The events of 28 April 2014
57 The Director's case in respect of the events of 28 April 2014 was pleaded at [10] - [20] of the Statement of Claim filed on 31 March 2015 as follows:
10 At approximately 8.45 am on 28 April 2014 McDermott and Sloane attended at the Site.
11 McDermott and Sloane signed a document described as a 'visitor register' at approximately 8.55 am.
12 McDermott and Sloane met the project manager at the Site, Benjamin Groves (Groves).
13 Groves asked McDermott and Sloane why they were at the Site. McDermott and Sloane did not provide a response. Groves asked McDermott and Sloane to leave the Site.
Particulars
13.1 Groves spoke to McDermott and Sloane and said words to the effect 'Why are you guys on site, is it for industrial relations or safety related?'
13.2 McDermott and Sloane did not respond to Groves.
13.3 Groves said words to the effect 'You haven't provided us with a notice of entry, you must leave site.'
14 Notwithstanding the direction in paragraph 13, McDermott and Sloane walked further onto the Site and proceeded to hold, and further or in the alternative, attempted to hold, discussions with Project Workers.
Particulars
14.1 McDermott and Sloane held the discussions:
14.1.1 in rooms or areas at the Site not agreed with Hindmarsh for the purposes of section 492 of the Act; and
14.1.2 not during mealtimes or other breaks for the purposes of section 490(2) of the Act.
14.2 The discussions included:
14.2.1 discussions with approximately five Ballestrin employees performing work in the excavation pit at the Site at about 9 am;
14.2.2 discussions with an employee of Hindmarsh, Damien O'Connell, who was performing work in the excavation pit at about 9.10 am; and
14.2.3 discussions with an employee of McMillan who was performing work in the excavation pit at about 9.15 am.
15 McDermott and Sloane left the Site at approximately 9.25 am.
16 As at the time of entry on 28 April 2014 McDermott and Sloane had not provided Hindmarsh with an entry notice in respect of the entry for the purposes of section 487 of the Act (entry notice).
17 The Fair Work Commission (FWC) had not issued an exemption certificate for the entry on 28 April 2014.
18 By reason of the matters referred to in paragraphs 2.4, 10, 11, 13 and 14 herein McDermott was seeking to exercise rights in accordance with section 484 of the Act.
19 By reason of the matters referred to in paragraphs 3.3, 10, 11, 13 and 14 herein Sloane was seeking to exercise rights in accordance with section 484 of the Act.
20 By reason of the matters set out in paragraphs 2.1 to 2.4 herein, the CFMEU was taken by operation of section 793(1 )(a) of the Act to have engaged in the conduct of McDermott referred to in paragraphs 10, 11, 13 and 14 herein.
58 I bear in mind that there is no pleaded allegation that Mr Sloane was involved in the contravention pleaded against Mr McDermott within the meaning of s 550 of the FW Act. The Director must establish that each of the elements of a contravention of s 500 of the FW Act is independently made out in relation to Mr Sloane.
59 As originally filed, the Statement of Claim alleged (at [3.1]) that Mr Sloane was an employee, officer or agent of CFMEU-NSW. CFMEU-NSW was named as the fifth respondent. It was alleged that CFMEU-NSW was liable for a contravention of s 500 of the FW Act by reason of the conduct and state of mind pleaded against Mr Sloane.
60 On 29 April 2016 I granted the Director leave to discontinue the action against CFMEU-NSW and to file an Amended Statement of Claim. The Amended Statement of Claim contained amendments consequent upon the discontinuance against CFMEU-NSW and included an additional allegation to the effect that Mr Sloane was an employee of both CFMEU and CFMEU-NSW. The allegations in [10] - [20] of the pleading remained untouched.
61 Mr McDermott pleaded that he did not recall some of the significant pleaded facts. He nonetheless did not dispute, and is therefore taken to have admitted those facts.
62 Mr Sloane filed a Defence dated 15 June 2016 and then an Amended Defence dated 5 November 2015. In his Amended Defence, he admitted (or is taken to have admitted) the allegations pleaded in [10] and [11] of the Statement of Claim. He claimed that he did not know and could not admit whether he and Mr McDermott met Mr Groves at the Site, as alleged in [12] of the Statement of Claim. He further claimed that he did not recall and therefore could not admit the allegations that Mr Groves had asked him and Mr McDermott why they were there, that they gave no response and that they were then asked to leave the Site. Nor, according to his Amended Defence, could Mr Sloane recall any of the matters pleaded in [14] of the Statement of Claim, including the allegation that he walked on to the Site and held or attempted to hold discussions with the Employees. He nonetheless made admissions to the effect that he left the Site at approximately 9:25 am, that he had not provided Hindmarsh with an entry notice for the purposes of s 487 of the FW Act and that the FWC had not issued an exemption certificate in respect of his entry to the Site on the relevant date. In response to the allegation that by entering the Site he was seeking to exercise rights in accordance with s 484 of the FW Act, Mr Sloane pleaded, by repetition and reference, that he did not recall events and that he therefore did not know and could not admit whether he was seeking to exercise such rights. He then repeated that plea as the basis for denying liability for a contravention of s 500 of the FW Act.
