Director of the Fair Work Building Industry Inspectorate v Adams

Cases cited: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290; (2004) 133 IR 197 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 320 ALR 61; [2015] FCAFC 25 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Re News Corp Ltd (1987) 15 FCR 227 Shuster v Minister for Immigration and Citizenship (2008) 167 FCR 186; [2008] FCA 215 Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108; [2008] FCAFC 26 Warrell v Walton (2013) 233 IR 335; [2013] FCA 291 Westpac v Banking Corporation v Australian Securities and Investments Commission (2009) 181 FCR 379; [2009] FCA 1506

Date of hearing: 23-24 March 2015

Date of last submissions: 1 April 2015

Place: Perth

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 115

Counsel for the Applicant: Mr RL Hooker

Solicitor for the Applicant: Corrs Chambers Westgarth

Counsel for the Respondents (excluding the 31st and 75th Respondents): Mr KJ Bonomelli

Solicitor for the Respondents (excluding the 31st and 75th Respondents): Slater & Gordon

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION WAD 26 of 2014

BETWEEN: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

JUDGE: BARKER J DATE OF ORDER: 12 AUGUST 2015 WHERE MADE: PERTH

1. The Court finds each of the respondents (not including the 31st and the 75th respondents) contravened s 417(1) of the Fair Work Act 2009 (Cth) as alleged.
2. The Court finds that the proceeding insofar as it alleges contravention of s 421(1) of the FW Act by each of the respondents should be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION WAD 26 of 2014

BETWEEN: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

JUDGE: BARKER J DATE: 12 AUGUST 2015 PLACE: PERTH

REASONS FOR JUDGMENT 1 The Director of the Fair Work Building Industry Inspectorate seeks declarations that each of the respondents (not including the 31st and 75th respondents, against whom the Director does not currently seek relief), on 28 February 2013, contravened each of s 417(1) and s 421(1) of the Fair Work Act 2009 (Cth) (FW Act) by engaging in industrial action. 2 The Director also seeks orders pursuant to s 546(1) of the FW Act imposing pecuniary penalties against each of those respondents in respect of whom contraventions are found, as well as an order, pursuant to s 546(3)(a) of the FW Act, that the pecuniary penalties be paid to the Director. 3 By its statement of claim in the proceeding, the Director pleads that: John Holland Pty Ltd was at material times the head contractor responsible for the construction of the New Children's Hospital project located in Nedlands, Western Australia (the site); Crown Construction Services Pty Ltd was a subcontractor of John Holland engaged to perform work on the project at the site; Crown engaged each of the respondents whose employment consisted of, or included, building work, and so was a "building industry participant" within the meaning of s 4(1) of the Fair Work (Building Industry) Act 2012 (Cth); on 13 September 2012, Fair Work Australia (FWA), under the FW Act, approved an enterprise agreement signed and dated 21 August 2012, and entitled Crown Construction Services Pty Ltd Enterprise Agreement 2012 (Crown enterprise agreement); the Crown enterprise agreement bound the Construction, Forestry, Mining and Energy Union (CFMEU) and each of the respondents (who may also be referred to as Crown employees) and had a nominal expiry date of 31 October 2014; on 19 February 2013, the Fair Work Commission (FWC) made the John Holland Pty Ltd Children's Hospital Industrial Action - February 2013 Order (final FWC order); the final FWC order applied to the CFMEU and each of the Crown employees, came into effect at 3pm on 19 February 2013, applied for six months and provided, among other things, that the Crown employees must not engage in or threaten to engage in any industrial action at the site; the final FWC order was served on each of the respondents in accordance with the service requirements of the order; at all material times each of the respondents knew that the final FWC order had been made and was in force; as well as the substance of the terms of the order; and, in particular, that it prohibited them from engaging in or threatening to engage in industrial action at the site; on 28 February 2013, the Crown employees were rostered to start work at 6.30am; on 28 February 2013, from approximately 7.30am each of the Crown employees had left the site; and failed or refused to attend for work at the site; and/or failed or refused to perform any work at all on the site; and thus engaged in "industrial action" within the meaning of s 19(1)(c) of the FW Act and [4.1(c)] of the final FWC order; this industrial action was not authorised or agreed to by Crown; in the premises, each of the respondents, as Crown employees, contravened ss 417(1) and 421(1) of the FW Act by taking this industrial action. 4 In the conduct of the proceeding to hearing, each of the respondents against whom the Director currently seeks relief claimed what is generally called a penalty privilege in such a civil penalty proceeding, and did not admit many of the allegations made by the Director. 5 Each respondent, however, admitted: the status of the Director and its entitlement to bring the proceeding; the status of the respondent as an employee of Crown, that Crown was a "national system employee" under s 13 of the FW Act, and that their employment consisted of, or included, building work, and so they were a "building industry participant" as alleged; that the CFMEU was an "employee organisation" under s 12 of the FW Act; that on 13 September 2012, FWA approved the Crown enterprise agreement; that the Crown enterprise agreement bound the CFMEU and each of the respondents as Crown employees, and had a nominal expiry date of 31 October 2014, save to say that each respondent relied on the precise terms of the Crown enterprise agreement as to its coverage and operation; and that on 19 February 2013, the FWC made the final FWC order; but denied: the application of the final FWC order and other pleaded aspects, and relied on "the precise terms of the Crown Enterprise Agreement as to its operation and application" (perhaps intending to refer to the final FWC order). 6 Each respondent denied contravention of s 417(1) or s 421(1) of the FW Act and that the Director is entitled to the relief claimed or any relief. 7 At the hearing of the proceeding, the Director adduced evidence from Mr Stephen Grafton Chaseling, who at material times was the construction director for John Holland on the New Children's Hospital project at the site; Ms Sarah Louise Hale, who at material times was the human resources industrial relations manager for John Holland on the project; and Mr Christopher Richard Stanley, who at material times was engaged by the Director as an inspector. 8 Through these witnesses the electronic card records of John Holland that recorded entrances and exits from the site on 28 February 2013, timesheets of Crown for the week ending 5 March 2013, payslips of Crown for the pay period ending 5 March 2013, and sign on/off sheets of Crown dated 28 February 2013 went into evidence. 9 Mr Chaseling and Ms Hale also gave direct oral evidence about an exchange that Mr Chaseling had with Mr Matt Waters, an official of the CFMEU, at around 6.35am on 28 February 2013. 10 As a result of this evidence, the Director contends that it has proved that each of the respondents engaged in "industrial action" for the purposes of the FW Act and the final FWC order, that Crown did not authorise the industrial action, and that there is no relevant defence to the proceeding, and so contravention of ss 417(1) and 421(1) has been established. 11 None of the respondents - who as noted above, in each case has claimed a penalty privilege in respect of the proceedings brought against them - chose to go into evidence following the closure of the Director's case. Each submits that the contraventions alleged against them have not been proved. 12 In particular, the respondents contend that: for the purposes of the s 421(1) contravention proceeding, the final FWC order is defective for enforcement purposes, especially because there is no evidence that each of subparas (a), (b) and (c) of [5.1] of the order, requiring its service, have been satisfied; and further, that the proceeding cannot succeed because it has not been proved that the respondents had knowledge either of the order (or its substance) or the consequences of non-compliance with the order, each of which they contend needs to be proved before contravention can be found against them; the action alleged against them does not constitute "industrial action", as the action alleged does not have the requisite "industrial character"; further, on the evidence, for the purposes of the FW Act and the final FWC order, Crown, the employer of the respondents, authorised or agreed to the relevant actions; and in any event, the evidentiary case advanced by the Director was insufficient to prove, and the documentary materials referred to above do not adequately prove, the case against them. 13 The respondents were at pains to emphasise that each of the respondents were the subject of separate allegations and that they should not be treated as if they were one, composite respondent. 14 The Director submits the relevant actions have an industrial character; that Crown did not authorise or agree to the actions; that the final FWC order was served properly; that even if it was not so served, the contravention is still proved; that knowledge of a respondent of the final FWC order need not be proved to succeed; and, in any event, such knowledge has been proved. 15 In these circumstances, the questions that require resolution in this proceeding may be stated as follows: (1) As to the s 417(1) contravention proceeding: (a) Has the Director proved that each of the respondents, on 28 February 2013, engaged in "industrial action", as defined by the FW Act? (b) If so, did their employer, Crown, authorise or agree to their actions? (2) In relation to the s 421(1) contravention proceeding: (a) Has the Director proved that each of the respondents, on 28 February 2013, engaged in "industrial action" for the purposes of the final FWC order? (b) If so, did their employer, Crown, authorise or agree to their actions? (c) If not, has the Director proved, as alleged, that the final FWC order was served in accordance with [5] of the order? (d) If not, is the failure to prove service in accordance with [5] of the order fatal to the maintenance of the s 421(1) contravention proceeding? (e) If not, is the Director required to prove that each of the respondents had knowledge of the final FWC order, or its substance, and the consequences of non-compliance with it, in order to succeed on the s 421(1) contravention proceeding? (f) If so, has the Director proved such knowledge on the part of each of the respondents?

