassing and flagrantly in breach of the Company's workplace conduct policy - were not prohibited reasons. It was also relevant that the dismissed employee was aware of the relevant policy and demonstrated arrogance when confronted with objections to his conduct.

[196] The High Court Decision in Doevendans is not authority for the proposition that employees engaging in lawful industrial activity have carte blanche to direct abusive, offensive and intimidating language to other employees who do not engage in industrial action, provided that they do not use the term "scab". In Doevendans the reason for dismissal was that language used by the employee constituted a breach of a workplace conduct policy. The principle in Doevendans is not limited to the use of the term "scab". It is also applicable in the present case, where the employees who have been issued with letters are alleged to have used the terms "grub", "fucking grub" and "maggot" and to have engaged in other conduct which if proven would attract all of the epitaphs: inappropriate, offensive, humiliating, harassing and in breach of OCCPL's Conduct Policy and procedures in relation to EEO, harassment.

[197] I do not accept the evidence of the employees who received allegation letters that they did not know that the term "grub" is offensive. To the contrary. Their evidence under cross-examination makes it clear that they well knew the term "grub" is offensive, intended it to be so and used it as a synonym for the term "scab". It is also clear from the evidence that the term "grub" was directed at individuals on at least some occasions. Even if it was chanted at cars going past, those cars were driven by people who would reasonably have believed that the term was directed at them. Chanting a slogan is an entirely different proposition from chanting the term "grub". The former has general application and the latter is directed at a person or persons crossing the picket line.

[198] Such conduct renders employees who engage in it liable to discipline regardless of whether or not the term "scab" is used. Staff and employees of contractors working at the Mine are protected by the EEO, Harassment Policy and the Code of Conduct. An interaction between those persons and an employee who is a member of the CFMEU which involves language of the kind which was used by employees subject of the allegation letters, being directed to persons with whom they usually interact in the workplace, will or will likely impact on the workplace. The fact that the interaction happens while a staff member or contractor employee is crossing a picket line on which CFMEU members are engaging in lawful Union activities does not remove the interaction from the scope of the Code of Conduct or the EEO, Harassment Policy.

[199] I am also of the view that an employee who stands on a picket line and acquiesces in or endorses conduct by another person who is not an employee may also be liable for breaches the Code of Conduct and EEO, Harassment Policy. To stand silently while another person engages in conduct that would breach an employer's policies and procedures if engaged in by the silent bystander, is arguably aiding in the conduct and the same as having engaged in the conduct. This question is not required to be determined in the present case as OCCPL has not relied on this conduct as a basis for issuing the allegation letters.

[200] Similarly, for reasons discussed above, an employee who refers to a manager or another employee as a "cunt" or a "fuckwit" on social media should not be surprised if there are repercussions in the workplace when such comments are disseminated beyond persons with whom they were intended to be shared.

[201] However, notwithstanding my views about these matters, it is the case that the significant majority of the most egregious conduct on the picket line was not engaged in by employees of OCCPL and is not the subject of the allegation letters. I am dealing with alleged conduct on the picket line between 2 and 6 July 2017 that involve employees shouting or chanting the words "grub" or "fucking grub" or "go you grub" or "maggot" at persons exiting the mine (in some cases using a loud hailer) or holding up signs bearing hand drawn pictures of large grubs. One employee is alleged to have used a mobile telephone to film or photograph vehicles leaving the Mine in a way that was said to be designed to intimidate the occupants of the vehicles. I am also dealing with allegations about social media posts between 12 May and 11 June 2017.

[202] The issue I am required to determine is whether in all of the circumstances, the conduct of OCCPL in issuing the allegation letters constitutes capricious or unfair conduct that undermines freedom of association or collective bargaining, so that orders should be made requiring that such actions cease or not be continued. I note that conduct appears to be continuing which while technically not breaching undertakings given to the Commission, is contrary to the principles of those undertakings: in particular Scabby the rat has not been deflated and although it is not on the picket line its appearance at the Girl Guide Hut is of concern. Further, the fact that signs bearing the word "scab" continue to be erected is of concern. However, there is no evidence that the employees subject of the bargaining orders sought in the application have breached the undertakings that they gave to the Commission. No application has been made to put further evidence before the Commission of any breaches subsequent to this decision being reserved.

6.3 Is the issuing of the allegation letters capricious or unfair conduct?

[203] Notwithstanding my views about the appalling conduct engaged in on the picket line, principally by persons who are not employed by OCCPL, I am of the view that in all of the circumstances it was objectively capricious or unfair for OCCPL to issue employees with allegation letters in relation to that conduct. In reaching this conclusion it is not necessary that I be satisfied that OCCPL intended to act in a manner that is unfair or capricious or that it did so for some ulterior purpose. My reasons for concluding that the issuing of the allegation letters constitutes capricious and unfair conduct are as follows.

[204] The context in which the letters were issued was that enterprise bargaining negotiations had reached a critical stage. Employees had been taking protected industrial action for almost two months with rolling stoppages being implemented for the month prior to the letters being issued. The Company had put a proposed agreement to employees who had overwhelmingly voted to reject it with only two of the 191 employees who voted being in favour of approval. Employees had decided to return to work for two days on 15 and 16 July 2017 on the assumption that the Company would be disposed to make concessions in bargaining for a new agreement as a result of the ballot. The employees had only lifted the notifications of industrial action for two days - 15 and 16 July - and left in place further notifications for 17 - 19 July. The employees were entitled to do this. The Company was equally entitled to up the ante by locking the employees out from 20 July where they have since remained and thereby indicating that its bargaining position was not changed by the ballot result.