63 By an affidavit sworn on 21 August 2015, Mr Sloane deposed to having visited a number of construction sites in Adelaide over a period of five to six days in 2014. He went on to say:
11. When I filed my Defence in these proceedings I exercised my right to privilege against self-incrimination and self-disclosure [sic] to penalty.
12. I intend to maintain my right to privilege against self-incrimination and self-disclosure to penalty at the hearing of this matter in relation to events on 28 April 2014 at the Ergo Apartment Stage 2 Project site pleaded in the statement of claim paragraphs 10 to 14, respectively.
64 Mr Sloane filed a further Amended Defence dated 10 May 2016 in response to the Amended Statement of Claim. I will refer to that pleading as Mr Sloane's Second Amended Defence, although it was not correctly titled that way. Although [10] - [20] of the Statement of Claim had not been amended, Mr Sloane's responses to those pleas were amended in significant respects. He denied facts pleaded in [12], [13] and [14] whereas he had previously pleaded that he could not recall those events. He denied that he was, upon entering the Site, seeking to exercise rights in accordance with s 484 of the FW Act, whereas he had previously pleaded that, by reason of having no recollection of critical facts, he did not know and could not admit his purpose for attending there.
65 In an affidavit sworn on 9 May 2016, Mr Sloane gave evidence to the effect that he had read the affidavits of the Director's witnesses at the time of preparing his first affidavit (that is, in August 2015). He said words to the effect that reading the affidavits of the Director's witnesses had "brought back" his memory of certain events of his visit to the Site.
66 He went on to give evidence of having positive recollections of events that occurred at the Site and as to his state of mind, particularly his subjective purposes for attending there. He denied holding any discussions on the Site with the Employees. He stated that he had confined his comments to saying "hello" or "hi" when he was introduced to the Employees by Mr McDermott as a "colleague from New South Wales". He stated that he did not, at the relevant time, consider it would be appropriate to hold or attempt to hold discussions with Employees at the Site "concerning industrial issues or any issues beyond that which were necessary to be polite". Mr Sloane stated that Mr McDermott said on occasions during the visit that he (Mr Sloane) was "working for us locally here, for the CFMEU".
67 There is substantial inconsistency between the facts pleaded in the Amended Defence dated 5 November 2015 and matters pleaded in the Second Amended Defence dated 10 May 2016. Mr Sloane's affidavit of 9 May 2016 does not adequately explain the inconsistency. Under cross-examination, Mr Sloane stood by his assertion that he could recall events that had occurred at the Site at the time of preparing his first affidavit in August 2015. That is curious. His recollection of events at that time did not assist him in explaining why he made positive assertions in the Amended Defence of 5 November 2015 that he had no recollection of critical events.
68 I find Mr Sloane's attempts to explain away the differences between the two versions of the pleadings to be wholly unconvincing. Nor do I accept that the inconsistencies between the two versions of the pleading can be explained by Mr Sloane's reliance or purported reliance on the privilege against self-incrimination or self-exposure to civil penalty, as he alleged. The claim for privilege does not erase or otherwise explain the circumstance that Mr Sloane originally made positive pleadings of fact in response to the Statement of Claim, namely his pleaded state of mind of having no recollection of important events. Whilst it might have been open to Mr Sloane to plead no substantive defence to the facts alleged in the Statement of Claim, that is not the course that he adopted.
69 Mr Sloane's credibility is adversely affected by the inconsistencies in his pleadings, together with his inept attempts to explain how, at the time of trial, he purported to recall events which, as at 5 November 2015, he pleaded he could not recall at all.
70 It is against that background that I make the following findings of fact.
71 Mr Sloane first attended at the Site with Mr McDermott at about 8:45am. He signed the visitor register upon his arrival. He was wearing a helmet and a vest, both of which were clearly marked with the initials CFMEU. He remained at all times in close proximity to Mr McDermott. At the time that Mr McDermott and Mr Sloane were approached by Mr Groves, Mr Sloane was standing no more than one metre away from Mr McDermott. Mr Sloane introduced himself to Mr Groves as "Tony". Mr McDermott explained to Mr Groves that Mr Sloane was a person who was working locally for CFMEU.
