Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union [2025] FCA 994 | Case summary

258 FCR 257Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union [2025] FCA 994 | Case summary | Zoe

[172]

In or about October 2019, Qube and the Union commenced bargaining for a proposed enterprise agreement that would cover various Qube employees at the Harbour. Qube and the Union were bargaining representatives for that proposed enterprise agreement. During the bargaining, the Union organised protected industrial action in accordance with the Act and in order to advance its claims for the proposed agreement. Qube employees, who were to be covered by the proposed agreement, took that protected industrial action.
From around 30 July to 15 October 2021, various people were present at and around the Qube Fremantle operations at the Harbour, including at the gate known as Gate 6.2 at the Jetty, in what the parties described as a picket. The Union admits that a number of Qube employees were present at and around the gates to the Qube Fremantle operations at the Harbour during this period. The Union admits that it engaged in a media campaign in relation to the bargaining on behalf of its members for the proposed enterprise agreement. It also admits that a number of its officials attended at the Harbour from time to time between 30 July to 15 October 2021.
The Union accepts that its conduct in the period 30 July to 15 October 2021 included, first, asserting from time to time that protected industrial action would continue unless and until a new enterprise agreement was reached. Second, encouraging people to support Qube employees taking protected industrial action in support of the proposed enterprise agreement, including by attending a protest described as a picket at and around the gates of the Jetty. Third, criticising Qube from time to time, including in relation to bargaining for the proposed enterprise agreement. Fourth, financially assisting Qube employees who engaged in the protected industrial action and encouraging others to do so.
The Union further accepts that "from time to time ... certain picketers" travelled to the Harbour in cars featuring Union stickers, wore Union branded clothing and waved Union flags, and chanted. I did not understand those admissions to be admissions as to the particular travel arrangements, clothing or conduct of those present at the Gate of the Jetty on 24 August 2021.
As explained, the Ombudsman alleges that the most significant events the subject of this application took place on 24 August 2021 at a picket at the Gate of the Jetty. In summary, she alleges that:

[177]

For the period of the picket, July to October 2021, Mr Copperthwaite was employed by Qube as a Shift Manager. However, during that period he performed stevedoring duties rather than shift management duties.
Mr Copperthwaite gave general evidence about conduct at the Jetty in the period leading up to 24 August 2021. He gave evidence of the events on 24 August 2021, particularly the circumstances of the picket on that morning and the things said which were directed at him. He also gave evidence of the events that immediately followed on that day and after. Mr Copperthwaite wrote a note on the day of the events on 24 August 2021 that briefly described the events. He also attended the Kwinana Police Station on that day and completed an incident report. Mr Copperthwaite gave an oral account of the events to Australian Building and Construction Commissioner Inspector Robert Tonev on 24 February 2022. That account is recorded in a file note which Mr Copperthwaite signed agreeing that it was an accurate record. Mr Copperthwaite prepared an amended outline of evidence dated 24 May 2024 and further amended outline of evidence dated 29 June 2024. Both were admitted into evidence.
There were parts of Mr Copperthwaite's evidence that were not entirely consistent with his earlier accounts as recorded in writing or in the interview with Inspector Tonev. There were parts of his evidence where he accepted that his recollection may have been faulty. These are discussed below. However, I do not consider that any error or concession on those matters was enough to undermine the material and most serious aspects of his evidence.
In CCL Secure Pty Ltd v Berry [2019] FCAFC 81, the Full Court (of McKerracher, Robertson and Lee JJ) observed (at [94]) that it has been a long time since the maxim _"_false in one thing, false in everything" was part of the common law, its broad applicability having been rejected long ago. The Full Court observed that it is trite that the tribunal of fact (be it a judge or jury), having seen and heard the witness, is to decide whether the evidence of the witness is worthy of acceptance and this may involve accepting or rejecting the whole of the evidence, or accepting some of the evidence and rejecting the rest, citing Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [118]- [123] (O'Loughlin J).
On the important aspects of Mr Copperthwaite's evidence about the statements made to him on 24 August 2021, I found Mr Copperthwaite to be credible and largely consistent with his written record and conduct on and after that day. Mr Copperthwaite made concessions but his versions of the exchange with Mr Gill were largely consistent. They were not undermined by a contrary account, or any account, from Mr Gill.

[178]

Mr Coelho was employed by Pivotal Personnel Pty Ltd in the role of stevedore from May 2021. Pivotal supplied labour to Qube. Between May and December 2021, Mr Coelho was engaged by Pivotal as a casual stevedore on call out to Qube. Mr Coelho performed the work of stevedores who were otherwise taking protected industrial action. Mr Coelho described his work as "general labouring".
Mr Coelho gave evidence of conduct at the Jetty in the period May to December 2021. He gave evidence of the events on 24 August 2021, particularly the circumstances of the picket on that morning and the things said, and actions taken, which were directed at him. He also gave evidence of the events that immediately followed that day and after. Mr Coelho wrote a note on the day of the events on 24 August 2021 that briefly described the events. He gave an account of the events to Inspector Tonev on 28 February 2022. That account was recorded in a file note which Mr Coelho signed agreeing that it was an accurate record.
Mr Coelho was a combative witness who often had to be reminded to answer the question. He gave evidence that he attended at the Harbour "two to three shifts per week" during the period of the picket. There is a risk that some of his evidence might have been conflated from days other than 24 August 2021. However, I accept his evidence where it accorded with written accounts of the events or video footage of the events or where it accorded with other witness evidence. There were occasions where it appeared Mr Coelho had exaggerated some aspect of his evidence. However, where it accorded with other evidence I accept it. As with Mr Copperthwaite, I do not approach Mr Coelho on the basis of "false in one thing, false in everything".
I am also careful not to place too much emphasis on my assessment of Mr Coelho's demeanour. In Fox v Percy [2003] HCA 22; 214 CLR 118 at [30], Gleeson CJ, Gummow and Kirby JJ cited with approval Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 LI L Rep 140 at 152, where Atkin LJ observed that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour. As I say, I weigh Mr Coelho's evidence against the evidence of others and matters recorded in writing by him and others.

[189]

All of these posts were made using the "Maritime Union of Australia - WA Branch" Facebook account. The Ombudsman submits that the "MUA should be able to moderate the chat", meaning moderate the comments on the social media posts. However, there was no evidence about their ability to do so.
The Ombudsman relies on the social media campaign to say the Union "encourage[ed] the behaviour that ultimately occurred on 24 August 2021" as the social media campaign demonstrated "persistent denigration" and "dehumanisation of workers that were crossing the picket line, so they became fair game". The Ombudsman also says that the social media posts discuss the attendance on the picket, which demonstrates that "the Union kn[ew] what's going on, on the picket".
The Ombudsman also relies upon what it submits were comments on some of the social media posts by Mr Chris Cain. The Union admitted that Mr Cain was the Divisional National Presiding Officer of the MUA Division at all relevant times. Mr Cain, or someone posting under his name, appears to have posted comments in response to social media posts made on 4 August 2021, 8 August 2021, 10 August 2021, 20 August 2021, 23 August 2021, 29 August 2021 and 2 September 2021.
The Ombudsman complains that the Union failed to moderate or control behaviour at the picket, including by its social media presence. She says that there is no evidence the Union sought to control the behaviour on the picket. She refers particularly to the use of the words "our picket" in one post and one document headed "offshore update" to demonstrate the Union's control of the picket. She also relies upon the presence of the officials of the Union throughout the period of the picket. The Ombudsman also draws attention to a social media post in which the MUA stated: "we have 100% union membership with Qube in Fremantle".
The final post of the "Bedtime Stories of Pube Logistics" series occurred on 24 August 2021. The Union continued the social media posts about the dispute until a new agreement was agreed. The "Qube members" endorsement of the proposed agreement was announced on the Union's social media on 9 November 2021.
The social media posts did not include encouragement to engage in any particular type of unlawful conduct. However, the Ombudsman says that the: "nature of a picket during an industrial dispute is volatile. A picket can be fluid. At one moment it can be peaceful, at the next moment the mood can shift towards aggression, abuse, threatening behaviour and intimidation". The evidence did not establish that a picket would inevitably, or often, lead to unlawful conduct. The Ombudsman seems to submit that I should infer such a thing; namely, that the Union did or should have understood that the picket would "shift towards aggression, abuse, threatening behaviour and intimidation". It says the picket was consistently abusive, intimidatory and threatening in the lead up to 24 August 2021.
A picket is not necessarily unlawful. In Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108, 91 FCR 463, the Full Court considered whether the employer had acted unlawfully in terminating employees for participating in protected industrial action and picketing. In doing so, Wilcox and Cooper JJ said at [69] (citing French J in C_ommunications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing_ [1998] FCA 1410; (1998) 89 FCR 17 at 32), "picketing is unlawful only if it involves obstruction and besetting".
The evidence of the conduct of the picket prior to 24 August 2021 was given by Mr Kranendonk, Mr Rigoli, Mr Copperthwaite and Mr Coelho. I address that evidence below and assess whether it is accurate to say that the picket "was consistently abusive, intimidatory and threatening in the lead up to 24 August 2021". I return to the question of the Union's control over the picket, including by social media, when addressing the Union's liability for the picket.

[191]

During the period of protected industrial action, Mr Michael Kranendonk was Western Australian Manager of Qube. Mr Kranendonk's role was to oversee Qube's operations. Mr Kranendonk said that during the industrial action, he attended port locations 90% of the time. Mr Kranendonk gave evidence that when he would attend a Fremantle Port location where Qube was operating during the period of industrial action he would observe picketers at the entrance points.
Mr Kranendonk gave evidence about the conduct of the picketers. Mr Kranendonk said: "the number of picketers would range from around 15 to 30, on occasions with flags and banners", and they would stand around "staring at people coming through the gates, holding their phones, videoing". He said: "on occasions, there may have been 70 [picketers]". He gave evidence that some of the picketers were "a little bit disgruntled", although he added, "[I] can't really say people were disgruntled towards me". He said when other people were crossing the picket line, the picketers "would yell out, 'Do you feel proud?' I hope your mum and dad are proud of you', that kind of banter". Mr Kranendonk observed picketers, including Mr Doug Heath, videoing "people coming in and out of the gate". He observed picketers walking up to truck drivers trying to enter the work site, "having a chat to the driver. And then the driver will turn around and go away".
I accept the evidence of Mr Kranendonk. His evidence was frank and forthright. He made no effort to overstate or understate the events and circumstances that he witnessed. Mr Kranendonk's evidence of "disgruntled" picketers "standing around" and engaging in "banter" was not consistent with the Ombudsman's submissions that the picket was "consistently abusive, intimidatory and threatening". Although, I accept that "videoing" has the potential to intimidate, but it was not explored in any detail as to how often or how this was done.
Mr Kranendonk also gave uncontested evidence about how often Union officials and Mr Gill were present at the picket. Mr Kranendonk's evidence was that he would see:

[208]

The closed circuit television (CCTV) footage from inside the Gate records that Mr Coelho arrived by car near the entrance of the Gate at 5:41 am on 24 August 2021. He pulled over on the left of the entrance road some way before the Gate and before where people were standing on the right hand side of the Gate. That is consistent with Mr Coelho's evidence and is shown on the video taken from inside the Gate.
Mr Coelho and Mr Copperthwaite had previously arranged that Mr Copperthwaite would escort Mr Coelho through the Gate. That arrangement was necessary because Mr Coelho did not yet have his Maritime Security Identification Card. Whilst there was no evidence about the details of that arrangement or when and how it was reached, the existence of the arrangement is consistent with the evidence of both Mr Coelho and Mr Copperthwaite.
At around 5:53 am, Mr Copperthwaite walked towards the Gate from the inside. When Mr Coelho saw Mr Copperthwaite, Mr Coelho drove his car from his parking position (on the left of the road and back from the Gate) towards the front of the Gate.
As Mr Copperthwaite approached the Gate (from the inside) the picketers moved their position. Mr Gill moved across the Gate and to the left of the Gate (as viewed from the outside). Mr Gill then moved back towards the centre of the Gate and near the communications box on the outside of the Gate. The communications box is an unmanned electronic box that allows security staff to see and speak with people at the box. There is a communications box outside the Gate for those entering, and inside the Gate for those exiting.
Mr Copperthwaite went through the pedestrian turnstile at the Gate, from inside the Gate to outside the Gate. The pedestrian turnstile is in the centre of the gate and near the communications box for those entering the Gate. Mr Coelho's vehicle was now at the Gate approximately two to three metres from Mr Copperthwaite and near the communications box.
Mr Copperthwaite then spoke to security through the communications box outside the Gate.
Some of the people present, including Mr Gill, were standing near Mr Copperthwaite. Mr Coelho remained inside his car, still approximately two to three metres from Mr Copperthwaite.
I will return to the CCTV footage when I discuss the direction and distance of Mr Gill and Mr Copperthwaite below.

