Director of the Fair Work Building Industry Inspectorate v Construction,... [2014] FCA 1373 | Case summary

REASONS FOR JUDGMENT 1 This application is brought under s 49 of the Building and Construction Industry Improvement Act 2005 (Cth) ("the Act") for alleged contraventions of ss 38 and 43 of that Act by the respondents at the "Yarra's Edge" Tower 8 complex, a high rise residential apartment construction project ("the project") at 1 Point Park Crescent, Docklands, Victoria ("the site"). 2 The applicant is the Director of the Fair Work Building Industry Inspectorate. The first respondent, the Construction, Forestry, Mining and Energy Union ("the CFMEU") is a trade union registered as an organisation pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). The second respondent, Bill Oliver ("Oliver") was, at relevant times, the secretary of the Victorian branch of the Construction and General Division of the CFMEU. The remaining respondents, Elias Spernovasilis, Shaun Reardon, Derek Christopher, Billy Beattie and Theo Theodorou were employed by the CFMEU as organisers in that branch. 3 By a contract made on 26 November 2010, Mirvac Constructions (Vic) Pty Ltd ("Mirvac") engaged Grocon Constructors (Victoria) Pty Ltd ("Grocon") to build the project. Grocon engaged Select Cranes and Rigging Pty Ltd ("Select Cranes") to erect the tower crane that would be used on the project. By 17 February 2011, the base upon which the tower crane would be located had been constructed. On that day, the first sections of the tower crane were to be delivered to the site. The employees of Select Cranes and Grocon who were to be involved in the erection of the crane had been inducted and were on site ready to work. At about 11:25 am on that day, a Select Cranes mobile crane, which would be used in the erection of the tower crane, arrived at one of the gates, Gate 10, at the site. 4 At this point, a man wearing a black T-shirt bearing the letters "CFMEU" spoke to the driver of the mobile crane, following which the crane was taken away from Gate 10 and parked in a side street nearby where semi-trailers carrying the tower crane sections were also waiting for entry to the site. The man in the black T-shirt was not alone at Gate 10: he was in the company of a number of other similarly clad men, amongst whom were the respondents Spernovasilis, Reardon, Christopher and Beattie. It is to be inferred that (1) it was their intention to prevail upon the driver of the mobile crane not to bring the crane through Gate 10 and on to the site, and (2) the driver was prepared to act conformably with that intention. A director of Select Cranes, who was present, refused to instruct his driver to make any further attempt to bring the mobile crane on to the site. It is to be inferred that he, like his driver, was prepared to act conformably with the apparent intention of the men in black T-shirts. 5 Inquiries made by representatives of Grocon of representatives of Mirvac as to the nature of the problem which was, evidently, preventing the mobile crane from entering the site produced responses which, while described in the evidence in some detail, may be sufficiently summarised as inconclusive and unhelpful. Notwithstanding that, at about 1:50 pm Mirvac gave Grocon a written direction to proceed with the erection of the tower crane without delay. 6 At about 3:30 pm, a Grocon manager, Andrew Brinzi, arrived at Gate 3 at the site driving Grocon's own mobile crane. The respondents Reardon and Spernovasilis were standing at that gate, and they were soon joined by Christopher, Beattie and others. Reardon and another man secured the gate in the closed position using a piece of scrap metal. Brinzi told these men to get out of the way, and tooted his horn, but the men would not allow him to pass through Gate 3. After a pause of about 15-30 minutes, Brinzi again attempted to move the mobile crane on to the site, but Spernovasilis, Reardon, Beattie and others present blocked the way. 7 At about 4:20 pm, at the direction of a site representative of Mirvac, Brinzi drove the Grocon mobile crane to Gate 10 at the site. By the time he arrived there, Spernovasilis, Reardon, Beattie and others had made their way there from Gate 3, and closed and locked Gate 10 too. Grocon's entreaties to Mirvac to unlock this gate were met with responses which were, to say the least, unhelpful, but nothing turns on the detail of them. The fact is that the gate had been locked by the respondents referred to and others, and remained locked. 8 That remained the position at the end of the working day on 17 February 2011: Grocon was prevented from bringing the required mobile crane - either Select Cranes' or its own - on to the site. 9 When he learned of the problems which Grocon was encountering bringing the Select Cranes mobile crane on to the site on 17 February 2011, Grocon's employee relations manager, John Van Camp, telephoned the National Secretary of the Construction Division of the CFMEU, and was later called back by the respondent Oliver. Van Camp asked Oliver what was the reason for the picket line at the site. Oliver replied that it was "about [the] four man crane crew", and that the CFMEU did not want Grocon's "roving representatives coming onto this project". Van Camp indicated to Oliver that he was "happy to sit down and have discussions about these issues" and that Grocon "would like the picket line to disappear". Oliver's reply was that such discussions were "not going to happen". Oliver informed Van Camp that the respondent Spernovasilis, the CFMEU organiser who was responsible for the Docklands area, wanted to have a dialogue about these issues, but was not prepared to have the picket lifted while discussions were being arranged. 