72 Mr Groves said words to the effect "Why are you guys on site, is it for industrial relations or safety related?" Neither Mr McDermott nor Mr Sloane responded to the question. Mr McDermott smiled. I am satisfied that when he asked the question, Mr Groves was facing Mr McDermott. However, I reject Mr Sloane's evidence that Mr Groves' question enquired only as to Mr McDermott's purpose for attending the Site and not also as to Mr Sloane's purposes. Although directed to Mr McDermott, the words of the question clearly enquire as to the purposes of both union officials and were uttered within earshot of Mr Sloane. It can be fairly inferred that Mr Sloane heard the question and understood the question to go not only to Mr McDermott's reasons for being there but also to his own.
73 In cross-examination, Mr Groves acknowledged that he had, on a number of previous occasions, asked Mr McDermott to explain his reasons for attending the Site. I do not accept that Mr McDermott's smile in response to the question evidenced a light-hearted relationship between Mr McDermott and Mr Groves as a matter of fact, nor do I accept Mr Sloane's evidence that there was an atmosphere of jocularity between Mr McDermott and Mr Groves, such that questions of the kind posed by Mr Groves could simply be ignored. No proposition of that kind was put to Mr Groves in cross-examination. I will return to that issue again later in these reasons.
74 I am satisfied that Mr Groves then told both Mr McDermott and Mr Sloane to leave the Site. He said words to the effect "You haven't provided us with a notice of entry, you must leave the site". It matters not whether Mr Groves was physically oriented toward Mr McDermott when he gave that direction. The import of the direction is to be derived from the question that preceded it. I find that Mr Sloane subjectively understood the direction to be aimed not only at Mr McDermott but also at himself. It is, I find, incredulous that Mr Sloane might entertain the idea that it was only Mr McDermott who was being told to leave the Site, particularly in circumstances where neither of them had given notice of entry. Mr Sloane ultimately conceded in cross-examination that he well understood he did not have the permission of Mr Groves to enter the Site. The concession was not readily forthcoming.
75 Mr McDermott proceeded further into the Site with Mr Sloane following no more than a metre behind him.
76 Photographs taken by Mr Fisher during the course of Mr Sloane's visit show Mr Sloane standing in close proximity to Mr McDermott and to Employees in small groups at three locations. The photographs were taken from vantage points varying between two and 20 metres from Mr McDermott and Mr Sloane.
77 I have considered the photographs in the context of the other evidence at trial, including a previous out-of-court statement of Mr Groves dated 8 May 2015, ultimately admitted in evidence without objection by Counsel for Mr Sloane. That statement was taken about 10 days after the events in issue. I consider it to be reliable evidence of the facts in issue. Mr Groves was cross-examined about some discrepancies between the earlier statement and his affidavit evidence in this Court. Notwithstanding those discrepancies, Mr Groves presented as an earnest witness. I do not accept that his affidavit was improperly tailored as suggested by Mr Sloane's Counsel in the course of cross-examination and in closing submissions.
78 At the first location, Mr McDermott and Mr Sloane are depicted with a small group of Ballestrin shotcrete workers in an excavation pit. I am satisfied that they remained in the group for a period of about 10 minutes at that location and that the relevant Employees ceased working to join with Mr McDermott and Mr Sloane in a group. Mr Groves could not recall seeing Mr Sloane talking to the Ballestrin workers at that location.
79 At the second location, Mr McDermott and Mr Sloane are depicted standing on either side of a Hindmarsh employee, Damien O'Connell. I am satisfied that Mr Groves saw Mr Sloane talking with Mr O'Connell, although Mr Groves was standing about 10 metres away and could not hear what was being said.
80 At the third location, Mr McDermott and Mr Sloane are depicted with a McMillan employee referred to in evidence by the first name Kerry. I am satisfied that Mr Groves saw Mr Sloane participating in a conversation with Mr McDermott and Kerry, although Mr Groves was positioned between 10 and 15 metres away and could not hear what was being said.
81 Mr Fisher's evidence was to the effect that he was either too far away from Mr Sloane or that Mr Sloane was positioned so that it was not possible for Mr Fisher to ascertain whether Mr Sloane was talking to any of the Employees at any of the three locations.
82 Whilst at the Site, and in Mr Sloane's presence, Mr McDermott handed CFMEU brochures to the Employees with a title to the effect What Your Union Can Do For You.