[205] The Company was also entitled to make it clear to employees who returned to work on 15 and 16 July that the kind of conduct that was occurring on the picket line was unacceptable and would not be tolerated at the Mine. Further, the Company was entitled to put employees on notice that in the future such conduct could result in disciplinary processes being initiated on the basis that it could breach Company policies. Mr Wynn's address to the returning employees on 15 and 16 July did exactly that. The address is set out in full in Mr Wynn's witness statement on the basis that he used a pre-prepared script to address each group of employees.

[206] It is clear from that script that employees to whom the remarks were addressed could reasonably have believed that it was a prospective warning. In essence, Mr Wynn was stating that the Company had concerns about their conduct on the picket line; that conduct could breach Company policies and that regardless of their right to take industrial action, such conduct affects them at work and if continued, may result in disciplinary procedures being initiated. That is the message that the employees took from the address as is clear from their evidence to the Commission. On Mr Wynn's evidence, the presentation concluded with him telling employees that they should go home and think about what he had told them and if they were not prepared to act consistently with Company values, policies and procedures, they should look for work elsewhere.

[207] Rather than being content to simply fire a shot across the bows of the employees and the CFMEU through the address given to employees by Mr Wynn, the Company took the further step of issuing the allegation letters in circumstances where nothing further was alleged to have occurred between Mr Wynn's address and the letters being issued. For this reason, the action of the Company in issuing the letters was objectively unfair. The unfairness is highlighted by the evidence that an alternative softer approach was being considered and that a letter in similar terms to the presentation that was given by Mr Wynn had been drafted on or around 12 July 2017. The fact that a different approach may have been fairer does not of itself mean that the approach that was taken by the Company was unfair. However, the fact that an alternative approach was considered and not taken is part of the overall context in which the question of whether the conduct of OCCPL in issuing the allegation letters was capricious or unfair is considered.

[208] The departure from the alternative approach with respect to the letters about conduct on the picket line was not explained. In circumstances where the only event that occurred between the drafting of the proposed letter and the sending of the final version, was the comprehensive rejection of the Company's proposed agreement at a ballot of employees, the appearance of unfairness is heightened. Further, the lack of explanation for this departure, and the fact that both persons who had a role in sending the final letter were (on their own evidence) unaware that an alternative approach was being considered, gives rise to a general air of capriciousness.

[209] Contrary to the submissions on behalf of OCCPL, the allegation letters that were sent to employees about their conduct on the picket line do more than simply raise allegations. The letters set out the allegations and attach documentary or video evidence to support them. The letters go on to state that if proven, the allegations could constitute a breach of relevant policy. The letters are carefully worded. However, in circumstances where it is alleged - for example - that an employee has directed an offensive comment to a person crossing a picket line and video recording of the event is provided, it is unlikely that the employee would be able to assert that the conduct did not occur. Arguably, the alleged conduct is proven by the video footage. The letters setting out the allegations do not leave open mitigating circumstances that might be raised, but rather suggest that if proven the conduct is misconduct and will be dealt with accordingly.

[210] A further matter I have had regard to is the length of time that had elapsed between the employees engaging in the picket line conduct and the issuing of the warning letters. There was no urgency about it and this gives lie to the seriousness with which OCCPL states that it viewed the conduct. The conduct subject of the warning letters had been going for over a month and probably longer, at the time the allegation letters were issued, albeit for some of that period, at a different location. On or around 25 May 2017 Mr Solomon was arranging for an operative engaged by CPA, equipped with a long lens camera, to be flown by charter aircraft to the Mine, to take photos of the picket. It is probable that such extreme action would only have been taken if there was conduct on the picket line at or around that time, which was of significant concern to the Company. By 14 June 2017 CPA operatives were describing the conduct on the picket line as increased aggression with vocal and strong threatening abuse, accompanied by ill-mannered gestures. It is also clear that all of the conduct described in the allegation letters was occurring from at least 14 June 2017 including persons on the picket line directing the terms "grub", "fucking grub" and "maggot" and waving signs depicting grubs at those crossing the picket line and going to work.

[211] I do not accept that the Company could not have addressed the conduct it later made subject of the allegation letters, at an earlier time, because it could not identify who had engaged in the conduct. Had the Company adopted the approach in the first draft of the allegation letters of generally putting the CFMEU and its members on notice of its concerns about the conduct on the picket line at the point it first occurred, it would not have been necessary to precisely identify the employees who were engaging in the conduct. The Union and the employees could have also been put on notice by the simple and reasonable act of telephone contact from a manager of the Company being made with Mr Brodsky or the members of the Lodge executive.

[212] I do not accept that the delay in dealing with the conduct on the picket line was caused solely or principally because the Company was preparing the allegation letters. On Mr Wynn's evidence, Ms Cody did not commence reviewing the footage until 11 July and the final versions of the allegation letters were completed within a few days for Mr Dobbie to review. If the Company was as concerned about the conduct at that point as it asserts, then the letters could have been drafted at an earlier time. The particular instances of conduct referred to in the allegation letters took place between 2 and 6 July 2017. Instances of the same conduct had been occurring since at least 14 June 2017.

[213] I am also of the view that the security staff videoing and photographing the picket line, and those they were reporting to, gave every appearance of being more concerned about collecting evidence of poor conduct to be used against employees on the picket line than they were about the effect of the conduct or any safety issues arising from it or stopping the conduct. This is illustrated by the video footage of the fire at the picket line on 5 July 2017. The laughter in the background can only have come from those who were filming and it is inconsistent with any concern about the safety of those who were filming and those being filmed. If the conduct on the picket line as depicted in the footage was of concern to the Company from a workplace health and safety perspective, then it was also of concern well before the allegation letters were issued.

[214] Rather than dealing promptly with the conduct and its ramifications, management of OCCPL appears to have been more concerned to gather as much evidence about it as possible. No action was taken to put employees on notice about the conduct on the picket line until 15 and 16 July 2017.