(a) Has the Director proved that each of the respondents engaged in "industrial action" as defined by the FW Act for the purposes of the s 417(1) contravention proceeding? 16 Section 417(1) and (2) of the FW Act provides as follows: No industrial action (1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which: (a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or (b) a workplace determination comes into operation until its nominal expiry date has passed; whether or not the industrial action relates to a matter dealt with in the agreement or determination. Note: This subsection is a civil remedy provision (see Part 4-1). (2) The persons are: (a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or (b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity. 17 The Director contends, both on the matters admitted by each respondent in their defence and on the evidence adduced at the hearing, that: each respondent is a "person referred to in subsection (2)" because each was an "employee … who is covered by the agreement" as provided for in s 417(2)(a); the relevant "agreement" is the Crown enterprise agreement; and the Crown enterprise agreement was approved by the Fair Work Commission and its nominal expiry date, at material times, had not passed. 18 This contention is correct. 19 What is in issue is whether each respondent engaged in "industrial action" on 28 February 2013. 20 "Industrial action" is given the following meaning by s 19 of the FW Act: 19 Meaning of industrial action (1) Industrial action means action of any of the following kinds: (a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; (b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee; (c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; (d) the lockout of employees from their employment by the employer of the employees. Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining. (2) However, industrial action does not include the following: (a) action by employees that is authorised or agreed to by the employer of the employees; (b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer; (c) action by an employee if: (i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform. (3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts. Note: In this section, employee and employer have their ordinary meanings (see section 11). 21 The Director in this case relies on s 19(1)(c) to establish that the respondents engaged in industrial action on 28 February 2013. 22 The Director alleges that the evidence produced at the hearing of this proceeding establishes, on the balance of probabilities, that each of the respondents failed to attend for work at the site or failed to perform any work at all if they did attend for work. 23 On the face of the evidence adduced on behalf of the Director, the Court finds that each of the respondents, on 28 February 2013, either failed to attend for work at the site or failed to perform any work at all having attended for work at the site. 24 The evidence adduced by the Director, constituting electronic card records of entries and departures from the site at material times on that day, timesheets, payslips and sign on/off sheets inevitably leads to such a finding, on the balance of probabilities: (1) John Holland operated an electronic card system for the purposes of recording the time that each worker engaged at the site entered and exited. A copy of the records of the electronic card reader was produced. The Director, through Mr Chaseling from John Holland, adduced evidence about the operation of the electronic and software systems that generated those records. (2) In light of logical inferences that can be drawn from the content and form of the electronic card records, reinforced by the ancillary oral evidence from Mr Chaseling, those records admissibly evidence representations about those Crown employees that entered and exited the site on 28 February 2013, and the time at which those employees entered and exited. (3) The electronic card records show two types of record relating to the attendance of the Crown employees: (a) those for whom it recorded both a "time in" and a "time out". There are 19 respondents in this category; and (b) those for whom it recorded a "time in" but no "time out". There are eight respondents in this category. (4) Of the 19 respondents for whom a "time out" is recorded, the latest "time out" recorded is 8.16am. It can reasonably be inferred that, from that time, all of those 19 respondents had left the site and performed no further work that day. (5) The Court also readily infers that the eight respondents for whom no "time out" is recorded left the site without correctly swiping the electronic card reader. Although it is therefore not possible to determine, on the basis of the electronic card records, at what time those respondents left the site on 28 February 2013, the strong probability on the available evidence is that they did so at some point soon after the pre-start meeting that morning ended. (6) There are also 49 respondents in relation to whom the electronic card record displays no entry at all. The Court reasonably infers that there is no entry recorded for those respondents for the reason that they did not enter the site at all on 28 February 2013. (7) The timesheets of Crown adduced in evidence are business records to which the hearsay rule does not apply, containing a representation of the time worked in the week ending 5 March 2013 by each employee. There is such a timesheet corresponding to each of the respondents. (8) None of the timesheets record that any of the respondents worked any time on 28 February 2013. (9) The Director acknowledges that some 17 of the timesheets record that the applicable respondent was "sick" on 28 February 2013. However no medical certificate relevant to any of these Crown employees was produced to the Director during the course of its investigation. No affirmative case to that effect has been foreshadowed, or put, in respect of any respondent. (10) The payslips of Crown are, likewise, business records to which the hearsay rule does not apply, containing a representation of the hours which each respondent worked during the pay period ending 5 March 2013. There is such a payslip corresponding to each of the respondents. (11) Each of the payslips shows the number of "normal time" hours worked by the respondent corresponding to that payslip, just as each of the timesheets records the number of "normal time" hours worked by the applicable respondent. (12) In each case, the number of "normal time" hours recorded on the timesheet relating to a given respondent is the same as the "normal time" hours recorded on the payslip relating to that respondent. (13) From this the Court reasonably infers that no respondent worked any "normal time" hours that were not recorded on the timesheet. It would be expected and indeed presumed that any respondent that had worked those hours would have been appropriately paid for that work. (14) Thus the Court comfortably infers that the timesheets accurately record that no respondent performed any work on 28 February 2013. (15) Further, no payslip relating to a respondent records any amount of leave entitlements having been paid to any of the respondents, whether those in relation to whom an entry of "sick" was recorded on the timesheet for 28 February 2013, or any others. (16) From this it can readily be inferred that none of the respondents was on any period of personal leave on 28 February 2013. (17) Finally, the Crown sign on/off sheets for 28 February 2013 constitute a distinct category of business records to which the hearsay rule does not apply, evidencing representations regarding those Crown employees that attended for work on 28 February 2013. 