83 Much was made at the trial of the question of whether Mr Sloane in fact had any substantive conversation with any of the Employees at the Site during his 45 minute attendance there. On that topic, I am satisfied that Mr Sloane was introduced by Mr McDermott to the Employees as a union official who was working locally for CFMEU in Adelaide. He was not introduced as a mere outside observer of Mr McDermott's activities there, nor did Mr Sloane introduce himself in that capacity. When introduced to the Employees, Mr Sloane said "hello" or "hi". In his oral evidence, he described the nature of his exchanges with the Employees as a "meet and greet". Having regard to Mr Sloane's own evidence and to all of the surrounding circumstances, I am also satisfied that Mr Sloane engaged in what he described as banter with the Employees on topics other than industrial issues, and that he permitted himself to be introduced as a local representative of CFMEU either before or after Mr McDermott handed out brochures to the Employees which, I find, promoted the services their union representatives could provide to them.
84 To the extent I have described in the preceding paragraphs, I find that Mr Sloane participated in discussions with the Employees. However, the evidence does not establish the precise content of his contributions to those discussions. It is not established, for example, that Mr Sloane expressly uttered words to the Employees on the topic of any specific industrial issue.
85 Mr Sloane's Counsel submitted that the Rules of Association of CFMEU and CFMEU-NSW were relevant in determining Mr Sloane's purposes for entering the Site. More particularly, it was alleged that the Rules prohibited, in the absence of certain consents, the resources of one State's CFMEU branch being deployed in another State. It was submitted that Mr Sloane's stated purpose for entering the Site was consistent with the Rules in that regard, particularly insofar as Mr Sloane denied holding discussions with the Employees as to industrial issues arising on the Site. Although I accept that the Rules might conceivably have some relevance in determining the subjective purposes of a CFMEU official from one State for entering a construction site in another, Mr Sloane gave no evidence as to having any detailed familiarity with the relevant Rules at the relevant time. He did not resort to them in cross-examination when his purposes for attending the Site were subject to challenge. Rather, he deposed that he considered it unlikely that Employees on the Site would be members of CFMEU-NSW.
86 These are not the first proceedings in which Mr Sloane is alleged to have contravened s 500 of the FW Act. As I have mentioned, Mr Sloane attended the Site during the course of a short visit to Adelaide, during which he visited a number of other construction sites. Early in his cross-examination, Mr Sloane stated that his purpose for visiting the Site was the same as his purpose for visiting other sites whilst in Adelaide. His evidence proceeded as follows:
Mr Roder: … You were in Adelaide for about a week, weren't you?
Mr Sloane: Yes.
Mr Roder: Yes. Did your purpose in Adelaide for that entire week remain the same?
Mr Sloane: Yes.
Mr Roder: I see. So your purpose on that day was no different from your purpose on other days when you attended other sites?
Mr Sloane: Yes.
Mr Roder: Yes. Did you hold discussions with workers when you attended other sites in Adelaide during that week?
Mr Sloane: No.
87 One of those other sites was a construction site for an Ibis Hotel on Grenfell Street in the Adelaide CBD. Mr Sloane was the respondent in civil remedy proceedings in this Court in which it was alleged by the Director that he had contravened s 500 of the FW Act in connection with his visit at that site. He acknowledged in cross-examination in this action that he had admitted in the course of the earlier proceedings that he visited the Ibis Hotel site for the purpose of seeking to exercise rights in accordance with s 484 of the Act.
88 In re-examination, Mr Sloane claimed that he had not understood the import of questions put to him on this topic during cross-examination. I do not accept that Mr Sloane had difficulty understanding the meaning of the questions put to him. Although he had earlier stated that he suffered from dyslexia which, he said, affected his ability to absorb written materials, he presented as a robust witness, capable of avoiding responses he perceived to be adverse to his case and taking issue with potentially harmful propositions put to him. His responses in cross-examination generally showed a high level of vigilance, particularly in relation to the question of whether he had carried on any conversation with any of the Employees at the Site.
89 Mr Sloane's responses in connection with the Ibis Hotel issue were unguarded, rather than affected by any misunderstanding as to the meaning of the questions put to him. He gave no evidence to the effect that his admissions in relation to the Ibis Hotel site could or should not be interpreted as meaning anything other than he had entered into that site for a s 484 purpose, that is, the purpose of holding discussions with workers there. Nor was any submission to that effect made on his behalf at trial.
90 Finally in respect of the factual allegations, I find that the discussions that occurred at the Site took place in areas that had not been agreed with Hindmarsh. That inference fairly arises from the fact that Mr Groves had not been given notice of the visit and that he directed Mr McDermott and Mr Sloane to leave the Site. I also find that the Employees ceased their work to participate in discussions and that the discussions took place at times other than meal breaks or other scheduled breaks in their work.