10 As Van Camp explained in his evidence, in Grocon's practice, a tower crane is normally manned by a crew of three, a crane driver and two dogmen. The CFMEU took the position that a crew of four should be employed on a tower crane. Grocon had not accepted that position. This manning issue was the first of the two reasons given by Oliver for the imposition of the picket at the site. 11 The second reason related to the representation of Grocon's employees working on the project. The industrial agreement between Grocon and the CFMEU - which, I infer, was applicable generally to Grocon's operations and not just at the project - contained the following provision: An employee representative shall, upon notification to the company, be recognised as the accredited representative of the employees and, if an employee seeks representation by the representative, that representative will be allowed all necessary time during working hours to submit to the company employment related matters affecting the employees he/she represents. At all other times the employee representative will perform productive work within his/her range of qualifications and competence. Further, the employee representative shall be allowed reasonable time during working hours to attend to such job matters affecting the employees. Prior to dismissal or transfer of an employee representative two days written notice shall be given to the employee representative. Payment in lieu of notice shall not be given. In the event of a dispute about the decision of the company to transfer or dismiss an employee representative, the matter will be dealt with in accordance with the dispute settlement procedure of this agreement. It seems to have been anticipated, when this agreement was negotiated, that the representational activities of such an employee would, or at least might, occupy a substantial amount of his or her time, as the agreement also provided for the representative to be supplied, by Grocon, with facilities for the purpose, including a fixed telephone, table and chairs, a filing cabinet, air conditioning and heating, access to stationery and other administrative facilities and a private lockable area. 12 It seems to have been the practice of Grocon's employees - a practice seemingly encouraged and facilitated by Grocon itself - to have their representatives appointed, and acting, as such with respect to different construction sites at which Grocon was, at any one time, engaged. Thus the one representative would commonly have responsibility to act as such at a number of sites. This is what Oliver meant when he referred to "roving representatives". In contradistinction to that, what the CFMEU wanted was for the representative of Grocon's employees to be someone nominated by the CFMEU, not necessarily an employee of Grocon at all. In this particular instance at the project, the CFMEU proposed that an employee of Mirvac, also engaged at the site, should be the representative of Grocon's employees. This difference of approach as between Grocon and the CFMEU was the second reason for the picket at the site on 17 February 2011. 13 Returning to the goings-on at the site as such, some time after 7:00 am on 18 February 2011 Brinzi arrived at Gate 3 in the Grocon mobile crane. He drove the crane towards the gate, but there were about 16 people, including Reardon, Beattie, Christopher and Theodorou, blocking his way. They remained in place notwithstanding Brinzi tooting his horn. That remained the situation for the remainder of that day, until the events to which I next refer. 14 After the conclusion of work at the site that day, and after those who had blocked Brinzi's access to the site had departed, Grocon prevailed upon the site representatives of Mirvac to re-open Gate 3. Brinzi then drove the mobile crane through the gate and on to the site. There followed an unseemly interchange between representatives of Grocon and representatives of Mirvac on the subject whether the former would be permitted to place the mobile crane in the position from which it would operate in the erection of the tower crane, but ultimately the Grocon view prevailed and the mobile crane was placed in that position. 15 At about 8:30 am on 19 February 2011 (a Saturday), a Grocon riggers' truck arrived near the site adjacent to Gate 3. This truck carried equipment which was to be used in the erection of the tower crane. Brinzi attempted to drive the truck on to the site by way of Gate 3. However, his path was blocked by a group which included Theodorou, Spernovasilis, Reardon, Christopher and Beattie. Brinzi asked them if he was allowed to bring the truck on to the site, and was told, "no chance". He reversed the truck away from the entrance, and parked it nearby. 16 At about 10:00 am, a Select Cranes semi-trailer carrying tower crane sections arrived at Gate 3. The group referred to in the previous paragraph ensured that the gate was shut, blocking the entrance. The driver of this semi-trailer told a Grocon representative that he was "not getting involved". 17 At about 12:30 pm, the Grocon employees who were present to carry out work on the erection of the tower crane were stood down, and no further attempt was made that day to bring any Grocon or Select Cranes vehicle on to the site. 18 On the morning of 21 February 2011, Brinzi again drove the riggers' truck towards Gate 3, but his path was again blocked by a group of about eight or ten persons, none of whom was identified in the evidence. Brinzi then removed the truck from the vicinity. 19 On the same day, Grocon instituted a proceeding in the Supreme Court of Victoria in which it sought an interlocutory injunction preventing the CFMEU and its organisers from continuing the picket at the site. An injunction to that effect was granted on 22 February 2011. 20 In a conference held on 25 February 2011, the dispute which had led to the picketing at the site was, at least for the time being, resolved. 21 The tower crane was erected at the site without incident on Saturday 26 February 2011. 