25 The respondents can be divided into four categories depending on the information displayed on the 28 February sign on/off sheet in relation to them: (1) Those whose name is not listed on the 28 February sign on/off sheet. There are two respondents in this category. (2) Those in relation to whom no entry is recorded, and whose name is listed on the 28 February sign on/off sheet. There are 47 respondents in this category. (3) Those in relation to whom a "sign on" time but no "sign off" time is recorded. There are 10 respondents in this category. (4) Those in relation to whom both a "sign on" time and a "sign off" time are recorded. There are 17 respondents in this category. In each instance, the "sign off" time is 11am, except for the 41st respondent, for whom the "sign off" time is 3pm (and the 75th respondent, for whom the "sign off" time is 4pm). 26 Concerning these four categories, the Court accepts the Director's submission that: (1) In relation to those respondents in category (1), no inference can be drawn as to their attendance in reliance on the 28 February sign on/off sheet. (2) In relation to those respondents in category (2), it can be inferred that they did not attend work at all on 28 February 2013. (3) In relation to those respondents in category (3), the electronic card records show that six had left the site by 8.16am, or did not "swipe on" at all. The most likely explanation is that these respondents left the site without performing any work and without "signing off". (4) In relation to those respondents in category (4), viewing the sign on and sign off representations strictly in isolation, an inference might be drawn that they attended work for the hours recorded on the 28 February sign on/off sheet. However, the weight of the competing evidence set out above indicates that such an inference would be an improbable one, as: (a) The electronic card records show that 11 of these respondents had left the site by 8.16am. This is probative of the "sign off" time as reflected in the 28 February sign on/off sheet being inaccurate. (b) The electronic card records contain no record at all for one of these respondents (26th respondent). It can be inferred that he did not attend work at all if he did not swipe on or off at the electronic card reader. (c) The electronic card records reflect no "time out" record for the remaining six respondents. However, the fact that the timesheets and payslips show that these respondents were not paid for any work on 28 February 2013 is strongly probative of them not in fact having performed any work on 28 February 2013. 27 In those circumstances there is a firm and cogent evidentiary basis for the Court to find, on a comfortable balance of probabilities, that in the case of each of the respondents appearing at trial: (1) despite being rostered to attend site and perform work on 28 February 2013, each either did not so attend site, or not perform work as rostered, or both; and (2) accordingly each undertook "industrial action" within the meaning of that term under the FW Act. 28 Each of these respondents not only claimed a penalty privilege in not making any admissions concerning matters alleged against them leading up to the hearing but also chose not to give evidence or adduce any evidence at the hearing (other than by cross-examination of witnesses called by the Director). However, the respondents first submit that it is incumbent on the Director to prove that any action purportedly taken by any respondent on 28 February 2013 had the requisite "industrial character" under s 19 of the FW Act before each respondent could be found to have breached s 417 and, consequently, s 421 of the FW Act; and say this has not been done. 29 As to the requirement of proving an "industrial" character to action taken, the respondents contend as follows: (1) While the definition of industrial action has been relatively stable across the FW Act and predecessor legislation such as the Workplace Relations Act 1996 (Cth) (WR Act), s 19 now includes a legislative note in updated terms. That note, at the conclusion of s 19(1), provides: Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining. (Emphasis added.) (2) In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290; (2004) 133 IR 197, the Full Bench of the Australian Industrial Relations Commission (Full Bench), while acknowledging that "so-called political strikes" had traditionally been captured by the definition of industrial action, said at [46]: It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree. We do not think it is desirable that we go further than is necessary to decide this case. As is clear, we have not found it necessary to go beyond the words of the definition. (Emphasis added.) (3) The insertion of the legislative note in s 19 of the FW Act evinces a clear intention from Parliament that weight be given to the word "industrial" in the definition of industrial action consistent with the comments of the Full Bench. (4) Indeed, the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) explicitly noted at [90] that: The legislative note at the end of subclause 19(1) alerts the reader to the decision of the AIRC in Automotive, Food Metals, Engineering, Printing and Kindred Industries Union v The Age Company Ltd [2004] AIRC 1254. The note is included to clarify that the definition of industrial action is only intended to cover actions that have an industrial character and occur within the area of disputation and bargaining. (Emphasis added). (5) In order to satisfy the Court that industrial action has occurred, as defined by s 19, the Director must demonstrate that the action alleged against the respondents had the requisite industrial character. 30 Section 19(1), including the note, has been set out above. The note, it might be said, is a little unusual in that it seemingly endorses a view that "industrial action" does not include action that "stands completely outside the area of disputation and bargaining". A note may be regarded by the Court when construing the text of an Act. This has not always been the case, but it seems now to be so. See generally the discussion in Pearce & Geddes, Statutory Interpretation in Australia (8th ed, LexisNexis, 2014) at [4.47] and [4.57]. 31 Section 13(1) of the Acts Interpretation Act 1901 (Cth) makes it plain that all material from and including the first section of the Act to the end of the last section of the Act, where there are no schedules, or to the last schedule of the Act, where there are schedules, "is part of the Act". I accept, however, as stated in Pearce & Geddes at [4.57], that the fact that a note is given the status of a part of the Act does not mean that the note can govern the text of the Act. See Re News Corp Ltd (1987) 15 FCR 227 at 240 (Bowen CJ). But it cannot be disregarded. See Shuster v Minister for Immigration and Citizenship (2008) 167 FCR 186 at [11]; [2008] FCA 215. See also Westpac Banking Corporation v Australian Securities and Investments Commission (2009) 181 FCR 379 at [24]; [2009] FCA 1506, and the recent decision of the Full Court dealing with the note in s 19 of the FW Act, to similar effect, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 320 ALR 61 at [118]; [2015] FCAFC 25. 32 In BHP Coal at [120], the Full Court added that, ultimately, the question posed by s 19(1) of the FW Act is whether action can be said to be "industrial" in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is "industrial", but it is not determinative. 33 I am guided by these authorities and, in particular, the recent decision of the Full Court in BHP Coal. 34 In the view of the Court there is nothing in the circumstances of this case to suggest that the pleaded action of the respondents in failing to attend for work or in failing to perform work where they did, is not industrial in character. There is no evidence to suggest, for example, that what they did stood completely outside the area of disputation and bargaining. The evidence of Mr Chaseling and Ms Hale, concerning the events at about 6.35am on 28 February 2013, provides some of the relevant context for characterisation purposes. Their evidence shows that when Mr Waters of the CFMEU raised a question of employees being docked four hours pay by reason of being late to commence work that morning, and was not responded to satisfactorily by Mr Chaseling, so far as he was concerned, at least some of the respondents' actions complained of followed. 