[216]

13. The picketers started barking like a dog at Mr Copperthwaite as he approached and entered the gate. The picketers started yelling and calling him names such as "scab" and "dog".

14. A Qube employee, who Mr Copperthwaite later discovered was Jason Gill, was standing approximately 30 cm away from Mr Copperthwaite. Mr Gill said to Mr Copperthwaite words to the effect of "you'll end up dead dog if you keep going like this". By "this" Mr Copperthwaite believed Mr Gill meant if he continued working through the industrial action.

15. Mr Copperthwaite also heard other picketers say to him words to the effect of "you'll end up being killed". One picketer whispered to him "I'll kill ya".

16. The picketers then started yelling and chanting the words "MUA, here to stay".

17. One of the picketers said words to the effect of "while you're doing this you should be thinking about Charmaine and the kids". This made Mr Copperthwaite feel very mad and upset as they were referring to his family.

18. After this comment was made, Mr Coelho started to call out to the picketers, as if to draw attention away from Mr Copperthwaite. At this time, Mr Coelho was sitting in his Ute which was approximately two metres away from Mr Copperthwaite. The picketers said to Mr Coelho "shut up".

19. One man who was wearing dark clothes and what appeared to be tinted sunglasses, used his hand to form a gun gesture and pointed it at Mr Coelho. The man was tall and skinny. He was wearing a black hoodie and black pants and shoes. The man then pointed the "gun" at Mr Copperthwaite. Mr Copperthwaite felt intimidated and his heart was racing.

20. A truck then pulled up behind Mr Coelho. Mr Copperthwaite asked Mr Coelho to park his Ute off to the side so that the truck could get through. As this occurred, the security guard spoke through the communication box to advise that they had found Mr Coelho on the list. Mr Coelho then drove through the gate.

21. Shortly after the incident occurred, Mr Copperthwaite was asked by Qube to write a statement of the events that occurred.

21A. On a couple of occasions, Mr Copperthwaite had previously worked with the person who had made the threat that "you'll end up a dead dog if you keep going like this". Mr Copperthwaite did not know his name, but only his nickname, which was "Gilly". He believes that on the next day, being 25 August 2021, he was shown by Michael Kranendonk in Mr Kranendonk's office a screenshot from the CCTV footage of 24 August 2021. Mr Copperthwaite confirmed to Mr Kranendonk that the person identified in the screenshot was the person that made that threat. Mr Kranendonk advised Mr Copperthwaite that that person's name was Jason Gill.

22. Mr Copperthwaite was later shown CCTV footage of the events by Qube and pointed to the individual on the CCTV footage who had said to him: "you'll end up dead dog if you keep going like this". Mr Copperthwaite again identified Jason Gill as the individual on the CCTV footage.

(Original emphasis.)

[225]

(1) At approximately 5:53:20 am, Mr Gill separates from the crowd and begins to approach the Gate (see camera 740). At approximately 5:53:33 am, Mr Copperthwaite becomes visible on camera 740. At approximately 5:53:34 am, Mr Gill becomes visible on camera 711. At approximately 5:53:47 am, Mr Gill walks towards the Gate and towards Mr Copperthwaite (see camera 740). At approximately 5:53:52 am, Mr Gill walks past camera 711.

(2) At approximately 5:53:56 am, Mr Copperthwaite exits the Gate by the pedestrian turnstile (camera 740).

(3) Between approximately 5:54:10 am and 5:55:20 am, Mr Gill and Mr Copperthwaite can be seen standing close to each other whilst Mr Copperthwaite is standing in front of the communications box. Mr Gill is recognisable (on camera 740) from his feet (in thongs) and his head (with cap and hood). The video quality does not definitively show that Mr Copperthwaite and Mr Gill's heads are facing each other. However, there are periods within that time where Mr Gill's head and Mr Copperthwaite's head are close. By close, I mean what appears to be 30-60 centimetres. This estimated distance is also indicated by the proximity of Mr Gill's feet to where Mr Copperthwaite is standing (visible on camera 740). Mr Gill's feet appear to be pointed towards Mr Copperthwaite. The footage on camera 711 at 5:54:11 am also shows Mr Copperthwaite turning his vision in the direction to where Mr Gill was standing.

(4) From approximately 5:55:24 am, Mr Gill appears to walk away from Mr Copperthwaite and goes out of view (on camera 740). Mr Gill returns to view (on camera 740) at 5:58:11 am.

(5) Between approximately 5:58:29 am and 6:00:52 am, Mr Gill and Mr Copperthwaite can again be seen standing close to each other. Again, Mr Gill is recognisable (on camera 740) from his feet (in thongs) and his head (with cap and hood). There are periods within that time where Mr Gill's head and Mr Copperthwaite's head are close. Again, by close I mean approximately 30-60 centimetres. The positioning of their bodies is consistent with them facing each other.

[228]

Mr Gill submits that the allegation that the words "dead dog" were used is undermined by contemporaneous (and near contemporaneous) accounts of the events. Mr Gill's submissions point to, first, the handwritten note by Mr Copperthwaite on 24 August 2021; second, the statement made by Mr Copperthwaite on the day to the police; and third, Qube's letter of allegations sent to Mr Gill dated 5 November 2021. None of those documents identify that the words "dead dog" were used by Mr Gill, or anyone else. Mr Gill's submissions draw attention to Mr Copperthwaite accepting in cross-examination that if he had been called a dead dog he would have been absolutely sure to note this fact. Mr Gill submits that the only logical explanation for these documents not referencing the dead dog statement is that the words were not said.
The phrase "dead dog" first appears in written evidence six months after the incident in Inspector Tonev's note dated 24 February 2022. The statement provides that: "the man I now know to be Jason Gill said, 'You'll end up dead dog if you keep going like this'". Similar words were used in Mr Copperthwaite's tendered outline of evidence and the subsequent amendments to that document. Mr Copperthwaite also gave evidence in cross-examination that on 25 August 2021 he said to Mr Kranendonk, when he identified Mr Gill in the photograph shown to him, "that's the guy that was standing in front of me that I said (sic) would end up like a dead dog if I kept going the way I was going".
I am satisfied that there are no fundamental inconsistencies in the contemporaneous (and near contemporaneous) accounts identified in Mr Gill's submissions which preclude me from accepting that Mr Gill said the dead dog statement to Mr Copperthwaite.
The handwritten note of 24 August 2021 contains a threat that: "they told me that if I continued doing what I was doing that 'I would end up being killed'". In cross-examination, when asked why he did not mention the dead dog statement in the note, Mr Copperthwaite said: "There was a lot happening at the time". Mr Copperthwaite gave evidence in examination in chief that the circumstances of him making the statement were to "just [to] put it on record that that happened". Given these circumstances, I approach Mr Copperthwaite's handwritten note of 24 August 2021 as not a comprehensive account of all of the events of that morning, but rather that it recorded the significant events without the detail. The note is very short. The relevant significant event is that a threat was made that he would be killed. The nature of the threat that "if I continued doing what I was doing that I would end up being killed" is substantially the same as "You'll end up a dead dog if you keep going like this". In my view, the fact that the dead dog statement was not referenced in the note does not mean that the words were not said on 24 August 2021. I accept the Ombudsman's submission that the fact that specific details are missing from the note does not necessarily indicate that the events did not happen.
The account recorded by the Kwinana Police station is also consistent with the threat as alleged having been made. It notes: "the words [said to Mr Copperthwaite] indicated that he would be killed". As with the handwritten note, this is consistent with the dead dog statement having been made, but again appears to record the significant events without some of the detail. It is not inconsistent with the detail later provided to Inspector Tonev, nor is it inconsistent with Mr Copperthwaite identifying Mr Gill by photograph on 25 August 2021 and saying to Mr Kranendonk: "that's the guy that was standing in front of me that I said would end up like a dead dog if I kept going the way I was going".
The 5 November 2021 allegations letter includes allegations that Mr Gill "verbally threatened" Mr Copperthwaite, including that he threatened to kill Mr Copperthwaite, and that Mr Gill called Mr Copperthwaite "abusive and insulting names". Mr Gill submits that an "overwhelming inference" is that Qube made these allegations because of Mr Copperthwaite's note and his conversations with Mr Kranendonk after the incident. In cross-examination, Mr Kranendonk agreed that Qube's practice is to put allegations of serious misconduct precisely, and that fairness requires that the allegations are put as precisely as one can based on the best information and evidence the company has at the time. I understand this line of questioning to have been directed at why the words "dead dog" were not included in the allegations letter. However, I am not satisfied that the absence of the words "dead dog" from the letter means that Mr Gill did not say the words on 24 August 2021.
First, Mr Kranendonk's evidence is somewhat weakened by the fact that he stated a number of times during cross-examination that he was not involved in the investigation against Mr Gill, and that he did not know what the outcome was or how the decision was made. When asked: "Can we take it that whatever allegations were put to him [Mr Gill] are likely to have been precise?", Mr Kranendonk said: "You would have to ask the person that was investigating that question", being Dan Coulton. Taken at its highest, Mr Kranendonk's evidence on this issue only goes to his understanding of what Qube's regular processes are for serious misconduct allegations and investigations.
Second, I am not satisfied that the relevant allegations in the letter are imprecisely put. While the letter does not specify the exact "abusive and insulting" names Mr Gill allegedly called Mr Copperthwaite and Mr Coelho, it clearly alleges that Mr Gill threatened to kill Mr Copperthwaite and Mr Coelho, that he threatened Mr Copperthwaite's family, and that he threatened Mr Coelho by making a hand gesture in the shape of a gun towards him. I do not consider that the level of detail in the allegations casts sufficient doubt on whether Mr Gill made the dead dog statement on 24 August 2021.
Third, and most critically, the allegation in the letter that Mr Gill threatened to kill Mr Copperthwaite is consistent with, and is a threat of the same nature as, Mr Gill making the dead dog statement.
I therefore find that there are no fundamental inconsistencies in the words used in Mr Copperthwaite's 24 August 2021 handwritten note, the statement to the police, and the 5 November 2021 allegations letter which would preclude me from accepting that Mr Gill said the dead dog statement to Mr Copperthwaite as pleaded.

[233]

Mr Copperthwaite conceded in cross-examination that there was no reason he would not have told Inspector Tonev that he knew the person as "Gilly". Mr Copperthwaite also agreed that it "beggars belief" that he did not tell Inspector Tonev.
There was evidence before me regarding whether Mr Copperthwaite and Mr Gill worked together. This fact is relevant to the likelihood that Mr Copperthwaite knew Mr Gill. Mr Copperthwaite said in examination in chief that he had worked with Mr Gill "a couple of times" over "three or four months" in 2021. Mr Kranendonk said in examination in chief that it was "highly probable" that Mr Copperthwaite and Mr Gill would have worked shifts together in 2021 prior to the industrial action starting. However, the parties subsequently agreed as a fact (for the purposes of s 191 of the Evidence Act 1995 (Cth)) that no Qube allocation sheets for the period 1 January 2021 to 31 July 2021 inclusive identify that Mr Gill and Mr Copperthwaite worked on the same gang, but that there is one allocation sheet for 1 July 2021 which records that Mr Gill and Mr Copperthwaite worked at the same time on different gangs at the same berth. I accept this fact.
I have also had regard to the allocation sheet for 1 July 2021 which records that there were 11 employees in Mr Copperthwaite's gang on that day, and 17 employees in Mr Gill's gang. I accept Mr Kranendonk's evidence given in re-examination that the two gangs working on that day were on the same port, and shared the same smoke room and shared "the same place where everybody meets in the morning".
As to the likelihood that Mr Copperthwaite knew Mr Gill from other interactions at Qube, I have had regard to Mr Kranendonk's examination in chief where Mr Kranendonk said he would see Mr Gill at the picket 70% of the time. I have had regard to Mr Copperthwaite's evidence given in examination in chief that the picket numbers would be no less than 10 people at any given time, and could be up to 40 or 50 people. I accept that Mr Copperthwaite would have passed through the picket line for work each morning.
I have also had regard to the amount of time Mr Gill and Mr Copperthwaite's employment at Qube would have overlapped. The Union has stated that Mr Gill was employed by Qube from on or about 7 September 2007 to 7 December 2021. A record of Mr Gill's work hours between 1 January 2021 and 31 July 2021 has also been tendered. In cross-examination, Mr Copperthwaite agreed that he started working for Qube in March 2021 as a stevedore and was promoted to the position of shift manager in June 2021. This means that there was a period of approximately five months, depending on the exact date Mr Copperthwaite started working at Qube, in which Mr Copperthwaite's and Mr Gill's employment overlapped prior to the events on 24 August 2021.
The parties accept that at all relevant times Qube employed around 139 employees who were eligible to become members of the Union (and many of whom were in fact members of the Union). There was no evidence given about whether there were additional people working at Qube during the industrial action beyond these 139 employees.
Having regard to all the evidence, I consider on the balance of probabilities that Mr Copperthwaite did know Mr Gill generally, and well enough to know of his appearance and nickname, even if he did not know his full name or otherwise much about him. I accept that he would have at least seen Mr Gill a number of times during their overlapping employment at Qube and during that time learned his nickname. In my view, given that he only knew Mr Gill by nickname, it is plausible that he would not have identified "Gilly" in his handwritten note or to the police, and that the reference in the police report to "when they identify who it is that has made the threatening remarks" could mean to identify the person who made the statement with more precision.
I therefore consider that the passage of the further amended outline of evidence excerpted at [100] is correct, save that Mr Copperthwaite had only worked on the same berth as Mr Gill once and they had not worked together "[o]n a couple of occasions".