22 It is alleged by the applicant that, by their conduct over the period 17-21 February 2011, the respondents Spernovasilis, Reardon, Christopher, Beattie and Theodorou: (a) imposed a ban, restriction or limitation on the performance of tower crane erection work at the site; and (b) organised or took action with intent to coerce Grocon or Mirvac: • to run the tower crane activities with a crew of four, thereby employing or engaging an additional worker on that crew; • not to allocate the employee representative responsibility on the site to Grocon's "roving representative"; • to allocate the employee representative responsibility on the site to CFMEU-preferred persons; • to designate to CFMEU-preferred persons the duties and responsibilities of employee representative on the site. As will be apparent shortly, in these allegations, category (a) invokes what was s 38, and category (b) invokes what was s 43, of the Act. 23 Consideration of these allegations requires, in the first instance, a tabulation of the respondents who, by their participation in activities at Gate 3 or Gate 10, and either by inferred persuasion or direct interference, prevented the admission to the site of machinery or components necessary for the erection of the tower crane. On the findings I have made above, that tabulation is as follows: Respondent Dates Spernovasilis 17, 19 Feb Reardon 17, 18, 19 Feb Christopher 17, 18, 19 Feb Beattie 17, 18, 19 Feb Theodorou 18, 19 Feb

On the other day 21 February 2011, I am not satisfied that these individual respondents, or any of them, took action of the kind referred to. 24 The next question is whether the activities of the relevant respondents at Gate 3 and Gate 10 amounted to contraventions of s 38 or s 43 of the Act. 25 Section 38 of the Act provided that "[a] person must not engage in unlawful industrial action". "Unlawful industrial action" was defined in s 37 of the Act as "building industrial action" which was "industrially motivated" and "constitutionally connected", and which was not "excluded action". None of those qualifiers is presently relevant. The only controversy relates to the question whether the action taken by the respondents at the gates to the site was "building industrial action". 26 With certain presently irrelevant exclusions, that term was defined in s 36 of the Act as: (a) the performance of building work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to building work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where: (i) the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute (within the meaning of subsection (4)); or (b) a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or (c) a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, that is adopted in connection with an industrial dispute (within the meaning of subsection (4)); or (d) a failure or refusal by persons to attend for building work or a failure or refusal to perform any work at all by persons who attend for building work …. Only paras (b) and (c) of this definition are relevant to the issues in the present case. 27 "Building work" was defined in s 5 of the Act in terms which included the following: (a) the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent; … (d) any operation that is part of, or is preparatory to, or is for rendering complete, work covered by paragraph (a), (b) or (c), for example: (i) site clearance, earth moving, excavation, tunnelling and boring; (ii) the laying of foundations; (iii) the erection, maintenance or dismantling of scaffolding; (iv) the prefabrication of made to order components to form part of any building, structure or works, whether carried out on site or off site; (v) site restoration, landscaping and the provision of roadways and other access works …. 28 For the purposes of the definition of "building industrial action" in s 36 of the Act, "industrial dispute" was defined in subs (4) thereof to mean: (a) an industrial dispute (including a threatened, impending or probable industrial dispute) that is about matters pertaining to the relationship between employers and employees; or (b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a); or (c) a dispute arising between 2 or more industrial associations, or within an industrial association, as to the rights, status or functions of members of the associations or association in relation to the employment of those members; or (d) a dispute arising between employers and employees, or between members of different industrial associations, as to the demarcation of functions of employees or classes of employees; or (e) a dispute about the representation of the industrial interests of employees by an industrial association of employees. 29 The questions which arise under s 38 are: 1. whether the conduct of the respondents amounted to a ban, limitation or restriction on the performance of building work; and 2. if so, whether: (a) the building work, if performed, accepted or made the subject of an offer, was or would have been done in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or (b) the ban etc was adopted in connection with an industrial dispute. 30 In the applicant's case, the "work" upon the performance of which there was a ban, limitation or restriction was the work involved in the erection of the tower crane. For these purposes, the applicant did not rely on the work of the driver of the truck carrying the tower crane sections as the relevant "work". He did, however, rely on the work of the driver of the original mobile crane - that is, the person presumptively employed by Select Cranes - and on the work of Brinzi in his various attempts to bring the Grocon mobile crane, and the riggers' truck, on to the site. He relied also on the intended work of the employees of Select Cranes and Grocon in unloading the tower crane sections and the erection of the crane. There was no evidence, nor even suggestion, of any direct attempt to prevent these employees from erecting the crane or from otherwise carrying out their normal work. For them, the problem was that the wherewithal for the doing of their work had not been allowed on to the site. 31 It is established on the pleadings that the work of these employees of Select Cranes and Grocon was, or would have been, done in accordance with terms and conditions prescribed by an industrial instrument. However, it is not so established, and it does not otherwise appear from the evidence, that the work of the driver of the Select Cranes mobile crane was, or would have been, done in accordance with terms and conditions prescribed by such an instrument. 