35 To the extent that some of the respondents, by inference, either did not return to work following the 6.35am exchange between Mr Chaseling and Mr Waters, or returned to work but then left having regard to that exchange, or because of a rally or march due to take place later in the day, plainly the action taken had an industrial character to it. It was about wages or, to the extent that other respondents chose to attend a political rally that day, or a march organised by the CFMEU as suggested by an entry in the site diary kept by Mr Ross Smith of Crown (see annexure CRS-7 to the affidavit of Mr Stanley), then the actions were also industrial in character. They were, in effect, about pay and conditions of work. 36 To the extent that records show that a number of respondents had reported in "sick" on 28 February 2013, given the number who did and all the other circumstances adverted to, including the fact that a political rally and a march were organised for that day, I would infer that the "sick" notifications are not to be treated as accurate representations of the health of each of the respondents concerned. I accept the submission made on behalf of the Director that no medical certificates have been located, in the course of a comprehensive investigation conducted by the Director, in respect of such non-attendances at work, something which tends to confirm this finding; and none have been produced by any respondent. 37 While, on behalf of the respondents, it is suggested that it was open to the Director to call representatives of Crown, such as Mr Ruggiero Antonio Ambrosino and Mr Ross Smith, to clarify the circumstances in which employees of Crown left work or did not attend work at the site on 28 February 2013, I do not consider that any particular inference should be drawn from the Director's failure to do so. 38 In my view, the evidence adduced is sufficient and adequate to enable the Court to draw the reasonable inference that the failure of each of the respondents either to attend work or, having attended work, not to remain at work, was industrial action in that it was action of an industrial character. 39 The respondents then submit that the evidence adduced by the Director, by reference to the four categories of documents, is an inadequate or insufficient basis upon which to infer that industrial action, as alleged, occurred. The challenge to this evidence variously suggests inconsistencies in records or other possible explanations for absences or departures from work and the like. One challenge is based on the allegation made in [12] of the Director's statement of claim, that the respondents were to start work at 6.30am. While accepting that Mr Chaseling in his affidavit at [16] gave evidence to that effect, attention is also drawn to what he said at [28], that the workers were rostered to finish work at 3-5pm. It is further submitted that Mr Chaseling could not say what the arrangements were between Crown and its employees as Mr Chaseling was from John Holland. Thus, it is submitted, the Court should not be satisfied as to when the respondents arrived or left. The respondents say that no representative such as Mr Ambrosino or Mr Smith from Crown was called, when they could easily have been to clarify these matters. 40 I accept, however, the submissions made on behalf of the Director that there was no particular reason why representatives of Crown were required, especially in circumstances where the evidence otherwise is sufficient to make out the industrial action alleged. I generally accept that is so. 41 On the evidence adduced, I am satisfied, particularly on the basis of the evidence of Mr Chaseling referred to at [16] of his affidavit, and the documentary evidence referred to above, that Crown employees were to start at 6.30am that day. Apart from anything else, there is the evidence of the pre-start meeting prior to 6.30am which went over 6.30am and gave rise to the exchange, noted above, between Mr Waters and Mr Chaseling at about 6.35am. That is all probative of a 6.30am start by relevant employees of Crown. 42 The respondents further challenge the efficacy of the four categories of documents adduced into evidence as business records, again alleging that no one was called from Crown to explain the Crown documents. In my view, there was no particular reason why they needed to be, in the circumstances of the proceeding. The electronic card records, timesheets, payslips, and sign on/off sheets of Crown all relevantly speak for themselves. A representative of Crown may have been able to provide additional context but, in the circumstances, the representations conveyed by those business records are, in my view, as set out in the table provided by the Director as an aid to its submissions. 43 The respondents also challenge the efficacy of the electronic card reader information. The respondents suggested that the evidence showed that it was possible for persons to enter and leave via a gate used by persons entering the site with bicycles without recording their entry or exit, and that there was a degree of unreliability of the records. In the Court's judgement, the electronic card reader information does not suffer from any integrity issues. It reflects data produced by an electronic entry and exit system, appears to produce consistency in the information provided and there is no reason to think that the representations that are conveyed by that data lack integrity and cannot be relied on for the purpose of drawing reasonable inferences. 44 I have already dealt with above the question whether the timesheets, when they indicate that some respondents may have been "sick", may be considered to provide a relevant alternative hypothesis to the inference contended for by the Director. In my view, in all of the circumstances explained above, the "sick" entries are not plausible. There is no evidence that medical certificates to authenticate the claims were ever produced; and indeed the payslips show that no sick leave covering 28 February 2013 was granted to the respondents or adjustments made to pay by reason of such health circumstances. 45 As to the sign on/off sheets, the respondents suggested that in some instances, for example in the case of the 14th, 17th and 25th respondents, the relevant respondent is shown as having signed in, but is not shown as present on the electronic card reader data. 46 I accept the Director's submission, however, that when one takes account of all the documentary evidence, the reasonable inference can, and should, be drawn that each of these respondents engaged in industrial action as alleged. 47 On behalf of the respondents it is also submitted that, having regard to the dicta in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34 (Dixon J as he then was) and Lithgow City Council v Jackson (2011) 244 CLR 352 at [94]; [2011] HCA 36 (Crennan J), the Court cannot reasonably be satisfied in this case that the contravention allegations have been made out and should consider that to draw any inferences would effectively amount to conjecture. 48 The so called Briginshaw standard is reflected in s 140 of the Evidence Act 1995 (Cth), which provides: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject‑matter of the proceeding; and (c) the gravity of the matters alleged. In this case, the Court takes into account the nature of the cause of action, being a civil penalty contravention proceeding, the nature of the subject matter of the proceeding, being a question whether industrial action was engaged in contrary to s 417(1) of the FW Act, and generally the gravity of the matters alleged, in that each of the respondents, if found to have contravened that provision, may be liable to civil pecuniary penalties. Having done so, the Court is nonetheless satisfied that the Director has proved the case alleged on the balance of probabilities. The inferences contended for on behalf of the Director are reasonable inferences and should be drawn. These inferences do not constitute conjecture because other, equally probable or reasonable inferences are not open. 49 The evidence taken as a whole supports the finding that, on the balance of probabilities, the respondents engaged in industrial action on 28 February 2013, at a time when they were prohibited from doing so by s 417(1) of the FW Act.