[241]

I accept that identification evidence can be undermined by the issues set out in the above authorities. I accept that this is particularly the case where the person is shown just a single photograph: see Wood v The Queen [2012] NSWCCA 21; 84 NSWLR 581 at [409] (McClellan CJ at CL); R v Blick [2000] NSWCCA 61; 111 A Crim R 326 at [25]- [29] (Sheller JA). I also accept that it was dark when Mr Copperthwaite saw Mr Gill and that Mr Copperthwaite agreed in cross-examination that it was hard to see who was who because of the spotlights, although I consider this alongside Mr Copperthwaite's other evidence that he had a clear view of Mr Gill because there was "a light right behind my head coming from the communications box at the time". I accept that Mr Copperthwaite may have been in distress at the time the threats were made.
However, I am not satisfied that issues that might accompany identification procedures here undermined the identification of Mr Gill by Mr Copperthwaite. This is because, first, I have found that Mr Copperthwaite knew Mr Gill generally. The distinction between recognition evidence, where the witness recognises someone previously known to him or her, and identification evidence, where the witness subsequently identifies a person whom the witness first saw at the crime scene, has long been recognised: see Williams v The Queen [2019] NSWCCA 53 at [98]- [99] (Gleeson JA). In Davies v The King [1937] HCA 27; (1937) 57 CLR 170, the High Court (at 181) recognised that the amount of care to be taken with evidence "must vary according to the familiarity of the witness with that person".
Second, while I have considered the displacement risk in Mr Kranendonk introducing the photograph to Mr Copperthwaite and asking if he was the person who said the threat, I have balanced this risk against the particular circumstances that (a) Mr Gill admitted that he was there and that he said words to Mr Copperthwaite; (b) there is CCTV footage of the incident showing Mr Gill was there and that he was standing close to Mr Copperthwaite for several minutes; (c) the photograph Mr Kranendonk showed Mr Gill was taken from that CCTV footage; and (d) the evidence given by Mr Kranendonk in cross-examination suggested that he identified Mr Gill in the footage because of Mr Copperthwaite's initial description of Mr Gill's jacket. These circumstances reduce the risk that Mr Copperthwaite's recall of the person who made the threat was "displaced" by being shown the photograph of Mr Gill.
Third, I have had regard to the fact that a period of only one day elapsed between the incident and Mr Copperthwaite's identification of Mr Gill: see, e.g. Marshall v The King [2023] ACTCA 11 at [54] (Mossop, Loukas-Karlsson and Abraham JJ).
I therefore accept that Mr Copperthwaite's identification of Mr Gill in the photograph as the person who made the threat to him on 24 August 2021 was reliable.

[245]

The respondents' submissions draw attention to how I should deal with the evidence. The Union submits that insofar as the Ombudsman's case is circumstantial, it will not be sufficient for the circumstances to give rise to conflicting inferences of equal probability, and that the law does not authorise "a court to choose between guesses ... on the ground that one guess seems more likely than another" and "the facts proved must form a reasonable basis for a definitive conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied": Jones v Dunkel at 305 (Dixon CJ). In oral submissions, Mr Gill submitted that there is a large difference between the Court more readily accepting that events occurred due to Mr Gill not giving evidence and the Court making an inference or finding flowing from Mr Gill's failure to give evidence which is independent of the Ombudsman's evidence. Mr Gill said that his case theory did not need to go as far as that no one yelled at or abused or said any particular words to Mr Coelho and Mr Copperthwaite, or that Mr Gill had to demonstrate that nothing happened and Mr Coelho and Mr Copperthwaite made everything up: he just had to establish that Mr Gill did not make the dead dog statement as pleaded.
The rule in Jones v Dunkel may be applied in pecuniary penalty proceedings such as these: see Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; 258 FCR 257 at [147] (North, Dowsett and Rares JJ); Master Wealth Control Pty Ltd v Australian Competition and Consumer Commission [2024] FCAFC 171; 306 FCR 462 at [38] (SC Derrington, Halley and Shariff JJ). The rule permits an inference that the evidence which could have been given would not have assisted a party, but does not permit an inference that the evidence would have been adverse to the party: Kuhl at [64]. As Mr Gill did not give evidence, it follows that an available inference is that the evidence that he could have given would not have assisted his case concerning whether or not he made the dead dog statement to Mr Copperthwaite.
Having regard to my conclusions above, I do not consider the evidence as to Mr Gill making the dead dog statement to Mr Copperthwaite to be inherently incredible: Precision Plastics at 371. I am mindful that Jones v Dunkel does not permit me to fill any holes in the Ombudsman's case. However, I do make the inference that the evidence that Mr Gill could have given would not have assisted his case. I consider that inference together with all of the other evidence before me in determining whether I can be satisfied that Mr Gill made the dead dog statement.

[254]

Mr Coelho gave evidence that after the protected industrial action ended, and he resumed working with the workers who did not cross the picket line, he was given "the worst jobs ever ... the physical jobs, the real physical jobs, dangerous jobs". This included manually moving sulphur in vessels. Sulphur is held in a vessel in a granulated form like sand. The evidence was that a device named a siwertell extracts most of the sulphur from the vessel but is not able to access edges and ridges in the vessel. After the sulphur is removed, workers go into the vessel and use picks and shovels and excavators to move the sulphur into areas accessible to the siwertell. Mr Coelho gave oral evidence that he was "made to go in there on my own each time, non-stop, day after day".
On the relevant day, Mr Coelho's evidence was that there was a "quarter" of the sulphur left in the vessel which was "about 20 foot deep" and he was instructed, by an unknown supervisor, to jump into the sulphur in the vessel to shovel and pick on his own. Mr Coelho said that he jumped into the sulphur and "went straight down to hell". I understood him to mean that he sank into the sulphur. However, despite being submerged, Mr Coelho said he could "touch the floor with [his] tippy toes" and only "sunk a little bit". He said that the man who instructed him to jump was then scared of Mr Coelho "going down". He said he was instructed not to move and a cage was connected to the siwertell and was used to get him out. In cross-examination, he said that he "sank till [he] hit the bottom" and that the sulphur went up to his chest and that his arms were free, and that he grabbed the cage with both hands.
I accept that Mr Coelho's evidence about the "sulphur" is inconsistent. Mr Coelho initially said that the sulphur was "20 foot deep" but he also said that he could touch the floor with his "tippy toes" after he sunk in the sulphur. He explained this by saying that there was "20 foot on the side" and that he had jumped in "half of that - I jumped in - it would have been a third of that same, a third of that".
The Union also tendered two videos of a man jumping into sulphur in a similar way to that described by Mr Coelho. The man in the video did not sink into the sulphur. Mr Coelho's initial response to being shown the video was that that was "exactly what happened to me". Mr Coelho later resiled from that and said the video was "staged" for the hearing, and that he jumped into the sulphur "forwards" rather than "backwards" as was shown in the video. Mr Kranendonk, who did not work on sulphur ships himself, but was responsible for them as Western Australia Manager, agreed with the proposition that it was "impossible" to sink to the bottom of sulphur.
The Ombudsman submits that the sulphur is an "ancillary issue" and is "far from being a central issue in the case". The Ombudsman submits that it is unknown whether it was actually sulphur shown in the video, and if it was, what the "conditions" and "properties" of the sulphur in the video were. The Ombudsman submits the videos are of no or very limited probative value. Further, she submits that Mr Kranendonk had never worked on a sulphur ship so his evidence about it should not be accepted. The Ombudsman submits that Mr Coelho's evidence was not that he had suggested that a person would sink like quicksand in sulphur every single time, but just that he said it can happen.
The respondents submit that Mr Coelho's description of the sulphur incident was a "bald-faced lie". The respondents submit that Mr Coelho's inconsistent accounts of the incident undermined his reliability generally, and that the sulphur event itself is "completely destructive" of Mr Coelho's credit and of itself justifies not accepting any of Mr Coelho's evidence.
Overall, I am not satisfied that the "sulphur" incident was an invention from Mr Coelho. I accept the Ombudsman's submission that I do not know the circumstances in which Mr Coelho said he sunk into the sulphur and I do not know the circumstances in the videos tendered by the Union. Given the inconsistencies in Mr Coelho's account, I do not accept the incident happened as described by Mr Coelho but I do not accept that it was a "bald-faced lie". It is not necessary for me to determine with precision how the incident occurred. The incident was relied upon to undermine the other evidence of Mr Coelho. As I say above, there were occasions where it appeared Mr Coelho had exaggerated some aspect of his evidence. However, that does not cause me to doubt the substance of his evidence where it accorded with other evidence. I do not approach Mr Coelho on the basis of "false in one thing, false in everything". The evidence of the sulphur incident does not change that assessment.

[255]

Mr Coelho gave evidence in chief that on 20 December 2021, a man confronted him on the minivan transporting workers at the Harbour. Mr Coelho said the man approached the driver and asked: "Who have you got for us today?". He said the driver answered: "We got this fucking rat again". Mr Coelho said the man then boarded the bus and "threw himself on his hands and knees ... right up to me". He said the man was "insulting me, asking me to, you know - like, he basically wanted me to throw a punch" and was saying: "Give me a reason to smack you out". Mr Coelho said the man then hit Mr Coelho's bag and that Mr Coelho's helmet bounced off the seat and hit Mr Coelho. Mr Coelho described this as an accident. He said the confrontation continued when they both got off the minivan and the man was "just pushing with his head", and that he was trying to get Mr Coelho to strike him and that he said: "I'm coming for you mate". He said a crowd gathered and the two were separated. He said the man then said Mr Coelho's home address. Mr Coelho said this was the same man that made the handgun gesture to him on 24 August 2021. Mr Coelho reported the incident to Mr Kranendonk.
The Union submits that this account is "fundamentally different" to what Mr Kranendonk recorded in a contemporaneous file note of a conversation with Mr Coelho on the day of the incident. In an email on 20 December 2021, Mr Kranendonk stated that he had received a phone call from Mr Coelho, where Mr Coelho advised that he had been harassed by another worker. Mr Coelho is said to have told Mr Kranendonk that he "wasn't fazed about ... [the worker's] demeaner (sic) but was worried when he stated [Mr Coelho's] home address, [Mr Coelho] had gone straight to the police to place a restraining order on the worker as he was in fear of his wife and daughter's safety". Further Mr Coelho said that the worker "had threatened him and grabbed [Mr Coelho's] helmet [off] him and then threw it at him".
Consistent with my general observations about Mr Coelho, it appears there was some exaggeration in Mr Coelho's account to Mr Kranendonk. That does not cause me to doubt the existence of the incident. Again, I accept Mr Coelho's evidence where it is supported by other evidence. I accept that there was an incident on the minivan on 20 December 2021. Again, it is not necessary for me to determine with precision how the incident occurred. I do not accept that Mr Coelho's inconsistencies about that incident undermine all of his evidence on this event and more broadly.