32 As to Andrew Brinzi, the applicant accepted that, because of his managerial position, the work he was performing when he attempted to drive the Grocon mobile crane, and later the riggers' truck, on to the site was not, or would not have been, done in accordance with terms and conditions prescribed by an industrial instrument or by an order of an industrial body. It was submitted on behalf of the applicant, however, that, to the extent that there was a ban, limitation or restriction on his work, it was adopted in connection with an industrial dispute. It was put that the CFMEU was in dispute with Grocon about the manning of the tower crane and the recognition of employee representatives, and that it was in connection with that dispute that the conduct of the CFMEU organisers at the gates to the site was engaged in. This submission, to which the respondents had no credible answer, must be accepted. 33 Thus the "work", the performance of which might have been the subject of a ban, limitation or restriction within the meaning of the definition of "building industrial action" in the Act, was, on the applicant's case, either or both of the work of the employees of Select Cranes and Grocon who were going to unload the tower crane sections and to erect the crane on site, and the work of Brinzi in attempting to bring the Grocon mobile crane and riggers' truck on to the site. It remains to consider whether the respondents' conduct was such as imposed a ban etc on that work. 34 I commence with the work of the employees of Select Cranes and Grocon who would have unloaded the sections of the tower crane, and erected that crane. Here, the applicant put his case two ways. First, it was said that the conduct of the respondents Spernovasilis, Reardon, Christopher, Beattie and Theodorou at the gates to the site was, as such, a restriction or limitation on the performance of that work, and secondly, it was said that that conduct was indicative of the fact that a ban had been placed by the CFMEU on the performance of that work. The respondents contested those propositions. They submitted that there was no ban, limitation or restriction on any such work. The evidence, they submitted, was concerned only with the events which took place at the gates to the site as such. 35 At each of these levels, the respondents relied upon the judgment of the Full Court in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 as authority for the proposition that picketing activity did not come within provisions the equivalent of paras (b) and (c) of the definition of "building industrial action". In that judgment, Wilcox and Cooper JJ made a distinction between two kinds of picketing: one which did no more than communicate information and one which involved preventing or hindering people from working, or from offering for or accepting work. The former would not amount to a "ban limitation or restriction on the performance of work". However: On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work. Such conduct may be regarded as falling literally within par (c) of the definition of "industrial action". However, consistently with the tentative view of the Full Court in [Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1988) 89 FCR 200], we think the paragraph ought to be read as applying only to limitations on the work of those imposing the ban. The history of the legislation and policy considerations persuade us it is likely Parliament intended to confine the paragraph in this way. (91 FCR at 486 [52]). 36 Their Honours then considered "the history of the legislation and policy considerations", and concluded: As we have already observed, picketing which does not involve obstruction and besetting does not fall within the definition of "industrial action"; it does not relate to the performance of work in the circumstances specified in par (a), (b), (c) or (d) of the definition. Such conduct does not need the protection of s 170MT(2) because it is not actionable by anyone. Only picketing which involves obstruction and besetting, and is therefore an actionable tort, gives rise to policy considerations as to whether it was intended to be protected from suit, or should be so covered if the language will permit. Picketing which interferes with a person's liberty and freedom of movement infringes that person's common law rights; in particular, the right to free passage in public places and on public roads and footpaths: see Williams v Hursey at 78-79; Melbourne Corporation v Barry (1922) 31 CLR 174 at 196, 206; City of Keilor v O'Donohue (197l) 126 CLR 353 at 363; Fourmile v Selpam Pty Ltd (1998) 80 FCR 151 at 186. There is a presumption in the interpretation of statutes that there is no intention to interfere with common law rights or basic common law doctrines unless the words of the statute expressly or necessarily require that result: Baker v Campbell (1983) 153 CLR 52 at 123. To interpret par (c) of the definition of "industrial action" in such a way as to include picketing infringing upon the rights and freedoms of others, would be to confer statutory immunity on such conduct; provided only it was engaged in upon proper notice to the employer and for the purposes of