(b) Did Crown authorise the industrial action engaged in for the purposes of the s 417(1) contravention proceeding? 50 Section 19(2)(a) provides that industrial action does not include action by employees that is authorised or agreed to by the employer of the employees. 51 The respondents say they had Crown's authorisation or agreement to do what they did on 28 February 2013, and so they say the answer to this question, on the evidence, is yes. 52 The respondents, in particular, place emphasis on the part of the diary note apparently made by Mr Smith, on 28 February 2013, referred to above, which states that "March also booked by CFMEU @ 10.30". 53 At best that note is ambiguous. 54 Elsewhere on that same page, both before it and after it, are, respectively, the following handwritten entries also apparently made by Mr Smith: Strike due to meeting called by CFMEU before work - ran over by approx 5 minutes, Matt Waters asked JH if blokes would be docked was told not up to JH so blokes went Strike 55 This is the only evidence upon which the respondents suggest that the employer of the respondents, Crown, authorised or agreed to the relevant action by employees. 56 I am not satisfied in these circumstances that the Court may reasonably infer that the industrial action, which has otherwise been proved by the Director, was action by employees that was authorised or agreed to by the employer of those employees, for the purposes of s 19(2)(a) of the FW Act. Not only is the entry relied upon by the respondents ambiguous as to whether Crown authorised or agreed to the actions of the respondents proved by the evidence, which is not confined to a march at 10.30am, but it is contradicted, in my view, by the above entries that precede and follow it.