[264]

(1) My findings that Mr Copperthwaite was credible and largely consistent with his written record and conduct on and after that day regarding the important aspects of the statements made to him on 24 August 2021. I also found that he was certain in respect of his exchange with Mr Gill (at [18]);

(2) My acceptance of the substance of Mr Coelho's evidence of the events on 24 August 2021 where it accords with other evidence (at [21]);

(3) The unanswered evidence of Mr Kranendonk as to the events immediately following the conversation between Mr Gill and Mr Copperthwaite, and my finding that Mr Kranendonk was a witness who gave frank and forthright evidence (at [23]);

(4) My review of the CCTV footage and my finding that the footage is consistent with the evidence of Mr Copperthwaite about the physical location of him and Mr Gill, including that Mr Gill was within 30-60 centimetres of Mr Copperthwaite for a few minutes (at [89]);

(5) The written accounts of the events, namely Mr Copperthwaite's file note on 24 August 2021, the police incident report, Inspector Tonev's file note of his conversation with Mr Copperthwaite on 24 February 2022, the amended outline of evidence to be given by Mr Copperthwaite dated 24 May 2024 and the further amended outline of evidence to be given by Mr Copperthwaite dated 29 June 2024;

(6) My finding that there were no fundamental inconsistencies in the contemporaneous and near contemporaneous accounts of the incident which would preclude me from accepting that the words were said (at [92]);

(7) My finding that Mr Copperthwaite knew Mr Gill generally, and well enough to know of his appearance and nickname even if he did not know his full name (at [109]), and my finding that Mr Copperthwaite's identification of Mr Gill in the CCTV image was reliable (at [122]). These findings point towards the likelihood that if the dead dog statement was made, it was made by Mr Gill;

(8) The concession that Mr Gill was present at the Gate and spoke with Mr Copperthwaite (at [113]);

(9) The inference I have drawn per Jones v Dunkel that the evidence which Mr Gill could have given, but failed to give, would not have assisted his case (at 127]); and

(10) The evidence of events that immediately followed Mr Gill's conduct on 24 August 2021, particularly the reporting by Mr Copperthwaite to Mr Kranendonk, reporting by Mr Copperthwaite to the police, and the provision of security and a hire car to Mr Copperthwaite.

[266]

The words pleaded in [70(a)] of the Amended Statement of Claim are "scab", "dog" and "I know where you live". The pleading alleges those words were said by "the picketers (including Gill)".
There was no oral evidence lead by the Ombudsman that specifically attributed these words to Mr Gill. Mr Copperthwaite's evidence was that on 24 August 2021 there were "roughly 30 people" at the Gate, and as he was "approaching the gate to walk back in" the picketers "all started barking, yelling out, "you're a dog". His evidence does not attribute these statements to Mr Gill. Mr Coelho's evidence was that: "I was in my car with my window down, and as usual, they were just hurling abuse. 'I'll kill you, scab, dog. I know where you live. I know how many kids you got.' Just stuff like that, your Honour". Mr Coelho's evidence also does not attribute these words to Mr Gill. Mr Coelho gave evidence that, when Mr Copperthwaite asked him if he had heard what "Gilly" said, Mr Coelho said "I didn't hear what he said. I don't know the bloke. I didn't even see who he was".
There was also no documentary evidence lead by the Ombudsman that specifically attributed the words to Mr Gill. This includes Mr Copperthwaite's account to Inspector Tonev in which Mr Gill is otherwise identified as making the dead dog statement. The evidence relied upon by the Ombudsman identified the words being said by "they", "the picketers" and "the crowd".
As set out above, findings of a contravention of civil penalty provisions should not be lightly made, and should not be made based on "inexact proofs, indefinite testimony or indirect inferences".
In circumstances where I have found that at least 22 picketers arrived at the Gate on the morning of 24 August 2021 (which I explain in more detail at [335]-[336] below), and there is no evidence led which attributes the words in [70(a)] of the Amended Statement of Claim to Mr Gill, I cannot be satisfied on the balance of probabilities in accordance with s 140 of the Evidence Act that Mr Gill said the words alleged.

[314]

The Ombudsman also alleges that the action was taken with the intent to negate the choice of Mr Copperthwaite to comply with a lawful request of the Union to participate in the picket and to represent or advance the views, claims or interests of the Union. However, given my conclusions which follow on the combination of [195(1)-(4)], it is not necessary for me to consider those allegations.
The Ombudsman says the dead dog statement amounts to a breach of s 348 of the Act as Mr Gill made this statement with the intent to coerce Mr Copperthwaite to engage in industrial activity. Mr Gill advances two main arguments against this. First, Mr Gill submits that the Ombudsman has not adduced evidence consistent with the hypothesis that Mr Gill had the relevant intent because there is no evidence to suggest the Union or Mr Gill or any other person had any interest in recruiting Mr Copperthwaite to the picket or any union cause, or that the dead dog statement could conceivably persuade Mr Copperthwaite to join the picket or take unlawful industrial action, and that therefore the Ombudsman has not engaged the reverse onus, citing General Motors-Holden v Bowling (1976) 51 ALJR 235 at 241. Second, he alleges deficiencies in the pleading, namely that the Ombudsman has not pleaded that (a) Mr Copperthwaite could lawfully participate in industrial action or the picket; (b) the Union made any request of Mr Copperthwaite; and (c) Mr Copperthwaite was capable of advancing the industrial objectives of the Union.
I do not accept the submissions of Mr Gill.
Dealing with the first argument, I am satisfied that the evidence adduced is consistent with the hypothesis that Mr Gill intended to coerce Mr Copperthwaite to not continue working, including by carrying out the duties of a stevedore, during the period of the picket. Having found that the words "You'll end up dead dog if you keep going like this" were said, I am satisfied that these words are consistent with the hypothesis that Mr Gill said them with intent to coerce Mr Copperthwaite to not continuing working. Further, and as I will turn to in more detail below, the evidence establishes that some of the picketers expressed their objection to the decision of Mr Copperthwaite and Mr Coelho continuing to work through the period of the picket; it establishes that the words "dog" and "scab" were directed to both of them. That term scab has a long history. The Oxford English Dictionary defines its extended use as: "a person who refuses to join a strike or who takes over the work of a striker". It cites Bonner & Middleton's Bristol Journal from July 5, 1777, as the first use in that context:

[322]

The Ombudsman then alleges that at the time of the 24 August 2021 Actions (which includes the Gill 24 August 2021 Action), Qube had a right to "participate in the Bargaining" and that that right was a "workplace right" within the meaning of the Act. The Amended Statement of Claim defines the "Bargaining" as "bargaining in relation to a proposed enterprise agreement that would cover various employees".
Returning then to the definition of "process or proceeding under a workplace law or workplace instrument", that definition does not expressly include "bargaining in relation to a proposed enterprise agreement" but the Ombudsman submits that such a right is covered. In support of that position the Ombudsman relies upon the decisions of Lee J in Transport Workers' Union of Australia v Qantas Airways Limited [2021] FCA 873; 308 IR 244 at [282]; Transport Workers' Union of Australia v Qantas Airways Limited (No 2) [2021] FCA 1012; 308 IR 333 at declaration [1] and the consideration of those decisions on appeal by the Full Court and High Court (Qantas decisions). She also relies upon the decision of Gilmour J in Murdoch University v National Tertiary Education Industry Union (No 2) [2017] FCA 1507 at [74]- [90].
Dealing first with the Qantas decisions, those cases concerned the decision by Qantas Airways Limited to outsource ground handling operations work at Australian airports to a number of third parties. This decision adversely affected employees doing that work. The allegations made against Qantas included an allegation that the action taken against those affected employees was because they had, or had exercised or proposed to exercise, a workplace right to "participate in bargaining". Lee J concluded that the outsourcing decision contravened the Act because it was made for reasons that included a proscribed reason, namely, preventing the exercise by the affected employees of their workplace right to organise and engage in protected industrial action and participate in bargaining, because Qantas had not discharged the onus imposed by s 361 of displacing that as a substantial and operative reason.
Before his Honour, and on appeal, the parties did not dispute that the participation in bargaining could constitute a workplace right for the purposes of the Act. It was not in issue in those cases. That was accepted by the Ombudsman. I therefore consider that these cases carry little weight in allowing me to accept that participation in enterprise bargaining is a workplace right. As was explained by McHugh J in Coleman v Power [2004] HCA 39; 220 CLR 1 at [79]:

[326]

Whilst his Honour was considering the matter in the context of a strike out application, I consider that as a matter of comity I am bound to follow his Honour unless I determine that he was plainly wrong: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 at [3]- [14]; [21] (Allsop CJ). I am not satisfied that he was plainly wrong. It is open to interpret the words "any other process ... under a workplace law or workplace instrument" in s 341(2)(k) to refer to the process of enterprise bargaining. Neither the Union nor Mr Gill submit that Murdoch is incorrect, outside of Mr Gill's submission that the Ombudsman has not identified in her pleading the source of its right to enterprise bargaining. In light of Murdoch, I consider that Qube had a workplace right to participate in enterprise bargaining for the purposes of s 341(2)(k).
That said, I also consider that participating in enterprise bargaining could be a workplace right under s 341(2)(e). There could be scope for the word "making" in the context of "making, varying or terminating an enterprise agreement" in s 341(2)(e) to extend to participating in enterprise bargaining. The language in s 341(2)(e) does not suggest that the word "making" should be narrowly confined to an employer's right to request employees to approve a proposed enterprise agreement under s 181, as the respondent union in Murdoch argued. In my view, the word "making" could extend to the necessary processes leading up to the enterprise agreement being "made" under s 182. However, it is ultimately unnecessary for me to decide in the present case whether participating in enterprise bargaining could be a workplace right under s 341(2)(e) in circumstances where I do not consider that Murdoch is plainly wrong.
As set out above I am satisfied that Mr Gill made the dead dog statement to Mr Copperthwaite as pleaded. I am satisfied that that was the taking of an action for the purposes of the Act. Having regard to the above I am also satisfied that participating in enterprise bargaining constitutes a workplace right.
I have already concluded that the actions of Mr Gill were objectively unlawful, illegitimate or unconscionable: at [192] above. The next question is whether the action taken by Mr Gill (the dead dog statement to Mr Copperthwaite) was not only taken with a subjective intention to negate the choice of Mr Copperthwaite, but also to negate the choice of Qube, in relation to its workplace rights. The Ombudsman relies on the reverse onus contained in s 361 of the Act which presumes the action was taken with the unlawful intent unless Mr Gill proves otherwise. I consider that Mr Gill making the dead dog statement to Mr Copperthwaite is consistent with the hypothesis that Mr Gill intended to negate the choice of Qube in relation to its participation in enterprise bargaining given Mr Copperthwaite was an employee of Qube who continued to attend work during the industrial action. Having regard to the fact that Mr Gill did not give any evidence to discharge the onus, I am satisfied that Mr Gill made the dead dog statement to Mr Copperthwaite with a subjective intention of negating Qube's choice in relation to its workplace rights.

[334]

As a result, it is alleged that Mr Gill contravened s 346 of the Act.
As I have said at [196] above, the Ombudsman also alleges that Mr Gill took actions on 24 August 2021 against Mr Copperthwaite because he had not engaged, or had until then not engaged, or proposed to not engage, in complying with a lawful request made by, or requirement of, (within the meaning of s 347(b)(iv) of the Act) the Union (that is participating in the picket and/or industrial action) and representing or advancing the views, claims or interests (within the meaning of s 347(b)(v) of the Act) of the Union. As I explained at [201], if I find just one of the reasons pleaded by the Ombudsman to be the reason for the adverse action then that is enough. I do not have to be satisfied that the adverse action was taken because of all the pleaded reasons.
Mr Gill points to alleged deficiencies in the pleadings. He says these are matters of substance and not "mere" pleading points. Mr Gill says that the Ombudsman has elected to plead that the broader "24 August 2021 Actions", comprising both the "Gill" and "non-Gill" conduct, caused Mr Copperthwaite and Mr Coelho to experience fear, anxiety and upset. Mr Gill submits that having done so, it was necessary for the Ombudsman to plead consistently that the broader 24 August 2021 Actions were motivated by a relevant prohibited reason, and she has not done so.
I do not find this submission persuasive because I do not read the Ombudsman pleadings in the same way. I consider that the passage at [81] of the Amended Statement of Claim, which pleads that Mr Gill participated in the 24 August 2021 Actions for the purpose of causing Mr Copperthwaite and/or Mr Coelho to experience fear, anxiety and upset, is sufficient to be a pleading that Mr Gill's actions on 24 August 2021 had that impact on Mr Copperthwaite and Mr Coelho. Having made this pleading about the impact on Mr Copperthwaite and Mr Coelho, the Ombudsman then pleads Mr Gill took adverse action by his conduct on 24 August 2021 for the reasons outlined at [222]-[223] above. In my view, the pleadings are not so deficient so as to preclude me from finding Mr Gill liable under s 346 in respect of Mr Copperthwaite.
As to Mr Gill's other arguments regarding deficiencies in the pleadings, I find that, first, the fact that the Ombudsman's pleadings appear to plead inconsistent propositions rather than "in the alternative" and second, that the allegation that the picket was not unlawful and there is no evidence that the Union organised unlawful industrial action, both do not mean that the claim must fail. This is because, again, if just one of the pleaded reasons is established then that is sufficient to be the prohibited reason for a s 346 claim. Consistent with the discussion at [201] above, I am satisfied that the dead dog statement was action taken because Mr Copperthwaite had not engaged in taking part in industrial action within the meaning of [222(3)] and [222(4)] above.
Mr Gill did not give any evidence to discharge the reverse onus in s 361. I am satisfied that the evidence adduced is consistent with the hypothesis that Mr Gill made the dead dog statement to Mr Copperthwaite because Mr Copperthwaite had not engaged in taking part in industrial action within the meaning of [222(3) and (4)] above.
As to whether there has been the requisite adverse action, I am satisfied that, in making the dead dog statement to Mr Copperthwaite, Mr Gill took adverse action against Mr Copperthwaite. Consistent with comments at [185], I accept that emotional harm, fear and distress in the workplace can constitute prejudicial alteration in a person's employment within the meaning of s 342(1).
I therefore find that Mr Gill has contravened s 346 of the Act in respect of Mr Copperthwaite.