negotiating a certified agreement or an AWA. It would authorise interference with the rights, not only of the employer, but also of other affected persons who, but for the immunity, would have a right of action at common law. The interpretation would substitute, for a remedy in common law courts of competent jurisdiction, a mere right to apply to the Commission for an order prohibiting the conduct. Bearing in mind the presumption mentioned in the last paragraph, we do not think the definition should be interpreted in that way. We do not discern a clear indication in the Act that Parliament contemplated that picketing involving obstruction and besetting, and which therefore amounts to an actionable tort, may be protected industrial action, provided only it did not involve, or was not likely to involve, personal injury, wilful or reckless destruction of property or unlawful taking, keeping or use of property. (91 FCR at 491-492 [71]-[73]). 37 The "policy considerations" to which their Honours referred were, of course, substantially informed by the statutory context in which the term "industrial action" arose under the Workplace Relations Act 1996 (Cth) ("the WR Act"), namely, the provision of an immunity from civil suit to a party who engaged in industrial action pursuant to a bargaining notice given under that Act. That context is not presently relevant, but the legislature's enactment of the definition of "building industrial action" in 2005 by reference to the template which had been the subject of detailed consideration by the Full Court in Davids Distribution leaves little scope to suppose that their Honours' interpretation was not intended to be adopted. 38 It was not, however, by reference to such a simple truism that Kenny J decided the point which arose in Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357. In disposing of a no-case submission, her Honour held that a ban, limitation or restriction on the performance of work which had been imposed directly by a union official came within the terms of the definition of "building industrial action" in s 36 of the Act, notwithstanding that it had not been imposed by the employees to whose work it applied. Her Honour undertook a detailed consideration of Davids Distribution, and held: … I accept that the Full Court in Davids 91 FCR 463 was concerned with the scope of "protected action", as the passage set out at [41] above shows. Here the Full Court reasoned that, to the extent that picketing involved obstruction and "besetting", it could constitute "industrial action", but that it did not do so because such conduct was an actionable tort in respect of which the Parliament was not to be taken to have conferred statutory immunity. Subject to what appears at [49] below, this reasoning is independent of, and separate from, the Full Court's earlier conclusion that para (c) of the definition of "industrial action" ought to be construed so as to extend only to bans, limitations and restrictions imposed by employees performing the work in question. (170 FCR at 375 [43]). 39 Commencing with the question whether the observations of Wilcox and Cooper JJ in Davids Distribution had been obiter, Kenny J said: The status of the observations in Davids 91 FCR 463 is less clear, but, plainly enough, as already noted, the focus of Davids was on picketing. Accordingly, the observations in Davids on the scope of the definition of "industrial action" in s 4(1) of the WR Act are to be considered in this light. Furthermore, it is to be borne in mind that the Full Court in each case was not concerned with the BCII Act but with the WR Act, being different though related legislation. Whilst I must take such guidance from Davids and [Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1988) 89 FCR 200] as I can, they provide no clear and definitive answer to the question whether or not the words "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act refer to a ban, limitation, or restriction imposed only by employees, or can extend to union action. (170 FCR at 377 [49]). 40 Cahill was not a picketing case. In a situation of the kind with which Kenny J was confronted, there could, with respect, be very little doubt as to the applicability of the definition of "building industrial action". I said something on this subject in Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441, 474-475 [95] and, having reconsidered the matter, there is nothing which I would wish to add to that. However, the present case is not one in which a traditional work ban was imposed by a union official. Although the connotation of "picketing" is variable, the defining feature of the action taken by the respondents is that it involved procuring vehicles not to enter the site, or preventing them from doing so. As a matter of normal industrial relations terminology, it is convenient to describe this kind of action as picketing. 41 Uninstructed by authority, I would analyse the application of the definition of "building industrial action" to picketing situations as follows. To prevent, even by direct physical means, the entry of a person or vehicle on to a site where work is being, or would be, carried out does not, of itself, amount to a ban, limitation or restriction upon the performance of that work. It may have the effect that the work cannot be performed, and it may even have been intended to have that effect. But it would not, in my view, be a ban, limitation or restriction upon the performance of the work. The paradigm instance of such a picket might be, for example, preventing the delivery of some supplies which are essential to one aspect of the work of some specialised group of workers. In this example, the workers themselves would be waiting on site, ready to work, and their union would presumptively have no ban etc on them doing so. The fact that they did not work would be the consequence of the supplies not being at hand. Those picketing the entrance to the site would not, in my view, be imposing a ban, limitation or restriction on the performance of the work of the specialised workers. 