[215] Even if it was fair to distribute letters in the terms utilised by OCCPL, I do not accept that that it was reasonable that OCCPL waited until 15 July to attempt to distribute the allegation letters. Although it is the custom to give such letters to employees personally, this is not what actually occurred. The letters were emailed to all except one of the employees rather than being personally given to them. If the letters were able to be distributed by email on 18 July, they could have been emailed at an earlier time, notwithstanding that the employees were taking protected industrial action. As matters transpired employees were also taking protected industrial action on the date that the letters were distributed and had been taking such action for all but two days of the one month period prior to the letters being distributed.

[216] It is also the case the usual practice of OCCPL whereby a formal complaint is required before the process of requiring employees to respond to allegations of the kind set out in the letters, was not followed. The Company had not received any formal complaints against employees with respect to conduct on the picket line. It nonetheless forwarded allegation letters to employees in the absence of formal complaints. Further, when employees alleged on 15 and 16 July 2016 that contractor employees were provoking them, no action was taken to investigate whether there was any validity to this allegation on the basis that no formal complaint had been made. This is in stark contrast to the manner in which employees who received allegation letters were dealt with. Even if I accept Mr Dobbie's evidence - as contradictory as it was - that formal complaints were made about the picket line conduct, there is no evidence that those complaints related to the conduct of employees that was the subject of the allegation letters. The complaint about the throat cutting gesture was made on 11 July and is not dealt with in the allegation letters.

[217] Mr Solomon's evidence that he wanted the security company to get as much footage of conduct on the picket line as possible to simply document the conduct potential police action and to convince the Council to move the picket line was not credible. The email to Mr Chesworth from Mr Solomon dated 6 July 2017 makes clear that the video footage requested was so that action could be taken against CFMEU personnel. There was no evidence that police action had been taken in relation to the matters that had occurred at the point the allegation letters were prepared.

[218] As conceded by Mr Wynn, it would have been reasonable for him to have made contact with Mr Brodsky to express concern about conduct on the picket line in accordance with a "gentleman's agreement" established between them. While Mr Brodsky does not categorically state that this would have resulted in any change to the conduct, the failure to do so added to the general unfairness associated with the allegation letters. Further, some of the employees who received allegation letters stated in their evidence that they would have refrained from the conduct if they had been aware that there was a possibility of disciplinary action being taken against them as a result of it. The failure of the Company to engage in this way contributed to the general unfairness associated with the allegation letters.

[219] I do not accept the reasons advanced by Mr Wynn for not making contact with Mr Brodsky. The fact that Mr Brodsky was on the picket line when some of the conduct that I have described as appalling occurred, is not a reasonable basis for failing to contact him to discuss Company concerns. Mr Brodsky did not engage in the more egregious conduct complained of by OCCPL. Further, there were meetings during the period at which Mr Wynn could reasonably have raised his concerns. Those concerns could also have been raised with the leadership of the Lodge.

[220] It is passing strange given all of the relevant circumstances, that nothing was done about the conduct on the picket line until the middle of July, coincidentally at the time the ballot in which the Company was seeking approval for its proposed agreement was being conducted. Even if it is accepted that the Company did not issue the allegation letters as a bargaining tactic, it is probable that this is how it was viewed by the recipients of those letters. In my view, this was a reasonable belief.

[221] The drafting of the letters coincided with results of the ballot for approval of the Company's proposed agreement and the overwhelming rejection of that proposal by employees. The recipients of the letters were the entire group of bargaining representatives with the exception of one person, and the entire executive of the Oaky North Lodge. The timing of the allegation letters could reasonably be seen as a powerful response to the rejection of the proposed agreement put forward by OCCPL, whether the Company intended it to be so or not. In all of these circumstances, it is more probable than not that the allegation letters gave employees who received them and all those who were active in the bargaining, a message equivalent to: "I'll see you and raise you."

[222] On balance, and in all of the relevant circumstances, I am satisfied and find that the conduct of OCCPL in issuing the allegation letters with respect to activities on the picket line in the manner and at the time that it did, was capricious and unfair. I am also of the view that in all of the circumstances that pertained when social media comments subject of the allegation letters were made it was unfair to issue letters to employees in relation to possible breach of social media policy.

[223] The social media posts subject of the allegation letters were made between 12 May and 11 June 2017. There was a significant delay between the social media posts being made and the letters being sent to employees who made them. This delay was not occasioned by circumstances where persons against whom the posts were directed discovering the posts, taking offence and complaining about them. Indeed there is no evidence that there was any complaint about the posts.

[224] Rather, the evidence establishes that there was a concerted effort by management of OCCPL to investigate and uncover social media posts made by CFMEU members employed by OCCPL and those supporting them. Indeed, so concerted was this attempt that it was given the title "Project Zuckerberg" presumably with reference to the founder of Facebook. Mr Dobbie's evidence about this matter was at best dissembling and at worst, dishonest. First Mr Dobbie said that he alerted Mr Wynn to only one post of which he was aware. Mr Dobbie also denied knowledge of an investigation into social media posts or that there was such an investigation. When shown his own email to Mr Nicholls dated 13 June 2017 referring to an investigation, Mr Dobbie was forced to concede that there was an investigation about Facebook posts as stated in that email and that more than one post was being investigated.

[225] It is also passing strange that the investigation into the posts was well underway by 13 June when Mr Dobbie sent an email to Mr Wynn referring to that investigation, and yet no action was taken about the posts until over a month later. The evidence before the Commission establishes that letters to the relevant employees were drafted by 13 June 2017 and were being circulated for consideration by 30 June. The fact that they were not distributed to employees until 18 July 2017 was not adequately explained, and for the reasons set out above and in relation to the allegation letters regarding conduct on the picket line, I do not accept that this was the first opportunity to distribute the letters.