[354]

Relevantly, s 363(1)(b) provides that action taken by an agent of an industrial association acting in that capacity is taken to be action of that industrial association.
Section 793(1) relevantly provides that any conduct engaged in on behalf of a body corporate by an agent of the body corporate within the scope of his or her actual or apparent authority, or by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body corporate, if the giving of the direction, consent or agreement is within the scope of official's actual or apparent authority, is taken to have been engaged in by the body corporate.
I deal first with the allegation that Mr Gill was in a "representative role or capacity". I understood this submission to be directed at s 363(1)(b). Whilst the Ombudsman alleged that was so by matters "including" Mr Gill's participation in "meetings", the only evidence relied upon was Mr Gill's appearance at one bargaining meeting. Evidence of Mr Gill's attendance at that bargaining meeting was given by Mr Kranendonk in his evidence in chief. However, in cross-examination, Mr Kranendonk's evidence was that Mr Gill "appeared on the screen" at the commencement of the bargaining meeting (held by Teams) and was asked to leave the meeting by a representative of Qube because of the allegations (arising from the events of 24 August 2021) made against him. Mr Gill complied with the request. He did not participate in the meeting. There was no evidence about the capacity in which Mr Gill "appeared on the screen" or the role that he intended to play in the meeting. There was no other evidence about how it was alleged that Mr Gill was in a "representative role or capacity" in "terms of representing the objects and interests of the [Union] in respect of the Fremantle Port Dispute".
I am not satisfied that the evidence establishes that Mr Gill was in a representative role or capacity.
On the allegation that Mr Gill was an agent of the Union, the Ombudsman submits that the reference to an agent in s 793 (and s 363) should be given its ordinary and natural meaning, which it submits is "a person acting on behalf of another". The Union submits that the word "agent" in ss 793 and 363 should be given its established legal meaning.
The word "agent" is not defined in the Act. Its meaning is to be determined by reference to the purpose of the Act and the object of and context in which reference to the term is made: see G E Dal Pont, Law of Agency, 4 ed, 2021 at 1.7. However, there is a presumption that where a statute uses a word with an established legal meaning, that is the meaning that the word should have unless the context suggests otherwise: see Lo v Russell [2016] VSCA 323 at [46] (Warren CJ, Tate and McLeish JJA) footnoting A-G (NSW) v Brewery Employees Union of New South Wales [1908] HCA 94; (1908) 6 CLR 469 at 531 (O'Connor J); Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; 195 CLR 566 at [45] (Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; 221 CLR 249 at [25] (McHugh, Gummow, Hayne and Heydon JJ).
The Union relies on that presumption and submits that nothing in ss 363 or 793 indicates any intention to depart from the established legal meaning. It says further that text and context establish that the word agency should have its established legal meaning as opposed to the word's ordinary meaning as "a person acting on behalf of another". The Union submits that, first, that meaning would render the words in the chapeau of s 793 "on behalf of a body corporate" otiose. Second, the words "within the scope of his or her actual or apparent authority" are nonsensical unless applied to the established legal meaning of agent.
I accept that the word "agent" should be given its established legal meaning. There is nothing in the Act to indicate that it should not. The text, for the reasons the Union submits, supports the established legal meaning. The presumption that it should have its established legal meaning is not displaced.
Ordinarily the party who alleges the existence of an agency relationship bears the burden of proving that relationship and of establishing whether or not the agent acted within the scope of their actual or apparent authority: see G E Dal Pont, Law of Agency, 4 ed, 2021 at 1.10 citing McLaughlin v Daily Telegraph Newspaper Co Ltd [1904] HCA 51; (1904) 1 CLR 243 at 276 (Griffith CJ); Baker v Taylor [1906] NSWStRp 103; (1906) 6 SR (NSW) 500 at 502-503 (Street J); Cadd v Cadd [1909] HCA 59; (1909) 9 CLR 171 at 187 (Isaacs J); Hoare v McCarthy [1916] HCA 65; (1916) 22 CLR 296 at 303 (Griffith CJ); Clayton Robard Management Ltd v Siu (1988) 6 ACLC 57 at 59 (Kirby P).
The allegation that Mr Gill is an agent of the Union is not particularised. The allegation that Mr Gill took the Gill 24 August 2021 Action in his capacity as an agent of the Union is particularised as being inferred from:

[356]

I understand this pleading to contend that these particulars are to be read cumulatively. Out of caution, I have considered them both cumulatively and separately.
An agency relationship may be created at least by agreement (express or implied), by subsequent ratification, or by operation of law. I understand the submissions of the Ombudsman as alleging that the agency relationship was created by agreement, implied by the conduct or situation of the parties. I say that because the particulars to the paragraph alleging that Mr Gill took the 24 August 2021 action in his capacity as an agent for the Union are directed to the conduct or situation of the parties that might be said to constitute an implied agency agreement, rather than agency by express agreement, ratification or operation of law.
There are at least two elements commonly identified as essential to recognising an agency relationship. First, the consent of both the principal and agent. Second, the authority given to the agent to act on the principal's behalf.
Consent requires the acceptance by the agent of the mandate from the principal. An agency relationship can only be established by the consent of both the principal and the agent (whether actual or implied): see Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29; 296 ALR 465 at [54] (North, Cowdroy and Katzmann JJ). In Field v Shoalhaven Transport Pty Ltd [1970] 3 NSWR 96 at [103], Asprey J said that the principal must intend that the agent will act for him or her, and the agent must intend to accept and act on the authority. Of course, the establishment of such intention, and the existence of agency, will depend on the facts of each case. However, the parties need not actually use agency language for the law to infer an intention to create an agency relationship, and there need not be a positive act by the principal and the agency may be created by the principal's acquiescence.
Authority requires that the agent be in some way authorised to act on behalf of the principal: see NMFM Property Pty Ltd v Citibank Ltd (No 10) [2000] FCA 1558; 107 FCR 270 at [522] (Lindgren J). The authority may be express or implied. That is, implied from the conduct of the parties and the circumstances. The authority might provide the agent with authority for limited or specific purposes and not in all circumstances. It does not deny the agent all capacity to act in their own right.
Dealing separately with the particulars to the allegation of agency. Particular (a) relies upon Mr Gill's "presence at the Picket on 24 August 2021". There was no dispute that Mr Gill was present at the picket on 24 August 2021. Insofar as that fact is intended to separately establish agency, it is inadequate in establishing consent and authority. Insofar as it is said to cumulatively do so, that is considered further below.
Particular (b) relies upon the nature of the "Gill 24 August 2021 Action". The Gill 24 August 2021 Action is constituted by the alleged conduct that Mr Gill engaged in on that day (as a subset of all the alleged conduct engaged in by the picketers). By reference to the Amended Statement of Claim, that can only be making barking sounds and yelling the words "scab", "dog" and "I know where you live" towards Mr Copperthwaite and Mr Coelho when Mr Copperthwaite arrived at the Gate. Then, Mr Gill getting within 30 centimetres of Mr Copperthwaite and saying to him: "You'll end up dead dog if you keep going like this". I am not satisfied that conduct establishes the requisite consent and authority of an agency relationship. There is nothing in that conduct that might be said to establish consent between the Union and Mr Gill. There is nothing in that conduct that, expressly or impliedly, authorised Mr Gill to act on behalf of the Union.
Particular (c) relies upon "the matters in Part A10" of the Amended Statement of Claim. That part contains two paragraphs. The first alleges that Mr Gill was employed by Qube until December 2021 and that his employment was terminated as a consequence of his conduct on 24 August 2021. The second alleges, without particularisation, that Mr Gill was a member, agent, and representative of the Union. Those matters are not, of themselves or together, adequate to establish an agency.
Particular (d) relies upon "the matters in Part B" of the Amended Statement of Claim. Part B describes the industrial dispute between Qube and the Union, including describing the conduct of the picketers at the picket, the participation of Union officials in the picket, and the social media campaign undertaken by the Union at the time of the picket. I do not consider that these facts are enough, in themselves, to establish an agency relationship between Mr Gill and the Union.
Particular (e) relies upon "Gill's knowledge at the time of the matters in Part B, including his knowledge of some or all of the Media Campaign". I do not consider that Mr Gill's knowledge alone of any or all of the matters in Part B establishes the requisite consent and authority of an agent relationship.
Considering the particulars cumulatively, I am not satisfied that an agency relationship existed between Mr Gill and the Union. I do not see how the particulars establish the Union intended that Mr Gill act for it, or that Mr Gill was authorised to act for the Union.
At the hearing, the Ombudsman submitted further that because the Union did not condemn the conduct at the picket in the lead-up to 24 August 2021, and allowed the social media campaign to "inflam[e] the situation", this was an ingredient that pointed towards an agency agreement between everyone attending the picket thereafter, including Mr Gill, and the Union. She says the Union and the picketers shared a "common purpose". I am not satisfied that the failure to condemn conduct at the picket, or sharing a "common purpose", is sufficient to demonstrate the consent of both the Union and Mr Gill to an agency agreement, nor is it sufficient to demonstrate that Mr Gill had the authority to act on behalf of the Union.
I am not satisfied that the Ombudsman has established that Mr Gill took the 24 August 2021 Action in his capacity as an agent for the Union.

[358]

Having found that no agency relationship was created, it is not necessary for me to determine whether Mr Gill was acting within the scope of his actual or apparent authority in the alleged agency relationship. However, for completeness (and in the event that I am wrong about the establishment of an agency relationship) I add the following comments.
It is not sufficient to allege agency alone; it is necessary to determine what the agent is authorised to do.
As set out above, the party who alleges the existence of an agency relationship bears the burden of proving that relationship and of establishing whether or not the agent acted within the scope of their actual or apparent authority.
Actual authority requires the consent of both the principal and agent, although the manifestation of that consent may be express or implied: Mpinda v Fair Work Commission (No 2) [2024] FCA 692 at [16] (Feutrill J). The scope of the agent's authority is a question of fact to be determined by the evidence, including authority inferred from established facts: Mpinda at [16] citing Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131; 220 ALR 211 at [124]- [126] (Branson, Nicholson and Jacobson JJ) and the authorities there cited.
The Ombudsman has not explained the basis upon which it alleges that both the Union and Mr Gill consented to the actual authority of Mr Gill. She does not identify the evidence she relies upon to establish actual authority beyond merely restating the particulars provided at [120] of the Amended Statement of Claim, as provided in [256]. I am not satisfied that the facts established in this case make out such authority.
As to apparent authority, it is necessary for the Ombudsman to establish that the Union held out, in some way, that Mr Gill had authority to act on its behalf at the picket and that third parties (such as Mr Copperthwaite and Qube) relied on that holding out and that their reliance was reasonable: Pourzand v Telstra Corporation Ltd [2014] WASCA 14 at [83]- [84], [86] (McLure P), [131] (Murphy JA); see also British Marine PLC v Wollongong Coal Ltd [2015] FCA 403 at [213] (Buchanan J). Establishing reliance is a subjective question of fact, whilst establishing that the reliance was reasonable imports an objective standard: Mpinda at [18] (Feutrill J) citing Pourzand at [83]-[84], [86] (McLure P), [113], [115] (Pullin JA) [128]-[131] (Murphy JA), and the authorities there cited.
The Ombudsman has not explained the basis upon which she alleges that the Union held out that Mr Gill had authority to act on its behalf. She has not explained the basis upon which reliance is said to be established or the reasonableness of that reliance. She does not identify the evidence she relies upon to establish apparent authority, save for referencing the particulars stated in [256]. I am not satisfied that the facts established in this case make out apparent authority.
Recently, in Bird v DP [2024] HCA 41; 419 ALR 552 the High Court examined whether the Roman Catholic Diocese of Ballarat was vicariously liable for the assault and sexual abuse of a Catholic priest from a church within the Diocese. When examining the issue of agency, Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ stated at [35]:

[360]

Likewise, here, for the reasons explained above, there is no evidence to establish that the actions of Mr Gill were done with the Union's express, implied or apparent authorisation, and at no time were his acts ratified by it.
In her closing submissions, the Ombudsman relied on s 363(1)(c)(iii) of the Act. That section relevantly provides that action taken by a member of an industrial association will be taken to be action taken by the industrial association if the action was authorised by an officer of the industrial association acting in that capacity. The Ombudsman says here that an officer of the Union authorised the conduct of Mr Gill in several ways. First, the attendance of officers on particular days. Second, the "broken bricks" email is evidence of authorisation because it is an indication of violence and there is no evidence the Union responded to that email. The Ombudsman therefore submits that by not responding, the Union gave a licence to Mr Gill to do whatever he saw fit. Third, the evidence of Mr Coelho given to Inspector Tonev where it is recorded that "on a daily basis, the picketers verbally shouted to me entering the ports saying ... 'I'm coming to get you' [and] 'I know how [many] kid[s] you have'". The Ombudsman submits those statements were threats of violence. Fourth, the failure by the Union generally to prevent abusive, intimidatory or threatening conduct on the picket in the lead up to 24 August 2021, and the fact that Mr Gill engaged in that very same type of conduct. Fifth, the "implicit or express endorsement" of Mr Gill's conduct by organising his attendance at a bargaining meeting after 24 August 2021. Sixth, the Union failing to take steps to investigate whether Mr Gill engaged in the 24 August 2021 conduct that was alleged against him by Qube.
As to the first and third ways, there was no assessment of the days officers were said to be in attendance and the days that threats were said to be made. As set out above, Mr Kranendonk gave evidence that he attended at port locations 90% of the time and he identified certain officials present on 70% of those occasions. However, his evidence described "banter" rather than threats and that the picketers were not "disgruntled towards" him. Mr Coelho's evidence about what was said to him did not include evidence that there were Union officials present at those times. Even accepting that officials regularly attended, I am not satisfied on the evidence that the officials heard and authorised the threats that Mr Coelho describes.
Likewise, I am not satisfied that the Union's lack of response to Mr Gill's email about "broken bricks" is sufficient to establish authorisation by the Union for Mr Gill's conduct. Mr Gill's email was in reply to Mr Brett's email of 8:22 pm on 25 July 2021 notifying members of protected industrial action. The reply was sent 40 minutes later at 9:02 pm and read:

[362]

There was no evidence that Mr Brett, or anyone else at the Union, read the email and no evidence from Mr Brett as to how he viewed it. There was no evidence about whether he knew Mr Gill or knew anything about Mr Gill's nature or behaviour at the time he received the email. However, as Mr Brett did not give evidence, it follows that an available inference is that the evidence that he could have given would not have assisted the Union's case concerning whether, by its silence, the Union authorised Mr Gill to make the threat that he made. However, even accepting that inference, the question remains whether the email is sufficient, alone or with other matters, to establish that the Union authorised Mr Gill to engage in the threat that he made. The conduct in the email is not the same as the conduct engaged in by Mr Gill. The Ombudsman appears to submit that the email forecasts the inevitable use of violence. There is at least some doubt about what Mr Gill intended to do with the broken bricks or, read in the context of the whole email, as to the seriousness of Mr Gill's remarks. By his intention, I mean whether he intended to use the bricks as an obstruction or weapon. By the context, I mean the tone across the whole email, including the "hope you are well mate", detracts from the menace suggested by the Ombudsman. I am not persuaded that one unanswered email of that sort, even with the other matters above, is a sufficient basis to conclude that the Union authorised Mr Gill to make the threat that he made or as the Ombudsman also alleges to do whatever he saw fit.
As to the fourth, I am not satisfied that any alleged failure by the Union to prevent abusive, intimidatory or threatening conduct, coupled with Mr Gill's subsequent engagement in that conduct, is sufficient to establish authorisation by the Union for Mr Gill's conduct. Similarly, as to the sixth, I am not satisfied that an alleged failure to take steps to investigate Mr Gill's conduct demonstrates authorisation to engage in that conduct.
As to the fifth, I do not see how attendance at a bargaining meeting that occurred after the events of 24 August 2021, in which Mr Gill "appeared on the screen" and was subsequently asked to leave the meeting by a representative of Qube, is in any way a sufficient basis to conclude that Mr Gill was authorised by the Union to engage in the Gill 24 August 2021 Action.
Insofar as these matters are relied on to cumulatively establish that the Union authorised the Gill 24 August 2021 action, I am also not satisfied.

[370]

That allegation is particularised as being inferred from the facts and matters at Parts B and D of the Amended Statement of Claim. As noted above, those Parts describe the industrial dispute that led to the proceeding and the 24 August 2021 Actions. The Ombudsman's written submissions did not maintain (d), that the Union conspired with Mr Gill and/or others to effect the contraventions.
Dealing first with (a), a person "aids and abets" a contravention of another if the person was present at the contravention and took some part in it, whereas the words "counsel and procure" refer to the person who, although not present at the contravention, encouraged its commission: Huddy at [444] (White J) citing Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 480 (Gibbs CJ); and Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd (No 2) [2005] NSWSC 267 at [115] (Palmer J). There was no direct evidence that the Union, through its officers, agents or employees, was present and took some part in Mr Gill's contraventions. Likewise, there was no evidence that an officer, agent or employee of the Union, although not present, encouraged Mr Gill's conduct. The Ombudsman submits those matters are supported by inferences from Parts B and D of the Amended Statement of Claim. She does not explain how that is so other than asserting it in the Amended Statement of Claim and her closing submissions. I am not satisfied such an inference arises.
Dealing then with (b). The Macquarie Dictionary (9th ed, 2025) defines "induce" as "to lead or move by persuasion or influence, as to some action, state of mind etc: to induce a person to go". This definition was relied on by the Full Court in BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430; 102 FCR 97 at [62] (Black CJ, Beaumont and Ryan JJ) in the context of s 298M of the Workplace Relations Act 1996 (Cth). There was no evidence of any person (whether an officer, employee or agent of the Union or otherwise) that moved Mr Gill by persuasion or influence to engage in the Gill 24 August 2021 Action. I am not satisfied that such an inference arises.
As to (c), to be knowingly concerned in a contravention, the person must have engaged in some act or conduct which "implicates or involves him or her" in the contravention so that there be a "practical connection between" the person and the contravention: Huddy at [445] and the cases there cited. There is no evidence implicating or involving any such person (whether an officer, employee or agent of the Union or otherwise) in Mr Gill's contraventions.
I should add that authority establishes, and the Ombudsman accepts, that the reverse onus provisions set out at s 361 of the Act do not apply to claims against accessories under s 550: Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; 248 FCR 18 at [448] (Jessup, Rangiah and White JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [59] (Greenwood, Flick and Rangiah JJ). Section 361 is directed at the primary contravener's reason for acting. Section 550 is directed at the accessory's conduct and knowledge of the essential elements constituting the relevant contraventions: see, e.g. Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740 at [10]- [13] (Flick J) and the authorities there cited.
Insofar as the Ombudsman was able to establish accessorial liability, which I am not satisfied she has, she would be required to establish that the Union had knowledge of the essential elements constituting the contraventions by Mr Gill of ss 343, 348 and 346.

[374]

The Ombudsman submits that s 793 does not operate to exclude common law vicarious liability. This is correct: see Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188; 100 FCR 530 at [61]- [62] (Ryan, Moore and Goldberg JJ). The Ombudsman then says that Edelman and Steward JJ in CCIG Investments Pty Ltd v Schokman [2023] HCA 21; 287 CLR 165 describe three areas of law which have been "described" as "vicarious liability" and that each of them operate in the present case to visit liability on the Union.
Importantly, Edelman and Steward JJ explain that the first and third areas are not "vicarious liability" in the true sense. Their Honours explain that the first area is based on "'vicarious acts' or 'vicarious conduct', rather than vicarious liability": Schokman at [50]. They also explain the third area is actually a "non-delegable duty" that is "commonly, but unfortunately, described by invoking the language of 'vicarious liability'": see [71]. The three areas are provided as a taxonomy rather than positive definitions of three areas of "vicarious" liability.
Dealing with the "areas" in turn. The "first area of law generally involves cases where one person is, in broad terms, an agent for another. It is a primary liability: the acts of another are attributed to the defendant on the basis that they were part of a joint enterprise, or procured, authorised or ratified by the defendant": Schokman [50]. It is said by their Honours to apply "to all principals, whether an employer or not, for whom the acts are done with their authority". For the reasons explained above, in dealing with agency (under ss 363 and 793), I do not accept that the conduct of Mr Gill was done with the authority of the Union.
The second area "also described as 'vicarious liability', involves cases where 'vicarious liability' is used in its true, or proper, sense of liability based on the attribution of the liability of another": Schokman at [51]. Their Honours continued:

[383]

Justice Edelman in Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 at [97]- [98] (with whom Allsop CJ generally agreed at [62]-[63]) said the "directing mind and will" rule of attribution was rejected as a universal rule in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500; 3 NZLR 7 at 506.
In Meridian, Lord Hoffmann (delivering the judgment of the Privy Council) concluded that the determination of the applicable rule of attribution to apply in a given legal setting is a matter of construction of the relevant substantive law being applied (at 507). The question of construction is whether the substantive law requires that the knowledge that an act has been done, or the state of mind with which it was done, should be attributed to the company (at 511).
At 506, Lord Hoffman found that the company's primary rules of attribution are generally found in those provisions of its constitution (if any) which indicate how decisions of the company are to be made. Those primary rules are supplemented by other rules or principles implied by company law which state when a company is to be bound by the acts or decisions of others. The primary rules of a registered organisation, such as the Union, are ordinarily its rules.
Dealing with the conduct of Mr Gill, the Ombudsman does not allege that Mr Gill was the "directing mind and will" of the Union at the time he engaged in the 24 August 2021 Actions.
Applying Meridian, there is no allegation that Mr Gill was acting in an official capacity as the Union under its rules. In applying the substantive law in question, I consider that the Act prescribes various modes of liability for involvement in, or in relation to, contraventions of the Act, such as ss 363, 550 or 793. In these circumstances where I have found that the Union does not satisfy those modes of liability, nor does it satisfy general principles of agency or vicarious liability, I do not accept the Union could be held directly liable for contravening ss 343, 348 and 346. Furthermore, Mr Gill was not acting as the Union when he took the Gill 24 August 2021 Action. There is no allegation that he was acting as the Union under its rules. He is not an officer of the Union and he was not performing any function of the Union. In these circumstances, the Union is not directly liable for the Gill 24 August 2021 Action.

[386]

The allegations discussed below pertain to words spoken by an unknown picketer or "the Picketers". The "Picketers" is defined at [33] of the Amended Statement of Claim to mean "various people (both known and unknown to the Applicant) [who] were present at and around the gates to the Qube Fremantle operations at Fremantle Harbour, including Gate 6.2 at the Kwinana Bulk Jetty". It is not specified in the Amended Statement of Claim whether I am to understand "Picketers" in the sense that all picketers said the impugned words, or that some of the picketers said those words. I have approached the allegations pertaining to "Picketers" to mean some picketers.
The allegations pertaining to the actions of the picketers (other than Mr Gill) on 24 August 2021 are as follows.
First, the picket involved picketers "yelling derogatory epithets including 'scab' and 'dog' and making barking noises (so as to imitate a canine)".
Second, upon Mr Coelho's arrival at the Gate at around 5:45 am of the Kwinana Bulk Jetty, the picketers began shouting insults at Mr Coelho. This included calling Mr Coelho a "scab" and a "dog".
Third, upon Mr Copperthwaite's arrival at the Gate, the picketers, including Mr Gill, made barking sound and yelled the words "scab", "dog" and "I know where you live" in Mr Copperthwaite and Mr Coelho's directions.
Fourth, an unknown picketer then whispered to Mr Copperthwaite: "I'll kill ya".
Fifth, other picketers said to Mr Copperthwaite: "you'll end up being killed".
Sixth, the picketers then immediately began repeatedly chanting: "MUA, HERE TO STAY".
Seventh, another unknown picketer said to Mr Copperthwaite: "while you're doing this you should think about Charmaine and the kids". Charmine is the name of Mr Copperthwaite's wife. Charmaine and Mr Copperthwaite have children.
Eighth, another unknown picketer said to Mr Copperthwaite: "I'm going to make it hard for you if you keep doing this".
Ninth, Mr Coelho said to the crowd "Leave [Mr Copperthwaite] alone, he hasn't done anything wrong, he is just trying to escort me in". After this statement, the picketers started shouting at Mr Coelho saying: "you dog", "you scab", "I am coming to get you" and "you will suffer for life like the rest of the scabs".
Tenth, another unknown picketer said to Mr Coelho: "you should have become an MUA member and joined the picket line". Mr Coelho responded saying: "I'll support you guys if you support my family, because I will be on strike with no income". Another unknown picketer then said: "go in my doghouse" and/or "Oh you can sleep with my dog" which prompted an argument between Mr Coelho and the picketers.
Eleventh, after the Gate was opened and Mr Coelho and Mr Copperthwaite were able to enter the Gate, another unknown picketer made a hand gesture to the effect of a shooting gun which he aimed at Mr Coelho and then at Mr Copperthwaite and also silently mouthed words to the effect of "Bang! You're dead". This gesture conveyed that Mr Coelho and Mr Copperthwaite risked being physically harmed or killed (or their families risked being harmed or killed) unless they complied with the Union's wishes.