2. In relation to the s 421(1) contravention proceeding:

(a) Has the Director proved that each of the respondents engaged in "industrial action" for the purposes of the s 421(1) contravention proceeding? 57 Section 421(1) of the FW Act provides as follows: (1) A person to whom an order under section 418, 419 or 420 applies must not contravene a term of the order. Note: This subsection is a civil remedy provision (see Part 4‑1). 58 As noted above, it is an admitted fact that a final FWC order was made on 19 February 2013. That final FWC order was made by a Deputy President of the FWC. 59 For the same reasons given above in relation to my finding that the Director has proved that each of the respondents engaged in industrial action for the purposes of the s 417(1) contravention proceeding, the Court concludes that each of the respondents also engaged in "industrial action" for the purposes of the s 421(1) contravention proceeding. 60 The terms of the final FWC order, by [3.3], provided that the Crown employees must not engage in or threaten to engage in any industrial action at the New Children's Hospital project site. At [4], the final FWC order contained a definition of "industrial action" which was in substantially the same terms as the s 19 definition, as it applies to an employee. 61 While that definition in the order did not contain a note of the type that appears at the end of s 19(1) of the FW Act, the term "industrial action" employed in the order should nonetheless be understood to mean an action that has an industrial character. 62 For the reasons given above, the action complained of for the purposes of the s 417(1) contravention proceeding is the same action that is complained of for the purposes of the s 421(1) contravention proceeding and the Court finds that the case made in that regard by the Director has been proved.

(b) Did Crown authorise or agree to the industrial action? 63 For the reasons given in relation to question (1)(b) above, the answer is no.

(c) Was the final FWC order served in accordance with [5] of the order? 64 Paragraph [5] of the final FWC order was in the following terms: 5. SERVICE OF ORDER 5.1 Service of this Order upon the parties (for the avoidance of doubt, the Employees and the CFMEU) to whom it applies may be effected by: (a) a copy is sent by facsimile transmission or email to the National Secretary of the CFMEU; and (b) a copy is sent by facsimile transmission or email to the State Secretary of the CFMEU; and (c) a copy is posted on one or more notice boards at the New Children's Hospital Project site. 65 It may also be noted that publication of the order by the CFMEU was required by [6] of the order, which provided: 6. PUBLICATION OF ORDER (a) By 7:00am on Wednesday, 20 February 2013, the CFMEU must make all reasonable efforts to repost this Order in a prominent position in the 'News' section on its website at http://www.cfmeuwa.com; and (b) The CFMEU must publish this Order in the next newsletter published by the Construction and General Division of the CFMEU immediately after the date of this Order. 66 The respondents submit that by [5.1] the order was required to be served by each of the means described in subparas (a), (b) and (c). They emphasise that this requirement must follow from the fact that the requirements in (b) and (c) are, in each case, additional to the requirement in (a), in that the conjunctional expression "and" connects each of the subparagraphs of [5.1]. 67 The Director, however, submits that [5.1] should not be so construed and that each of (a), (b) and (c) imposes a separate or discrete obligation. In particular, the Director submits subpara (c) is designed to give notice to the Crown employees, whereas subparas (a) and (b) are designed to ensure the CFMEU has notice. 68 In my view, on its proper construction, [5.1], by the methods of service required in (a)-(c), is intended to achieve service "upon the parties" as a whole. As stated in parenthesis in the first two lines of [5.1], the parties "for the avoidance of doubt" are "the Employees and the CFMEU". 69 In the view of the Court, it is not appropriate to single out subpara (c) of [5.1] as being the only part of the service requirement that is relevant so far as the Crown employees - the respondents - are concerned. 70 It may reasonably be concluded that the Deputy President of the FWC, in making the final FWC order, was concerned that the parties collectively, by those various means, be given notice that the order had been made. The three methods of providing that notification are calculated to ensure that not only the CFMEU, but also its members - including the respondents - had the best chance of being so notified. It cannot reasonably be concluded that the method of service referred to in subpara (c) was the only means of service designed to ensure that the Crown employees were give notice and that it was open to John Holland, who obtained the order, to choose the method of service of that notice on the Crown employees. 71 In my view, my preferred construction of [5.1] of the order is supported by the terms of [6] in that the Deputy President was also concerned to ensure that the CFMEU published the order on its website and in its newsletter. That plainly was for the purpose of ensuring that its members - persons such as the respondents - became aware of the order. 72 The Director concedes that, in the event the Court was to construe the requirements of [5.1] in the way that it has, it has failed to prove that the final FWC order was served in compliance with [5.1]. Indeed, there is no evidence to show that the methods of service referred to in (a) and (b) were adopted. 73 To the extent that the Director suggests that because service of the order "may" be effected by those three means, it could be effected by any one of those means, for the reasons given above, I reject that submission. In the context in which the word "may" was here employed, it was included to facilitate service by the particular means identified rather than some other means that may have been required or permitted by the Fair Work Australia Rules 2010 (Cth). 74 To the extent that the Director may also intend to suggest that the mode of service provided for by subparas (a)-(c) of [5.1] was an optional or discretionary mode of service, and that some other lawful means of service was provided for either by the FW Act, the Rules or the general law (such as s 28A of the Acts Interpretation Act) then there is no evidence that the final FWC order was served by any other such means. 75 The Court finds that the final FWC order was not served in compliance with [5.1] of the order.