[226] Coincidentally those letters were sent at or around the time that the result of a ballot which overwhelmingly rejected an agreement proposed by the Company was known and at the same time as allegation letters were written to employees in relation to their conduct on the picket line which I have found to be unfair and capricious action by OCCPL in the circumstances that then pertained. For the same reasons discussed in relation to the allegation letters about picket line conduct, an alternative approach such as a general warning that social media activity was being monitored, could have been taken rather than directing allegation letters to employees in the first instance. The failure to do so in all of the circumstances was unfair. The lack of a reasonable explanation for such action by OCCPL also renders it capricious.

[227] I have also considered the evidence of the employees who received the allegation letters - which I accept - that they had no concept that their conduct on the picket line or on social media could be in breach any Company policy on the basis that they were engaging in protected industrial action. The employees believed that because they were engaging in protected industrial action they were beyond the scope of Company policy and procedures. This was a live issue in these proceedings and employees can hardly be blamed for holding that view. Regardless of the correctness of the belief, I have no reason to doubt that it was not honestly held. It was not an unreasonable view in the circumstances. Similarly, I accept the evidence that employees who posted comments on the CFMEU's Facebook page that they believed that the page was private and that their comments would not be viewed other than by members of the Union and that it did not occur to them that a Union Facebook page was caught by the Social Media Policy. It is to be hoped that employees have now been disabused of those views.

6.4 Is the direction in relation to Union clothing capricious or unfair conduct?

[228] I am satisfied that the direction issued by Mr Wynn on 15 and 16 July, on behalf of OCCPL, in relation to the wearing of Union clothing before and after work, was capricious. The reasons advanced by Mr Wynn were that the direction related to a particular shirt which had been worn on the picket line and that seeing persons wearing this shirt in the workplace would cause distress to persons been subjected to abuse and intimidation while crossing the picket line. Witnesses for the CFMEU maintained that the direction originally related to a particular shirt but was later extended to other items of clothing branded with the CFMEU logo and that clothing branded with the names of other Unions was allowed. Even if it is accepted that the direction related to only one shirt branded with the name of the CFMEU, the direction was capricious.

[229] As I have previously stated, the conduct on the picket line was appalling. I accept that it likely caused great distress to those who were subjected to it. I further accept that Mr Wynn had every right to be angry about the conduct and to speak to employees about the ramifications of their behaviour in the strongest terms. However, I am unable to accept that the direction about the wearing of Union branded clothing, even if it related to a particular shirt, was a reasonable response to the picket line conduct and its effect.

[230] The entire production workforce at the Mine are members of the CFMEU. Those who were active on the picket line are part of that workforce and known to most of the persons who crossed the picket line to go to work. This is so regardless of the fact that the CFMEU members in question are wearing CFMEU branded clothing. I do not accept that the fact that the CFMEU members are wearing a particular item of clothing, could have any particular impact on those who worked while the CFMEU members were taking protected industrial action or were locked out of the mine. In particular, I do not accept this proposition in circumstances where there is no direct evidence of any complaint about the shirt in question or its effect being made by any person.

[231] Other than the fact that the shirt in question is a particularly unattractive shade of fluorescent green and is branded with the name of the CFMEU, there is nothing out of the ordinary about it. Absent a rat is no evidence that by wearing the shirt the employees were doing anything other than what they normally did when coming to work or that by doing so they intended to engage in conduct at the workplace similar to that they had been engaging in on the picket line. To the contrary, the employees were returning to work having cancelled a period of notified protected industrial action and after rejecting an agreement proposed by the Company, in anticipation that this would cause the Company to change its bargaining position. It was unfair for the direction about the shirts to be issued in those circumstances.

[233] It is also apparent from the evidence that there was no intention on the part of the Company to allow employees to commence work on 15 or 16 July 2017. The employees' swipe cards had been deactivated so that they could not enter the Mine site by the usual means. They were directed to attend a briefing in the training room and were then sent home on the basis that they were surplus to requirements. In the light of these circumstances there was no rational basis for the direction about the wearing of Union branded shirts.

6.5 Are the security measures implemented by OCCPL capricious or unfair conduct?

[234] I accept that as a general proposition it is not unfair or capricious for OCCPL to monitor activity on the picket line on the basis that it has a legitimate interest in ensuring that persons are able to enter and exit the Mine site and that the safety of such persons is protected. The picket line is in proximity to the Mine and is established and maintained for the purpose of sending a message to those entering and exiting the mine about the views of the CFMEU and its members in relation to the QCCPL's bargaining position and the fact that employees of contractors and staff of the Company are performing the work of CFMEU members while they are taking protected industrial action or are locked out.

[235] Persons crossing the picket line to whom views of CFMEU members are being directed, include staff of OCCPL and employees of contractors, at least some of whom will be employed after the dispute with the CFMEU and its members ends. I also accept as a general proposition that if the CFMEU and its members choose to express their views in a manner that intimidates, harasses and vilifies those who are attempting to go to work, then that conduct will likely impact on the workplace and OCCPL is entitled to instigate disciplinary proceedings by commencing an investigation of the conduct and putting allegations about that conduct to employees. This is so, notwithstanding that when they engaged in the conduct employees were taking protected industrial action or Union activity.

[236] As a general proposition, I further accept that it is neither unfair nor capricious for OCCPL to monitor employees on the picket line (including by obtaining reports or causing video and photographs to be taken of their conduct) for reasons including ensuring that their conduct is not in breach of any lawful and reasonable policies directed at providing a safe and healthy workplace free of harassment and discrimination. There is no suggestion that OCCPL's policies in relation to Conduct, EEO and Social Media are anything other than lawful and reasonable. The issue in dispute is whether those policies apply when employees are taking protected industrial action or are subject to employer response action and locked out of their employment. For the reasons discussed above, in my view the policies can and do apply in such circumstances.

