(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.