(d) Is the failure to serve the order as provided for by [5] of the final FWC order fatal to the success of the s 421(1) contravention proceeding? 76 The Director submits that even if the Court was to find that the service requirement at [5.1] of the final FWC order was not complied with, that is irrelevant to the entitlement of the Director to maintain the s 421(1) contravention proceeding and to prove contravention of s 421(1). The Director in effect contends that s 421(1) must be strictly construed, having regard also to the terms of s 418, and that a term of the order made under s 418 has been contravened by each respondent. 77 The Director submits, in effect, that the Court need only have regard to that term of the order that prohibited industrial action, namely [3.3], in determining whether s 421(1) may be invoked in this case, and need not be concerned with whether notice of the order had been given to the respondents. 78 Section 418 provides that: 418 FWC must order that industrial action by employees or employers stop etc. (1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action: (a) is happening; or (b) is threatened, impending or probable; or (c) is being organised; the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order. Note: For interim orders, see section 420. (2) The FWC may make the order: (a) on its own initiative; or (b) on application by either of the following: (i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action; (ii) an organisation of which a person referred to in subparagraph (i) is a member. (3) In making the order, the FWC does not have to specify the particular industrial action. (4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action: (a) some or all of which has not been taken before the beginning of the stop period specified in the order; or (b) which has not ended before the beginning of that stop period; or (c) beyond that stop period; the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot. 79 While the FWC may make the type of stop order provided for by s 418 on the FWC's own initiative (subs (2)(a)) it may also be made on the application of a person who is affected (whether directly or indirectly) or who is likely to be so affected by the industrial action that is happening or threatened, impending or probable or is being organised (subs (2)(b)(i)). It appears that, in this case, the stop order was obtained at the instance of John Holland and Crown. 80 In this case, the final FWC order, as noted, required service in the ways stipulated in [5], as well as publication as required by [6]. 81 The Director accepts that the FWC had the power to require service of the order on the parties in the terms of [5] and publication of it in the terms of [6] of the final FWC order, pursuant to a power to order what is necessary, incidental to, or consequential upon, the exercise of the primary power to make a stop order, and in this regard refers to Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108 at [37]; [2008] FCAFC 26 (Gray and North JJ). 82 The Director also notes that s 609(1) and (2)(e) of the FW Act relevantly provide for the FWC to make procedural rules in relation to the conduct of matters before it, which must be read with R 9 of the Rules, which provides for how service may be effected. 83 The Director acknowledges that it may be debated whether R 9 (mentioned below) covers [5] of the final FWC order now the subject of this proceeding. 84 The Director also submits that these provisions are to be construed and applied in light of s 28A of the Acts Interpretation Act, which provides that: (1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression 'serve', 'give' or 'send' or any other expression is used, then the document may be served: (a) on a natural person: (i) by delivering it to the person personally; or (ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or (b) on a body corporate - by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate. Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication. (2) Nothing in subsection (1): (a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or (b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection. 85 The Director notes that Fair Work Australia or "FWA" was renamed the Fair Work Commission or "FWC" by Sch 9, Pt 1, cl 1 of the Fair Work Amendment Act 2012 (Cth) which commenced on 1 January 2013. 86 The respondents contend that the contravention proceeding must fail: (1) because the final FWC order was not served in accordance with [5.1]; or, (2) because the Director has failed to prove that the respondents had knowledge of the final FWC order or its substance, in any event, and the consequences of non-compliance with it. 87 They also note that under s 576(1)(j) of the FW Act, the FWC has conferred on it the functions detailed in Pt 3-3 (industrial action) of the FW Act, which includes the power to make an order for industrial action to stop or not occur under s 418(1). 88 They submit the FWC's functions must be performed and its powers exercised according to the principles detailed in s 577 of the FW Act. In particular, the FWC must perform its functions and exercise its powers in a manner that is "fair and just"; and that pursuant to s 578 the FWC must also take into account the objects of the FW Act and equity, good conscience and the merits of the matter. 89 The respondents submit the exercise of any powers incidental to or consequential upon the exercise of the powers explicitly granted under the FW Act must also be subject to these conditions. 90 The respondents submit that a finding that a decision of the FWC was not fair and just may indicate error on the part of the FWC and provide grounds on which to quash the decision. See Warrell v Walton (2013) 233 IR 335 at [27]; [2013] FCA 291(Flick J). 91 The respondents submit these observations are relevant to determining whether the final FWC order was defective for the purposes of enforcement under s 421(1), as they submit it is. 92 As to usual service requirements in the FWC, the Court notes that, at material times, the Rules made provision for the use of forms, the lodging of documents and the service of documents. The Rules, while they refer to "Fair Work Australia" are accepted by the Director as having been relevant to proceedings at material times in the FWC. In that regard, s 575(1) of the FW Act provides that the body known immediately before the commencement of that subsection as Fair Work Australia continued in existence as the Fair Work Commission. 93 Rule 8 of the Rules relevantly provided, at material times: 8. Requirement to serve documents lodged with FWA 8.1 A person who makes an application or gives a notice to FWA must serve a copy of the application or notice in accordance with the instructions as to service on the form for the application or notice. 8.2 If an application is made using Form F1, the applicant may seek directions from FWA as to the service that is required. 