[237] As a general proposition I accept that OCCPL has a legitimate interest in ensuring managers, staff members and employees of contractors living in Tieri, including at the accommodation provided by OCCPL, are protected, and that Company property is not damaged. There is some evidence of a complaint that stones were thrown onto the roof of a residence and of staff or managers requesting patrols of their homes due to concerns about their personal security. I can well understand those concerns after viewing some of the conduct of persons on picket line. However, it is also the case that the persons who have engaged in the more serious conduct on the picket line are not employees of OCCPL and do not live in Tieri.

[238] There is also evidence that a water tank on the Mine site was vandalised by having graffiti written on it and of other acts of vandalism including defacing of signs, writing on roads and placing of handwritten signs on the sides of roads. Although these have occurred on public land and are arguably matters for the Police, I accept that they are related to the dispute and impact on the workplace. The proposition that some person unconnected with the CFMEU and the present dispute is engaging in acts of vandalism and erecting signs with the term "scab" written above the names of persons who are working while CFMEU members are locked out, is improbable. OCCPL has a legitimate interest in ensuring that these types of incidents do not occur.

[239] Notwithstanding that there are legitimate reasons for security operations to be conducted at or in proximity to the Mine site; at the picket line; and at or around the homes of staff and managers in Tieri, I am satisfied that CPA has been engaged in surveillance of employees in their homes and at other locations in Tieri in a manner which is inappropriate. It is clear from the evidence that the level of the security operations is outside the scope of what would be reasonable in the circumstances. The evidence about those operations is also inconsistent with the evidence of Mr Solomon and Mr Chesworth in relation to what the scope of the operations was and the manner in which they were carried out. I did not find either Mr Solomon or Mr Chesworth to be credible witnesses in relation to these matters and the evidence both gave about some of them was highly improbable.

[240] The evidence establishes that Mr Chesworth, CPA's operative in Tieri, requested by email dated 24 June 2017, that Mr Solomon provide a list of addresses "for all CFMEU members". The reason for such a request was stated in that email to be "so that we can update our information on our maps of union houses and members." It is telling that no request is made for names of CFMEU members and it is more probable than not that CPA already had a list of names Union members. It is also telling that the request is made for all addresses so that "union houses and members" can be identified.

[241] It is more probable than not that all addresses of Union members were requested for the purpose of identifying those perceived to be troublesome or more active on the picket line. The request was made so that information that is already on maps of "union houses and members" could be updated. Clearly the information was not being requested for the purposes of creating maps of Union houses and members, but for the purposes of updating information that was already in existence. Equally clear is that the information was sought to identify particular Union members amongst the group of all Union members.

[242] That there were maps in existence on 24 June 2017 containing at least the addresses of CFMEU members is apparent from the evidence of Mr Chesworth who said that the maps were the source of information used by Ms Wheatley to complete the "intel brief" she was tasked to undertake on 24 June 2017, which included "intel on known addresses of possible Union members. If, as Mr Chesworth asserted, the maps that had already been prepared by CPA were the source of information for the "intel brief", Ms Wheatley would not have had to "collect" information as CPA already had it. It is more probable than not that Ms Wheatley obtained additional information about the addresses of CFMEU members for the purposes of updating the information on the map albeit from a source other than Mr Solomon. Mr Chesworth's evidence that Ms Wheatley referred only to the information already on the map is highly improbable. Mr Solomon's evidence that the maps did not exist and there was nothing to update, was at odds with that of Mr Chesworth.

[243] I also found Mr Chesworth's evidence about the manner in which the information on the map was collected, to be highly improbable. There were significant inconsistencies in the explanation of the map provided by Mr Chesworth. Mr Chesworth said that while on patrol, security operatives identified houses where aggressive CFMEU members lived by the fact that persons at those addresses directed rude gestures to security operatives while they were doing their rounds. The addresses of houses from which rude gestures allegedly emanated, were then placed on maps by security operatives and included by Ms Wheatley in an "intel brief."

[244] The entire premise of the manner in which this so called "intel brief" was prepared is absurd. There is no logical basis to conclude that persons who make rude gestures at security operatives who are driving past their homes are the same persons as those who are alleged to have been "playing up" on the picket line. Security operatives are highly visible in the town of Tieri, driving around in easily identifiable vehicles. In circumstances where employees are entitled to the quiet enjoyment of their own homes, it unsurprising that they would direct rude gestures to security operatives patrolling the streets and repeatedly passing by their homes in those vehicles. It does not follow that these same persons would be aggressive on the picket line and that there was any justification for identifying their homes on a map.

[245] The most probable reason for the existence of a map showing addresses of aggressive CFMEU members or those who had "played up on the picket line" is for the purpose of undertaking surveillance of those persons at their homes or in Tieri. If surveillance was limited to the picket line, there would be no need for CPA operatives to have the addresses of persons on it whether or not they were "playing up". Given that OCCPL owns virtually every house in Tieri and leases those houses to managers, staff members or production workers, and that all production workers are members of the CFMEU, the identification of houses occupied by CFMEU members was not a difficult exercise.

[246] Such an exercise could have been undertaken by the default method of identifying houses occupied by managers and staff, on the basis that any house owned by OCCPL which was not occupied by managers or staff was occupied by a CFMEU member. If the real purpose of the security operations in Tieri was to protect the homes of staff and managers, then it would only have been necessary to identify the homes occupied by those persons and to monitor those homes. On Mr Solomon's evidence, the names and addresses of managers and staff whose homes were to be monitored was provided to CPA from the outset. There is no reasonable basis for the request for addresses of CFMEU members or the preparation of an "intel brief" containing this information, other than that CPA operatives were attempting to identify the houses of members of the CFMEU who were seen to be aggressive (most likely because they were active on the picket line). It is more probable than not that the only purpose for such an exercise was to monitor those CFMEU members at home.