42 On the other hand, a picket may operate in such a way that it does amount to such a ban, or at least to a limitation or restriction. Another way of achieving the same industrial objective as that discussed in the previous paragraph may be for the picketers to prevent the specialised workers themselves from entering the site. Indeed, a traditional form of the industrial picket had as its object preventing workers who chose not to strike with their fellows from continuing to work. This may, at least to an extent, have been the situation in Davids Distribution. Whether or not it was, it is not difficult to appreciate the sense in which Wilcox and Cooper JJ held that, if a picket took the form of preventing or hindering people from performing, accepting or offering for work, its effect was a restriction or limitation upon such things. With respect, I would say that, in the circumstances postulated, a restriction or limitation upon the performance of work might be more than merely the effect of picketing of this kind: it may, and in my opinion would, be the appropriate characterisation of the conduct itself. 43 Had I been free to decide the present case by reference to the reasoning set out in the two preceding paragraphs, I would have held that the conduct of the CFMEU organisers at the gates to the site amounted to a restriction or limitation on the performance of Brinzi's work, but not on the performance of the work to be done by the Select Cranes and Grocon employees who were waiting on the site, ready to unload and then to erect the tower crane. 44 The present area is not, however, free of authority. I am unable to read the reasons of Wilcox and Cooper JJ in Davids Distribution as involving anything less than the proposition that picketing, even if obstructive, was not to be understood as amounting to a ban, limitation or restriction on the performance of work, within the terms of the definition of "industrial action" with which their Honours were concerned, unless the "work" under consideration was that of employees who were participating in, or who had otherwise imposed, the conduct which constituted the picket. There is, in my view, no escape from the proposition that this aspect of the definition "ought to be read as applying only to limitations on the work of those imposing the ban": Davids Distribution 91 FCR at 486 [52]. I recognise, of course, that their Honours were strongly influenced by considerations of legislative policy which were informed by the provisions, and the objects, of the WR Act, but the adoption, effectively unaltered, of the same definition by the draftsman of the Act in 2005, six years after the publication of their Honours' reasons, leaves no scope for misunderstanding Parliament's intention. 45 I recognise also that the interpretation preferred by their Honours in Davids Distribution was not taken to its logical, and literal, conclusion in Cahill when Kenny J was confronted with a conventional work ban imposed by a union official. If that were the fact situation in the present case, I would follow her Honour, as I did in Williams v CFMEU. But such is not the present fact situation. The present case is concerned with picketing, and does not, in my view, fall within the exception to Davids Distribution which Kenny J recognised in Cahill. I was informed by counsel for the applicant that this is the first occasion, in a final adjudication, upon which a court has been required to rule upon the question whether, because of Davids Distribution, picketing can ever be described as a ban, limitation or restriction on the performance of building work in the context in which that expression is used in the definition of "building industrial action", or in an analogous context. My own judgment in Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (2009) 178 IR 458, 465-466 [31], where I held that Cahill did not deal with picketing situations, was interlocutory. The result is that Davids Distribution remains the most recent, directly applicable, binding authority. For reasons given above, I am unable to distinguish it. 46 In the present case, the restriction on the performance of building work which was presumptively brought about by the conduct of the respondents Spernovasilis, Reardon, Christopher, Beattie and Theodorou in preventing mobile cranes, and a truck carrying tower crane components, from entering the site was not imposed by those doing, or who would do, the work concerned. It follows that, by acting in this way, those respondents did not engage in building industrial action within the meaning of the Act. 47 At trial, there was some discussion of the question whether it might be inferred from the fact of the picket, from the nature of the deliveries that were prevented from entering the site, from the respondent Oliver's statements to Van Camp on 17 February 2011 and from the CFMEU's omission to call evidence that the CFMEU had imposed a ban on the performance of tower crane erection work at the site. If the facts were to be seen in this light, the picket, although not a ban etc in its own right, might nonetheless have been a circumstance from which the existence of a ban might be inferred. To the extent that the applicant's case might be understood as relying on such a construct of the facts, I would hold that it does not come within the Further Amended Statement of Claim. The only primary contravenors, as alleged by the applicant, were Spernovasilis, Reardon, Christopher, Beattie and Theodorou. As alleged, the CFMEU's liability was derivative. It follows that, if these organisers did not contravene s 38 in relation to the unloader/erector employees of Select Cranes and Grocon, the CFMEU cannot be liable for having done so. 48 Oliver was not alleged to have contravened s 38 of the Act in a primary sense. His liability was said to arise as an accessory under s 48(2) of the Act. Since I have, in relation to those unloaders and erectors, rejected the applicant's case in relation to those alleged to be primarily liable under s 38, it follows that there was no contravention to which Oliver could have been an accessory under s 48(2). 