[396]

On the Ombudsman's own submissions, the arrivals total 22 (and not 30 as pleaded). The Union, without responding specifically to the arrivals, submits that the video evidence shows "12-15 persons present".
After 5:48:00 am in the video evidence it is difficult to determine the total number present; at least some of the relevant area is in darkness. Mr Copperthwaite's oral evidence was that there was "roughly 30 people". His statement to Inspector Tonev included that he saw "about 30 persons"; his further amended outline of evidence identified "approximately 30 picketers". Noting that Mr Copperthwaite's evidence is an estimate, I am not satisfied that there were 30 picketers. I accept the Ombudsman's submission that the video evidence demonstrates that 22 people arrived at the picket between 5:25 am and 5:48 am on 24 August 2021; of those only three can be seen arriving by vehicle. I also accept that there was a gathering of picketers close to the Gate as pleaded.
Mr Coelho's statement to Inspector Tonev included that he recognised five of the picketers as employees of Qube and another five as employees of Pivotal. He said that he did not know their names. Mr Copperthwaite's further amended outline of evidence stated that he knew some of them were Qube employees as he recognised them as people he had worked with previously, but that he did not know their names. The Union submits that no oral evidence was given about the employment of the picketers and that Mr Copperthwaite said (in oral evidence) that he did not recognise any of the people "at that immediate time" (when he exited the Gate to assist Mr Coelho). It is not clear whether by "recognise" Mr Copperthwaite intended to convey that he was unable to name the picketers or whether he did not know them at all. On balance, I accept that some of the picketers were employed by Qube and some by Pivotal.
There was no dispute that the picketers, save Mr Gill, were not individually identified. That is, there was no evidence individually identifying the picketers by name, by their employer and whether they were a member of the Union (save what is said about stickers, clothing and flags). There was no dispute that there were "others [picketers], the identities of whom the Applicant does not yet know".

[408]

The Ombudsman relies upon the following evidence to establish the sequence of Mr Coelho's arrival. First, Mr Coelho's oral evidence that: "that morning, I arrived at the Kwinana Bulk Jetty ... I previously organised with Chris to be my escort that morning".
Second, Mr Coelho's written statement made on the day which stated: "at 05:45am [Mr Coelho] arrived a (sic) Kwinana Bulk Jetty as per normal".
Third, the file note of Inspector Tonev's discussion with Mr Coelho on 28 February 2022 which provided that: "I drove to work as per normal to meet Chris Copperthwaite at the KBJ entrance gate so he could escort me in. Around 5:45am".
Fourth, Mr Copperthwaite's further amended outline of evidence which provided: "In the morning Mr Copperthwaite received a phone call from Luis Coelho ... During the phone call, Mr Coelho said words to the effect of 'I am having trouble getting through the gate. Can you let me in?' After the phone call, Mr Copperthwaite drove down to the access gate at the KBJ to assist Mr Coelho".
Any doubt or dispute about the chronology of Mr Coelho's arrival is resolved by the video footage. The CCTV footage from camera 740 shows Mr Coelho arrive in his vehicle, and pull to the side of the road well before the Gate, at approximately 5:41:05 am. It then shows Mr Coelho pulling away from that position and heading towards the Gate at approximately 5:53:43 am, apparently after seeing Mr Copperthwaite approaching the Gate from the inside, and arriving at the Gate at 5:54:06 am.
The CCTV footage does not show Mr Coelho calling Mr Copperthwaite from the Gate, as described in Mr Copperthwaite's evidence in chief. However, I accept that Mr Coelho is likely to have called Mr Copperthwaite near the Gate between approximately 5:45 am and 5:50 am.
There is no dispute that Mr Coelho arrived near the Gate by car at approximately 5:45 am for the purpose of attending work. However, he did not reach the Gate and was not near the picketers at the Gate until approximately 5:54 am. Between 5:41 am and 5:54 am, Mr Coelho parked well back from the Gate, away from the picketers.
All of that is consistent with Mr Coelho's oral evidence in chief:

[418]

Paragraph 70(a) of the Amended Statement of Claim provides that: "upon Copperthwaite's arrival at Gate 6.2 the picketers (including Gill) made barking sounds and yelled the words: 'scab', 'dog' and 'I know where you live' in Copperthwaite and Coelho's direction". Mr Gill's conduct in respect of [70(a)] is dealt with separately above. What follows is directed at the conduct of picketers other than Mr Gill.
The Ombudsman relies on similar oral evidence to the allegations regarding [68] of the Amended Statement of Claim above. First, the Ombudsman relies on the same oral evidence that when Mr Copperthwaite "made his way through the revolving doors to the communications tower", Mr Coelho "met up with him" meaning that he drove his car up to the Gate. Then, Mr Coelho stated that Mr Copperthwaite "proceeded ... talking to the speaker" and as he was doing that the picketers had made their way to Mr Copperthwaite and Mr Coelho. Mr Coelho stated that "most of the crowd ... had made their way to him, to Chris Copperthwaite and I would say half of them towards [Coelho]". Mr Coelho stated that "as usual they were just hurling abuse. 'I'll kill you, scab, dog. I know where you live. I know how many kids you got'".
She also relies on the oral evidence that when Mr Coelho arrived, he was called: "a dog, a scab, a wanker, low life. I was told to go back to where I come from. I was told that they know where I live ... They would use the same lyrics over and over every day. They said that 'I will kill you'".
Mr Coelho also gave evidence that as Mr Copperthwaite was talking in the communications box, the picketers were saying to Mr Coelho: "I know where you live. I'm coming to kill you. I'm coming to get you. You owe me money".
The Ombudsman relies on the oral evidence of Mr Copperthwaite that as he was walking through the Gate the picketers "started barking, yelling out 'you're a dog'".
As discussed above, the handwritten statement of Mr Coelho (made 24 August 2021 at 2:10 pm) states that:

[420]

The Ombudsman also relies on the further amended outline of evidence of Mr Copperthwaite which provides: "the picketers started barking like a dog at Mr Copperthwaite as he approached and entered the gate. The picketers started yelling and calling him names such as 'scab' and 'dog'".
The Ombudsman also relies on the handwritten statements of Inspector Tonev that recorded conversations with Mr Copperthwaite and Mr Coelho. The file note of the conversation with Mr Copperthwaite provided that as Mr Copperthwaite approached the Gate, the picketers "started yelling scab, dog". The file note of the conversation with Mr Coelho recorded that as Mr Copperthwaite got through the Gates, "the crowd surround (sic) Chris and started yelling abuse at him 'scab' 'Dog' 'I know where you live"'.
It is not in dispute that the identity of the people who are alleged to have made these remarks is unknown. The respondents did not challenge this evidence except to say the evidence of Mr Coelho and Mr Copperthwaite should not be accepted.
The allegation pertaining to the use of words "scab" and "dog" at [70(a)] of the Amended Statement of Claim are consistent with the oral evidence of both Mr Coelho and Mr Copperthwaite. The allegation is consistent with the statement made by Mr Coelho on 24 August 2021. It is consistent with the file notes of conversations between Inspector Tonev and both Mr Coelho and Mr Copperthwaite. It is consistent with the statement made by Mr Coelho on 24 August 2021. The respondents did not cross-examine to suggest that those words were not said. I accept that the words "scab" and "dog" were used by unknown persons at the picket on the morning of 24 August 2021 and that those words were directed towards Mr Coelho and Mr Copperthwaite.
The allegation at [70(a)] also includes the allegation that upon Mr Copperthwaite's arrival at the Gate, the picketers yelled the words: "I know where you live". That allegation is consistent with the oral evidence of Mr Coelho. It is consistent with the file note of conversation between Inspector Tonev and Mr Coelho. The respondents did not challenge this evidence except to say the evidence of Mr Coelho and Mr Copperthwaite should not be accepted. The respondents did not cross-examine to suggest that those words were not said. I accept that the words "I know where you live" were used by unknown persons at the picket on the morning of 24 August 2021 and that those words were directed towards Mr Coelho and Mr Copperthwaite.

[422]

Paragraph [70(d)] of the Amended Statement of Claim provides that upon Mr Copperthwaite's arrival at the Gate, another picketer whispered to Mr Copperthwaite: "I'll kill ya", and other picketers said: "you'll end up being killed". It is not in dispute that the identity of the people who are alleged to have made these remarks is unknown.
To prove these allegations, the Ombudsman relies on the oral evidence of Mr Coelho where he said that while Mr Copperthwaite was trying to arrange for him, Mr Coelho, to enter the Jetty at the communications box, he could hear the picketers saying: "I will kill you, I'm coming to get your kids".
The Ombudsman relies on Mr Copperthwaite's oral evidence in which he said that he remembered "a voice from behind [him] saying that I will kill you". This was described as separate and distinct from the allegation that Mr Gill said: "You'll end up dead dog if you keep going like this".
The Ombudsman further relies on the further amended outline of evidence of Mr Copperthwaite which provides that: "Mr Copperthwaite also heard other picketers say to him words to the effect of 'you'll end up being killed'" and that one picketer whispered to him: "I'll kill ya". She also relies on Mr Copperthwaite's handwritten note from 24 August 2021 which states that: "one whispered 'I'll kill ya'" and "they" told Mr Copperthwaite that "if [he] continued doing what [he] was doing that '[he] would end up being killed'". She further relies on the police incident report which refers to "vague suggestive threatening remarks" being made against Mr Copperthwaite by Qube employees and that words indicated that "he would be killed and another shouted 'I'll kill ya'".
The allegation pleaded at [70(d)] must be treated as two separate allegations. First, the picketer (singular) whispering "I'll kill ya". Second, other picketers (plural) saying "you'll end up being killed". As to the first, the allegation is consistent with Mr Copperthwaite's oral evidence and his amended outline of evidence (which, as explained, was tendered into evidence). It is consistent with Mr Copperthwaite's note made 24 August 2021. The challenge to Mr Copperthwaite's evidence was as to its broad reliability and as to the potential overlap or inconsistency in his record of the threats made to him. This is discussed at [14]-[18] and [82]-[130]. I am not satisfied that challenge undermines Mr Copperthwaite's evidence about the words "I'll kill ya" being said to him by a picketer. I accept that those first words were used by an unknown person at the picket on the morning of 24 August 2021 and that those words were directed towards Mr Copperthwaite.
As to the second part of the allegation, Mr Copperthwaite was taken through his amended outline of evidence in cross examination, and asked whether he saw in the outline an allegation that "other picketers sa[id] words in effect of, 'you will end up being killed'", to which Mr Copperthwaite responded "Yes". This part of the allegation is consistent with Mr Copperthwaite's further amended outline of evidence where it records: "Mr Copperthwaite also heard other picketers say to him words to the effect of 'you'll end up being killed'". It is also consistent with Mr Copperthwaite's handwritten note from 24 August 2021 which states that "they" told Mr Copperthwaite that "[he] would end up being killed'".
Whilst it is largely consistent with the oral evidence of Mr Copperthwaite that Mr Coelho could hear the picketers saying "I will kill you", that evidence is inconsistent with Mr Coelho's other evidence that: "I couldn't exactly hear what [the picketers] were saying to Chris". Although that evidence appears to have been directed to the point after which Mr Coelho had endeavoured to "get the attention off Chris". He says that after that point "they come back to me ... [and] ... a few of them stayed with Chris, and I couldn't exactly hear what they were saying to Chris". I understand the allegations at [70(a)-(p)] to be in chronological order and that the allegation of picketers saying: "I will kill you" precedes Mr Coelho's efforts to "get the attention off Chris" and should be understood to occur at a time when Mr Coelho could hear what was being said to Mr Copperthwaite.
As to Mr Copperthwaite's evidence, the question is what is covered or intended by Mr Copperthwaite's reference to "would end up being killed" (in his 24 August 2021 note, amended outline, and as alleged in [70(d)]). Namely, is it a reference to Mr Gill's threat together with another threat of a similar nature said by picketers on the day? For the reasons explained above, I consider it to be at least a reference to Mr Gill's threat. If it is intended to be a reference to further threats made by other picketers, I am not satisfied to the necessary standard that it was said. It is significant that Mr Copperthwaite did not give oral evidence about these words being discretely used (save what is explained above about it including the threat by Mr Gill) by other picketers. He also did not communicate to Inspector Tonev that these words were discretely used (again save his reference to the threat by Mr Gill) by other picketers. Those matters persuade me that I cannot be satisfied that those second words were separately used by some or any of the picketers.