[247] This is consistent with the fact that in May 2017, prior to the addresses of CFMEU members being requested on 24 June 2017, a document was in existence entitled "Oaky North Preparation Guide for Stoppage May 2017" which contained a list of names of the Lodge Executive members. The same document contained a blank column indicating that employees with history and identification of employees that may constitute a particular threat would be discussed. The members of the Lodge executive named in the Preparation Guide gave evidence of surveillance at their homes. I do not accept the evidence of Mr Chesworth that the views of the employees about the surveillance were based on the fact that cars driven by security personnel were simply doing their rounds in Tieri.

[248] That inappropriate monitoring of employees at home was occurring is also apparent from email reports prepared by CPA operatives on 25 June that there was a party on Malvern Avenue and a secondary party on Bradman Street.[140] That email also reported that there were loud patrons at the pub that night. The email of 6 July 2017 reporting that CFMEU members were in the pub until 02:30 - 03:00 hours that morning is further evidence of this.[141] The explanation for those reports provided by Mr Solomon and Mr Chesworth - that security operatives were complaining about being kept awake by the parties and the pub activities - was highly improbable. If the rowdiness of parties and activities in the pub was keeping security operatives awake at night, I have no doubt that CPA would have reported this by some other means than in an emailed report entitled "Daily Update" for which CPA doubtless charged a fee to OCCPL.

[249] It is more probable than not that CPA was engaged in a series of clandestine activities involving surveillance of employees in their homes and while they were in locations in the community such as the pub. On balance, the level of security operations and their scope is unfair on the basis that it is a disproportionate response to the conduct of the CFMEU and its members. Although the behaviour on the picket line has been appalling, there is little if any evidence before me of any CFMEU member employed by OCCPL engaging in any conduct in Tieri, including at the pub, the golf club, the Girl Guide Hut, their own homes and the homes of staff and managers or employees of contractors which could be described as threatening, harassing or intimidating.

[250] If OCCPL seeks to protect the homes of staff and managers in Tieri or its other assets in and about the town, then it can undertake security operations for these purposes without surveillance of CFMEU members in their homes or in Tieri. If members of the CFMEU wish to have parties at their homes or stay in the pub until 2.00 am, then they should be free to do so without being the subject of monitoring and reporting by a security firm. I am satisfied and find that inappropriate surveillance of CFMEU members at their homes and at other locations in Tieri has been occurring and that this is unfair or capricious conduct.

6.6 Does the unfair or capricious conduct undermine collective bargaining or freedom of association?

[251] I am also satisfied that the unfair or capricious conduct identified above undermines collective bargaining and freedom of association. The conduct has occurred at a critical time in the negotiations. Employees have engaged in protected industrial action and maintained their bargaining position in the face of being locked out for an extensive period. They have also voted overwhelmingly to reject an agreement proposed by OCCPL. Each of the parties has taken advantage of various mechanisms provided for by the Act to escalate the bargaining and to take action and retaliatory action against each other.

[252] Within a short space of time after a ballot of employees overwhelmingly rejected the Company's proposed agreement, conduct which I have found to be unfair or capricious was undertaken against employees. The employees have given evidence that the conduct of the Company subject of the application for bargaining orders is causing them to fear for the security of their employment and is having an impact on their desire to continue the bargaining process. There is also evidence that the effect extends beyond the employees who have been given allegation letters and is or is likely to cause other employees who have not been given such letters to be concerned, such that their attitude to bargaining and their engagement in Union activity will be curtailed.

[253] I accept the evidence of the employees in this regard. The fact that bargaining is continuing and employees are maintaining their bargaining position despite the fact that the allegation letters have been issued, is not indicative that the letters are having a minimal impact. It is equally probable that employees are maintaining their position because the Company has undertaken not to proceed with the allegation letters pending the hearing and determination of this matter.

[254] Regardless of whether OCCPL intended to undermine collective bargaining and freedom of association, that is the effect or likely effect of the conduct of the Company. Allegation letters have been unfairly or capriciously issued to employees who are engaging in Union activity and mounting a significant campaign in support of a particular bargaining position. Those letters are causing employees to be concerned about the security of their employment in already difficult circumstances. The unfair or capricious direction has been issued reversing the longstanding practice of employees being permitted to wear CFMEU branded apparel at work. This direction, lacking any reasonable basis, can only further undermine Union activity by sending a message to employees that the CFMEU and those who associate with the Union are perceived in an adverse light by managers of OCCPL.

[255] The unfair conduct of surveillance operations in Tieri can only have caused distress and concern to employees and their families and further undermined their engagement in Union activities associated with collective bargaining and membership of the CFMEU.

[256] I have concluded that in issuing the allegation letters; issuing the direction revoking previous permission for employees to wear Union clothing in the workplace and undertaking surveillance of employees at their homes and in Tieri, OCCPL has engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining.

[257] An application for bargaining orders has been made by the CFMEU. It is not in dispute that the requirements in s. 230(1)(b) of the Act have been met on the basis that the employer has agreed to bargain for an agreement. I am satisfied that it is reasonable in all of the circumstances to make bargaining orders. Accordingly, the following orders will issue with this Decision:

• OCCPL will withdraw the direction issued to employees that they are no longer permitted to wear clothing associated with the CFMEU into and out of the Mine and will not issue any new directions to the same or similar effect;

• OCCPL cease undertaking or causing to be undertaken, surveillance of employees other than in the precincts of the Mine or while employees are engaged in any picket or other protest activity organised in the vicinity of the Mine;

• OCCPL will take no further steps with respect to the allegation letters issued to employees including disciplinary action against employees the subject of the investigation letters; and

• OCCPL will not rely on the investigation letters in any respect.