94 Rule 9 provided direction as to "how service is effected", and R 9.2 included various modes of service including personal service, tendering the document to an individual and posting the document in a pre-paid envelope sent by registered post to the residence of the individual. 95 Rule 10 relevantly made provision for forms of substituted service. 96 The Rules further provided, at the time the final FWC order was made, for an "Application for an Order to Stop etc. (Unprotected) Industrial Action" to be filed in accordance with Form F14. That form specified the following "service requirements": This application must be served on any person who will be bound by the orders sought as soon as is practicable after it is lodged with the FWA. Note: Rules 9 and 10 deal with service. It is open to an applicant to seek an order for substituted service (see rule 10) to avoid the need to individually serve employees who would be bound by the order(s) sought. 97 No party to this proceeding adduced any evidence as to whether or not the application for a stop order in this case that led, first, to the interim order made by the FWC and then, later, to the final FWC order on 19 February 2013, complied with the service requirements specified on the Form F14. 98 In these circumstances, the Court is unable to say whether the service requirement was met; but assumes it was, no party suggesting to the contrary or taking the point. 99 It might be said, however, that these service requirements of the Rules were, at material times, calculated to ensure that a person who might be bound by a stop order of the FWC had the opportunity, in the first instance, to make representations and to be heard by the FWC before any order, including an interim order and a final order, was made. 100 It would seem possible therefore to argue that the FW Act, when read with the relevant rules concerning the making of a Form F14 application for stop order, and the attendant service requirements on the filing of the application, is calculated to ensure a potentially affected party, such as each of the respondents in this case, is accorded natural justice or procedural fairness in general law terms. 101 For my part, the final FWC order having provided for service in a prescribed way, it was incumbent on the successful applicant to serve the order as required. In this case the failure to serve the order in accordance with [5] means that it is not open to conclude the order was contravened. The terms of [3] of the order proscribed industrial action by the respondents, but that must be read with [5] - that is to say, the proscription of each action was dependant on service of the order in accordance with [5] - which did not occur. 102 In my view, the question concerning the effect of the final FWC order not being served in accordance with the requirements of [5] is to be resolved by having regard to the proper construction of the order as a whole. 103 There can be little doubt, as the Director submits, that the FWC had the power to specify the service requirements set out in [5] of the final FWC order. 104 As submitted by the Director, the conferral of the power to make a stop order does not deprive the FWC of the statutory capacity to exercise an accompanying power to do what is necessary for, incidental to, or consequential upon the exercise of the primary power granted. See Transport Workers' Union at [37]-[38]. 105 Indeed in Transport Workers' Union, which dealt with the making of a stop order under the former WR Act, Gray and North JJ, in a joint judgment, emphasised the importance of persons to be affected by the making of a stop order and who may be liable to penal consequences for not complying with it, as a matter of procedural fairness, being given notice of the order. At [43], their Honours observed: In particular, the interests of each individual employee against whom it is proposed to make an order assume greater importance in the light of the availability of civil penal consequences for failure to comply with the order. This appears to bring into play the general principle that the exercise of a statutory power is impliedly conditioned on affording procedural fairness to a person whose interests are likely to be affected by the exercise of the power. 106 Their Honours also concluded, at [46], that the obligation to provide procedural fairness was not met by assuming that those individual interests were adequately represented by the participation of a union of which those persons are members in a hearing. 107 These observations of the Full Court emphasise why it is important for the FWC to mandate the mode of service of such an important stop order affecting, as it may, the interests of individual employees. 108 In my view, not only was the FWC empowered to make the service order in [5] but the making of that order supplanted any other means by which service of a document might have been effected, either under the Rules as they then applied, or under a provision such as s 28A of the Acts Interpretation Act, to which the Director makes reference. 109 I also consider that in these circumstances, the relevant stop order, being the final FWC order which is the subject of the s 421(1) contravention proceeding, must be construed to include [5] of the order, such that there can be no contravention of the stop order if it has not been served as ordered by the FWC. 110 In these circumstances, the failure to serve the final FWC order in accordance with the requirements of [5] of that order means that any civil proceeding alleging contravention of the final FWC order was bound to fail. 111 It follows that the failure to serve the final FWC order in accordance with [5] of that order is fatal to the successful prosecution of the current proceeding against the respondents under s 421(1) of the FW Act.

(e) Is the Director required to prove the respondents' knowledge of the final FWC order? 112 In these circumstances, there is no need to further consider the respondents' more general contention that the Director must prove the respondents knew about the final FWC order and a related submission as to knowledge of the consequences that would flow from any breach of that order.

(f) Has such knowledge been proved? 113 It also follows that it is also unnecessary to answer this question.

Conclusion and orders 114 For the reasons given above: (1) The Court finds each of the respondents (not including the 31st and the 75th respondents) contravened s 417(1) of the FW Act as alleged. (2) The Court finds that the proceeding insofar as it alleges contravention of s 421(1) of the FW Act by each of the respondents should be dismissed. 115 The Court will hear from the parties in relation to the question of penalty for the contraventions of s 417(1) so found and the terms of any final orders. I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.