49 I turn next to consider whether the conduct of the CFMEU organisers at the gates to the site was a ban, limitation or restriction upon the work of Andrew Brinzi. It will be recalled that he attempted to bring the Grocon mobile crane and the riggers' truck on to the site, but was physically impeded from doing so by those organisers. As a matter of normal language, what they did was to limit or to restrict the performance of his work. However, this limitation or restriction was applied by persons other than the one who would otherwise have performed the work, Brinzi himself. The notion that the legislation might have contemplated that the definition would be satisfied in a case, such as the present, only where the truck driver whose entry on to a site was banned, limited or restricted by himself or herself does strike one as odd, but, on another way of looking at it, it may be no more than a reflection of the fact that the definition was concerned only with conventional industrial action where workers, or their union, placed bans on work which they would normally be expected to perform. 50 In the circumstances, because of their Honours' ruling in Davids Distribution, I must hold that the conduct of the organisers in preventing the entry on to the site of the vehicles driven by Andrew Brinzi was not a ban, limitation or restriction on the performance of his work and was not, therefore, building industrial action within the meaning of the Act. 51 It follows that the applicant's case under s 38 of the Act must be rejected. 52 Turning next to the applicant's case under s 43 of the Act, subs (1) thereof provided as follows: A person (the first person) must not organise or take action, or threaten to organise or take action, with intent to coerce another person (the second person): (a) to employ, or not employ, a person as a building employee; or (b) to engage, or not engage, a person as a building contractor; or (c) to allocate, or not allocate, particular responsibilities to a building employee or building contractor; or (d) to designate a building employee or building contractor as having, or not having, particular duties or responsibilities. On the applicant's case here, the respondents were the first persons within this provision, and either Grocon or Mirvac, or both, was or were the second person or persons. 53 I would commence by putting Mirvac to one side. There is nothing in the facts of the case from which any intention to coerce Mirvac might be inferred. 54 On the findings made above, there is no difficulty in concluding that, at least on 17, 18 and 19 February 2011, the individual respondents (although not necessarily all of them on every such day) took action with intent to coerce Grocon to agree to a crew of four on the operation of the tower crane and to agree also to some proposition, the detail of which is not so clear (and to which I shall have to give further consideration below), in relation to the representation of employees on the project. The contentious issue is whether such action came within the terms of s 43(1). 55 Commencing with the manning issue, the applicant relied first on paras (a) and (b) of s 43(1), and contended that it was the individual respondents' intent to coerce Grocon to "run the tower crane activities with a four man crew, thereby employing or engaging an additional worker on the tower crane crew". The only evidence of the intent of those on the picket was Van Camp's evidence of his conversation with Oliver. Oliver did not require or request Grocon to employ or to engage a person: he required that the crew used to operate the tower crane be four strong. Of itself, the intent conveyed by those words would not fall within para (a) or para (b) of s 43(1) of the Act. 56 The problematic aspect of the applicant's allegation lies in so much of it as is introduced by the adverb "thereby". The allegation is that the addition of a fourth member to the existing (proposed) crane crew would inevitably require the employment or the engagement of an additional worker. In my view, this allegation cannot be sustained. It is based upon a misapprehension of the content of the prohibition in the Act and, in any event, has not been made good on the facts. 57 Section 43(1) was concerned with the thing which the target of the presumptive coercion was placed under pressure to do, as a matter of the actor's "intent". It was not concerned with the effect or consequences of the target acting as demanded. I accept that, in discerning the intent of the putative wrongdoer, the court would not be confined to the immediate consequences of what he or she demanded. The wrongdoer may use conduct A as a means of coercing a builder into following course B. At one level, that is what happened in the present case: the respondents at the picket were preventing the admission of the mobile crane to the site as a means of coercing Grocon into employing a crew of four on the tower crane. But the focus under s 43(1) must be on the intent of the wrongdoer, rather than on the consequences - even the inevitable consequences - of the target acting as intended. In the passage commencing "thereby" in this allegation, the applicant seeks to invoke a prohibition which goes beyond anything for which the Act provided. 