[258] Notwithstanding that I have decided to issue the orders, I do so on the basis that:

• There has been conduct on the picket line that is appalling and I do not support or condone it;

• That conduct is likely to cause irreparable harm to the workplace relationships at the Mine if it has not already done so and is placing the health and safety of those who engage in it and those subjected to it, at risk;

• The CFMEU and its members on the picket line have every right to express their anger and disgust at the fact that their work is being performed by staff and employees of contractors while they are taking protected industrial action or are locked out of the Mine, by conducting a peaceful picket or engaging in other lawful Union activity;

• The CFMEU and its members on the picket line can legitimately express their anger and disgust by chanting slogans, waving signs and playing music;

• The CFMEU and its members do not have the right to express their anger and disgust in any manner which abuses, harasses, intimidates or vilifies staff and contractor employees or any person who crosses the picket line, or works during periods when CFMEU members are locked out or taking protected industrial action;

• For the avoidance of doubt, and without being exhaustive, the terms "cunt", "maggot", "grub", "dog", "fuckwit" and "scab" are abusive, offensive, intimidating and constitute harassment and vilification, as do signs depicting those terms or noises or gestures intended to convey the same meaning;

• The fact that the employees are taking protected industrial action or engaging in lawful Union activity does not give them immunity from disciplinary action for breaches of Glencore policies and procedures where there is a sufficient connection between the conduct that allegedly breaches the relevant procedure and the workplace;

• Employees who continue to direct words, actions, gestures and visual displays that are abusive, harassing, intimidating and vilifying to persons that they will be working with when the present dispute ends are liable to have disciplinary procedures instigated against them, regardless of the fact that they are taking protected industrial action or are engaging in lawful Union activity at the time;

• The conduct of OCCPL is equally appalling and in particular the clandestine and quasi-military activity of its security contractor in and around Tieri was a disproportionate response to the circumstances which then prevailed and can only have inflamed the dispute;

• Regardless of whether or not it was intended, the conduct of OCCPL in issuing the allegation letters, the direction in relation to Union branded clothing and the surveillance, was capricious or unfair conduct which undermined collective bargaining and freedom of association;

• My findings in this decision and the orders I have issued relate only to events in the period from May to July 2017; and

• If OCCPL, the employees and the CFMEU continue on their present path there will likely be further litigation and any prospect of resolving the underlying bargaining dispute will disappear, if it has not already done so.

[259] The Commission continues to be available to the parties should they wish to engage in further discussions in an attempt to break their present impasse.

Mr R Reitano of Counsel and Mr C Massey of Junior Counsel instructed by Hall Payne Lawyers for the Applicant.

Mr C J Murdoch, Senior Counsel with Ms G Dann of Counsel instructed by Corrs Chambers Westgarth for the Respondent.

[1] Exhibit R3 Witness Statement of Damien Wynn [7].

[2] Transcript 6 September 2017 PN2330 - 2338.

[3] Exhibit A2 - Statement of Christopher Iain Brodsky; Exhibit A32 - Reply Statement of Christopher Iain Brodsky; Exhibit A34 - Further Reply Statement of Christopher Iain Brodsky.

[4] Exhibit A3 - Statement of Mark Barrass

[5] Exhibit A4 - Statement of Rhys O'Donoghue.

[6] Exhibit A5 - Statement of Kerry Saunders.

[7] Exhibit A6 - Statement of Michael Murray.

[8] Exhibit A7 - Statement of Nick Armstrong.

[9] Exhibit A8 - Statement of Wade Bidgood.

[10] Exhibit A9 - Statement of Nathan Lake.

[11] Exhibit A10 - Statement of Ross Clark.

[12] Exhibit A11 - Statement of Robert Davis.

[13] Exhibit A12 - Statement of Mitch Wyatte.

[14] Exhibit A13 - Statement of Kerrod Slatter.

[15] Exhibit A14 - Statement of Daniel Curry.

[16] Exhibit A15 - Statement of Kris-Anne Justine Birch.

[17] Exhibit A16 - Statement of Lachlan Michael Robert Jarrett.

[18] Exhibit A17 - Statement of Michael Corrie.

[19] Exhibit A18 - Statement of Jimmy McConachy.

[20] Exhibit A19 - Statement of Thomas Farmer.

[21] Exhibit A20 - Statement of Ryan Richardson.

[22] Exhibit A21 - Statement of Michael Andolfetto.

[23] Exhibit A22 - Statement of Matthew Earl.

[24] Exhibit A23 - Statement of Matthew Flavel.

[25] Exhibit A24 - Statement of Keith Thompson.

[26] Exhibit A25 - Statement of Karl Batey.

[27] Exhibit A26 - Statement of Corey James Sullivan.

[28] Exhibit A27 - Statement of Adam Matthew Kasprowicz.

[29] Exhibit A28 - Statement of Adam Brady.

[30] Exhibit A29 - Statement of Jerry Ahern.

[31] Exhibit A30 - Statement of Ben Earl.

[32] Exhibit A31 - Statement of Danny Allen.

[33] Exhibit A33 - Witness Statement of Randal Meier.

[34] Exhibit A35 - Reply Statement of Jeremy Charles Forsyth.

[35] Exhibit A36 - Reply Statement of Ian Thomas Morrissey.

[36] Exhibit A37 - Reply Statement of Adrian John Woodman.

[37] Exhibit A38 - Reply Statement of Leslie Stephen Morrisey.

[38] Exhibit A29 - Reply Statement of Anthony Robert Kirsopp.

[39] Exhibit R3 - Witness Statement of Damien Wynn; Exhibit R5 - Supplementary Witness Statement of Damien Wynn.

[40] Exhibit R4 - Witness Statement of Scott Dobbie; Exhibit R6 - Supplementary Witness Statement of Scott Dobbie.

[41] Exhibit R7 - Witness Statement of Michael Benjamin Solomon.

[42] Exhibit R8 - Witness Statement of Michael Craig Williams.

[43] Exhibit R9 - Witness Statement of Martin James Chesworth.

[47] Exhibit A2 Statement of Christopher Brodsky [37] and Annexure "CIB4".

[48] Exhibit A34 Further reply statement of Christopher Brodsky [7].

[49] Exhibit R3 - Statement of Damien Wynn - Annexure DBW-18.

[50] Exhibit R9 - Statement of Martin Chesworth [45].

[51] Exhibit R3 - Statement of Damien Wynn - Annexure DBW-19.

[52] Transcript 6 September 2017 PN2630 - 2644.

[53] Transcript 6 September 2017 PN2665 - 2678.

[54] Transcript 6 September 2017 PN2694 - 2695.

[55] Transcript 6 September 2017 PN2706 - 2708.

[56] Transcript 6 September 2017 PN1391-1396.

[57] Transcript 6 September 2017 PN1388 - 1412.

[58] Transcript 6 September 2017 PN1452.

[59] Transcript 6 December 2017 PN1417 - 1433.

[60] Transcript 5 December 2017 PN137 - 148.

[61] Exhibit A12 - Statement of Mitchell Wyatte [47].

[62] Exhibit A8 - Statement of Wade Bidgood [27].

[63] Exhibit A9 - Statement of Ross Clark [48] - [51].

[64] Transcript 5 September 2017 PN1130 - 1143.

[65] Transcript 5 September 2017 PN550 - 555.

[66] Transcript 5 September 2017 PN1005 - 1042.

[67] Transcript 5 September 2017 PN994.

[68] Transcript 6 September 2017 PN1510 - 1518.

[69] Transcript 6 September 2017 PN1534 - 1537.

[70] Transcript 6 September 2017 PN2775.

[71] Transcript 6 September 2017 PN2756 - PN2757.

[75] Transcript 6 September 2017 PN1676 - PN1683.

[76] Exhibit A12 Witness statement of Mitchell Wyatt [39].

[77] Transcript 5 September 2017 PN916 - PN939.

[78] Exhibit R5 Supplementary Witness Statement of Damien Wynn [57].

[79] Transcript 6 September 2017 PN1712 - 1717.

[80] Transcript 6 September 2017 PN1736.

[82] Transcript 6 September 2017 PN1769 - PN1774.

[84] Transcript 6 September 2017 PN2856.

[85] Exhibit A5 Statement of Kerry Saunders at [50]; Exhibit A7 Statement of Nick Armstrong at 34; Exhibit A8 Statement of Wade Bidgood at [40]; Exhibit A12 Statement of Mitchell Wyatte at [70]; Exhibit A13 Statement of Kerrod Slatter at 43; Exhibit A18 Statement of Jimmy McConachy at [31]; Exhibit A19 Statement of Thomas Farmer at [34]; Exhibit A24 Statement of Keith Thompson at [39]; Exhibit A25 Statement of Karl Batey at [34]; Exhibit A31 Statement of Danny Allen at [81].

[87] Exhibit A20 - Statement of Ian Richardson.

[90] Exhibit A22 - Statement of Mr Matthew Earl.

[91] Exhibit A30 - Statement of Ben Earl.

[92] Exhibit A28 - Statement of Adam Brady.

[93] Exhibit A30 - Statement of Ben Earl.

[94] Exhibit R5 Supplementary witness statement of Damien Wynn paras 31-32.

[95] Exhibit A4 - Statement of Rhys O'Donoghue; Exhibit A8 - Statement of Wade Bidgood; Exhibit A9 - Statement of Nathan Lake; Exhibit A10 - Statement of Ross Clark; Exhibit A11 - Statement of Robert Davis; Exhibit A12 - Statement of Mitchell Wyatte; Exhibit A16- Statement of Lachlan Jarrett; Exhibit A18 - Statement of Jimmy McConachy; Exhibit A29 - Statement of Jerry Ahern: Exhibit A31 - Statement of Danny Allen.

[96] Exhibit R5 - Supplementary statement of Damien Wynn.

[99] Transcript 6 September 2017 PN2067 - 2070.

[101] Transcript 6 September 2017 PN2123 - 2125.

[102] Transcript 6 September 2017 PN2127 - 2140.

[104] Transcript 6 September 2017 PN2314.

[106] Transcript 6 September 2017 PN2186.

[107] Transcript 6 September 2017 PN2194-2206.

[110] Transcript 6 September 2017 PN2262 - 2263.

[112] Transcript 6 September 2017 PN2059.

[113] Transcript 6 September 2017 PN2391 - PN2412.

[114] Transcript 6 September 2017 PN2413 - PN2454.

[115] Transcript 6 September 2017 PN2456 - PN2467.

[117] Transcript 6 September 2017 PN2468 - PN2496.

[118] Transcript 6 September 2017 PN2497 - PN2509.

[119] Transcript 6 September 2017 PN2514 - PN2548.

[120] Transcript 6 September 2017 PN2549 - PN2563; Exhibit 57.

[122] Transcript 6 September 2016 PN2093.

[123] Exhibit R5 - Supplementary Statement of Damien Wynn - Annexure DBW5.

[124] Exhibit R9 - Witness Statement of Martin Chesworth - Annexure MJC5.

[125] Exhibit R9 - Witness Statement of Martin Chesworth - Annexure MJC6.

[126] CFMEU v Anglo Coal (Capcoal Management) Pty Ltd T/A Capcoal [2016] FWC 8847 (Capcoal) at [97] per DP Asbury.

[127] Capcoal op cit at [101] - [102].

[136] (1992) IR 82 at 89.

[137] McManus v Scott-Charlton [1996] FCA 1820; (1996) 70 FCR 16.

[138] Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal Pty Ltd v Goodall [2016] FWCFB 5492; Horner v Kailis Bros Pty Ltd [2016] FWC 145.

[139] [2014] HCA 41; (2014) 253 CLR 243.

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