58 Turning to the facts, there was nothing in the evidence that would sustain a finding that the implementation of a four-man crew on the tower crane would inevitably require Grocon to employ or to engage any person. Indeed, some evidence given by Mr Van Camp would seem to suggest that it would not. He said: If the work is all over one level geographically, it might be only necessary to have two dogmen, depending on where the crane is located and where the loads are to be picked up from and placed. If you are working on a multi-storey project, it makes commercial sense to have more dogmen because what you don't want is the crane waiting while a dogman travels between floors. So it's not uncommon for us to have high degree of dogmen interspersed throughout a project that is able to assist as required. On most occasions, Grocon's crane crew are principally working as dogmen. As a business, Grocon look upon what is most effective from a production point of view and although we have got people within the business who are not principally engaged as dogmen, but they do hold dogman qualifications and are quite versed in that skill. This gives Grocon, a degree of flexibility that would normally not exist otherwise. In relation to his conversation with the respondent Oliver referred to in para 9 above, Mr Van Camp said: I told Oliver that it was Grocon's policy to have a three-man crane crew and that Grocon would continue to utilise a three-man crane crew. If however, we felt that there was a need from a production or an efficiency point of view that we needed more, we would make that decision; but we weren't going to be artificially told by anyone, including Mirvac, that we needed more than three. 59 Likewise, Grocon's Victorian Health, Safety and Environmental Manager, Joe Brinzi, said in his evidence that, at a meeting held at the start of every day, tasks were identified which required additional crewing, that crane crewing was "activity based", and that decisions with respect to crane crewing were made at those meetings. 60 For the reasons I have given, I reject the applicant's case that the individual respondents took their coercive action with the intent referred to in s 43(1)(a) or (b) of the Act. 61 I turn next to so much of the applicant's s 43 case as related to the employee representative issue. Here reliance was placed on paras (c) and (d) of s 43(1). It was alleged that the individual respondents had the intent of coercing Grocon (1) not to allocate employee representative responsibility on the site to Grocon's "roving representatives", (2) to allocate employee representative responsibility on the site to "CFMEU-preferred persons", and (3) to designate to "certain CFMEU-preferred persons" the duties and responsibilities of employee representative on the site. 62 Notwithstanding the spare terms in which Oliver expressed the nature of this demand in his conversation with Van Camp on 17 February 2011, there is no doubt but that his, and inferentially the other individual respondents', intent was to coerce Grocon to agree to a regime under which it would accept as employee representatives, for the purposes of the provision in the industrial agreement to which I have referred in para 11 above, persons who were not in its own employ at all but who were employed by Mirvac. From that factual starting point, the question is whether that intent fell within the terms of s 43(1)(c) or (d). 63 I would hold not. The relevant provision in the industrial agreement was concerned with the recognition by Grocon of an employees' representative, with allowing that representative to have time away from work for the performance of his or her representative functions and with the provision to that representative of certain facilities. To describe these things as the allocation of responsibilities, or as the designation of the representative as the employee or contractor with particular duties or responsibilities, would involve a most unnatural straining of the statutory language. Under the agreement, it was the employees themselves who would take the steps that might, arguably, be so described. It was not their employer, Grocon. 64 Of course, the present question is not whether the respondents' intent was such as might have been accommodated within the regime contemplated by the industrial agreement, it is whether that intent was of a kind referred to in s 43(1), an issue which must be considered in its own right. However, given that Mr Oliver did not use the words of the statute in expressing his, and the other respondents', intent, it is inevitable that the court will look at the regulatory context in which Grocon was operating when attempting to understand the practical connotation of what he did say. If there were some readily apparent step which satisfied the statutory conditions and which it was within Grocon's power to take, either as employer or as party to the industrial agreement, it might be a simple matter to infer that Oliver had the intent to coerce Grocon to take that step. There was, however, no such step. 65 At base, the essence of Oliver's demand was that Grocon accept as representatives under the industrial agreement persons who were not its own employees, give them access to so much of the site as was under Grocon's control, permit them to interact with its own employees in the same way as would be the entitlement of representatives who were its own employees, and provide for them the range of facilities that such representatives would enjoy. In my view, such a demand did not come within the terms of paras (c) or (d) of s 43(1) of the Act. 66 It follows from the above reasons that the application must be dismissed. 67 I am not aware of any reason why costs would not follow the event but, lest there be one, I shall reserve to the applicant liberty to apply within seven days. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining & Energy Union

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Judgment (7 paragraphs)

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Cases Cited (8)

Cited By (4)