[436]

As to [70(j)], the Ombudsman conceded in closing that she had not proven that the words "you will suffer for life like the rest of the scabs" were said.
To prove that the other words at [70(i) and (j)] were said, the Ombudsman relies on the oral evidence of Mr Coelho who said: "in a way, to get the attention off Chris, I responded back to them, to the picketers, your Honour. You know, I just wanted them to get away from Chris. I shouted out, 'Just leave him alone. He's not there - he's not harassing you, you know, he's only there to escort me in'". Mr Coelho said the picketers then "sort of turned their attention back onto" him and were saying "pretty horrific stuff" including "I know where you live. I'm coming to kill you. I'm coming to get you. You owe me money."
The Ombudsman also relies on the handwritten note of Inspector Tonev's conversation with Mr Coelho. That note provides: "I shouted out 'leave the guy alone, he hasn't done anything wrong, he just trying to escort me in ... most of the Picketer (sic) turned their attention to me ... They started shouting 'you dog, you scab, I'm coming to get you'". Mr Coelho's note made on 24 August 2021 does not record the words: "I'm coming to get you", although that note does not appear to record any particular words spoken on that day with the exception of "dog, scab, pigs".
As to the evidence of Mr Copperthwaite, the Ombudsman relies on the oral evidence of Mr Copperthwaite where he said: "Coelho was yelling out to draw attention off me", and his further amended outline which provides: "Mr Coelho started to call out to the picketers, as if to draw attention away from Mr Copperthwaite". The Ombudsman also relies on the handwritten note of Inspector Tonev of his conversation with Mr Copperthwaite which stated that: "I believe Louis started calling out to the crowd, I believe to draw there (sic) attention off me. Louis was sitting in his ute about 2 metres away from me. The crowd was telling [Mr Coelho] to shut up".
Mr Copperthwaite did not give oral evidence that the words alleged at [70(i) and (j)] were said at this point in the events. He did not record in any of his written records that the words "I'm coming to get you" were said.
Again, there was no express cross-examination on the words alleged at [70(i) and (j)] being said at this point in the events, save that the respondents say the evidence of Mr Coelho and Mr Copperthwaite should not be accepted.
Where Mr Coelho's oral evidence is corroborated by his conversation with Inspector Tonev, and the notes of that conversation, and in the absence of any express challenge to the words being said at this point in the events, I am satisfied on the balance of probabilities that these words were said to Mr Coelho on 24 August 2021 at this point in the events. Again, by unknown persons.

[457]

I am satisfied on the balance of probabilities that the physical gun gesture was made. I am not satisfied that the words "bang you're dead" were said or "silently mouthed".
I accept that some of the surrounding circumstances produced inconsistent details. However, the material aspects of the event were consistent. By the material aspects, I mean the making of the physical gesture itself: that it was directed to Mr Coelho, and when and where it was made. Those material aspects were consistent in Mr Coelho's oral evidence, his note of the day and his interview with Inspector Tonev. They were consistent in Mr Copperthwaite's oral evidence, his note made on the day, his interview with Inspector Tonev, and his amended outline of evidence.
I accept that Mr Copperthwaite resiled from his earlier account (given to Inspector Tonev) that the gesture was also directed at him. Mr Copperthwaite's explanation for resiling was that his recollection of the specifics of the gun gesture was "faulty". I also accept that he changed his evidence about what the person who made the gesture was wearing. His outline first provided for "dark clothes and a ski mask". It was amended to "tinted sunglasses ... black hoodie and black pants and shoes", which Mr Copperthwaite again attributed to his recollection of the specifics of the eye covering as being "faulty". Despite the Union's submission to the contrary, Mr Coelho did not give evidence that the person was wearing sunglasses, and was not asked in cross-examination whether the person wore sunglasses. I do not consider Mr Copperthwaite's inconsistencies, or the inconsistencies between Mr Copperthwaite and Mr Coelho, sufficiently undermine the reliability of the evidence on the material aspects of the event.
As I say above, I have examined the video footage at the time the Ombudsman alleges the event occurred. Whilst Mr Copperthwaite has entered through the gate at that time, he does turn back to the gate in an apparent effort to check progress of the entering vehicle and Mr Coelho's vehicle. Whilst he is some distance from the picketers, it appears that he has a clear line of sight to the picketers. I accept his evidence that he saw the gesture.
As to whether the words "bang you're dead" were said or "silently mouthed", there is no evidence that Mr Copperthwaite heard those words. Mr Coelho's oral evidence was: "I didn't hear him say the bang you're dead, but I - I - I could say he said something to the thing of bang, or you're dead, because he had done the motion of". It was clear Mr Coelho did not hear the words. I understood the evidence of "something to the thing of bang, or you're dead" to include an element of speculation about the likely words that would accompany such a gesture. That evidence does not enable me to be satisfied, on the balance of probabilities, that the words were said or mouthed.

[462]

As explained above, [80] of the Amended Statement of Claim provides that the Union took the 24 August 2021 Actions by "operation of ss 363 and/or 793 of the ... Act". The pleading does not identify which subsections, within those sections, are relied upon.
Dealing first with s 363. Section 363 attaches liability to actions of industrial associations in respect of Part 3-1 of the Act (which includes ss 343, 346 and 348). Section 363(1) relevantly deals with action taken: (a) by a committee of management of the industrial association; (b) by an officer or agent of the industrial association acting in that capacity; (c) by a member of the industrial association authorised by the rules of the industrial association, authorised by the committee of management of the industrial association, or authorised by an officer or agent of the industrial association; and (d) by a member of the industrial association who performs the function of dealing with an employer on behalf of members of the industrial association and acts in that capacity. There was no evidence or pleading that the relevant action was taken by a committee of management of the Union. There was no evidence or pleading that each of the picketers was a member of the Union, that their action was relevantly authorised, or that they were performing the function of dealing with the employer. That leaves s 363(1)(b): action taken by an officer or agent of the Union, acting in that capacity.
As set out above, the Ombudsman submits that the reference to an agent in s 363 (and s 793) should be given its ordinary and natural meaning, which she submits is "a person acting on behalf of another". The Union submits that the word "agent" in ss 793 and 363 should be given its established legal meaning.
For the reasons set out above, I accept that the word "agent" should be given its established legal meaning. There is nothing in the Act to indicate that it should not. The text, for the reasons submitted by the Union, supports the established legal meaning. The presumption that it should have its established legal meaning is not displaced.
Also, as explained above, ordinarily the party who alleges the existence of an agency relationship bears the burden of proving that relationship and of establishing whether or not the agent acted within the scope of their actual or apparent authority: see G E Dal Pont, Law of Agency, 4 ed, 2021 at 1.10 citing McLaughlin v Daily Telegraph Newspaper Co Ltd [1904] HCA 51; (1904) 1 CLR 243 at 276 (Griffith CJ); Baker v Taylor [1906] NSWStRp 103; (1906) 6 SR (NSW) 500 at 502-503 (Street J); Cadd v Cadd [1909] HCA 59; (1909) 9 CLR 171 at 187 (Isaacs J); Hoare v McCarthy [1916] HCA 65; (1916) 22 CLR 296 at 303 (Griffith CJ); Clayton Robard Management Ltd v Siu (1988) 6 ACLC 57 at 59 (Kirby P).
There are at least two essential elements commonly identified as essential to recognising an agency relationship. First, the consent of both the principal and agent. Second, the authority given to the agent to act on the principal's behalf. These two elements are explained in more detail above at [259]-[261].
In respect to the 24 August 2021 Actions, the picketers are not identified and are unknown. There is no evidence or pleading of the consent of the principal and agent. There is no evidence or pleading of the authority given to the agent. I am not satisfied that there existed any agency relationship between the Union and the unknown picketers.
Much the same applies to s 793 of the Act. Section 793(1) provides for "liability of bodies corporate". It deals with action: (a) by an officer, employee or agent (within the scope of their actual or apparent authority); or (b) by any other person at the direction (or with the consent or agreement) of an official of the Union. Whilst the pleading does not identify whether (a) or (b) is relied upon, where there is no evidence of a direction of the type contemplated in (b), I proceed on the basis that it is s 793(1)(a) that is relied upon.
I sought from the Ombudsman an authority whereby picketers, whether known or unknown, were found to be agents of a Union. The Ombudsman responded that they were unaware of any such authority.
The Ombudsman emphasised further that while no Union officials were in attendance at the picket on 24 August 2021, the fact that they were "aware of the behaviour of the picket prior to that" indicates an agency relationship between the Union and the picketers. The Ombudsman said further in relation to agency that the "social media campaign only inflame[d] the situation".
There is no evidence to establish that the unknown picketers on 24 August 2021 were officers or employees. As to agents, for the same reasons as set out above in respect of s 363 of the Act, I am not satisfied that there existed an agency relationship between the Union and the unknown picketers.

[464]

As explained above, the Ombudsman alleges, in respect of each of ss 343, 348 and 346, that the Union is liable because "as a matter of statutory construction, where the [Union] organised the picket, it should be held to have directly contravened ss 343, 348 and 346" (original emphasis). The Ombudsman said further that the Union's social media campaign demonstrated that the Union "kn[ew] what was going on, on the picket".
That was consistent with the Ombudsman's oral opening in which she submitted that: "the conduct from 24 August is organised or taken by the Union. Our primary case is a direct liability case that the Union set up the picket ... that conduct becomes - they own that conduct, it becomes their own conduct". As discussed at [310], the Ombudsman could not identify "direct authority" for this proposition, and I am not aware of any such authority.
At [308]-[317], I discussed what is required for a Union to be directly or primarily liable under the common law. Relevantly, the authorities emphasise that the person(s) alleged to have contravened the relevant law must have been acting as the "directing mind and will" of the Union when engaging in the contravening conduct (pursuant to Hanley); or, applying Meridian, acting in an official capacity as the Union under its rules.
Apart from the conduct alleged to have been done by Mr Gill (at [70(a) and (b)] of the Amended Statement of Claim), the identity of the individuals engaging in the conduct is not known. There is no evidence of any connection between the specific alleged conduct undertaken by the picketers and the Union. The Ombudsman does not allege that the unknown picketers were the "directing mind and will" of the Union. Applying Meridian, it is also difficult to see how the unknown picketers could be acting in an official capacity as the Union under its rules.
The contraventions of each of ss 343, 346 and 348 requires taking or organising by a "person". Given the lack of evidence of the identity of those who undertook the (non-Gill) 24 August 2021 Actions, or their connection with the Union or any authorisation under the Union's rules, it cannot be established that the "person" who "took" or "organised" the conduct was the Union.

[466]

The Ombudsman alleges that the (non-Gill) 24 August 2021 Action leads to the following contraventions of the Act by the Union.
First, she alleges that the conduct by the unknown picketers on 24 August 2021 was taken or organised by the Union with the intent to coerce Mr Copperthwaite to engage in industrial activity, in breach of s 348 of the Act.
Second, she alleges that the conduct by the unknown picketers on 24 August 2021 was taken or organised by the Union with the intent to coerce Mr Coelho to engage in industrial activity, in breach of s 348 of the Act.
Third, she alleges that the conduct by the unknown picketers on 24 August 2021 was taken or organised by the Union with the intent to negate the choice of Qube to agree to the proposed enterprise agreement sought by the Union, in breach of ss 343 and 348 of the Act.
Fourth, she alleges that the Union took, or organised the unknown picketers to take, adverse action against Mr Copperthwaite because he had not engaged in or proposed not to engage in industrial activity, in breach of s 346 of the Act. The adverse action is alleged to be the unknown picketers' conduct on 24 August 2021 which is said to have had the effect of prejudicing Mr Copperthwaite in his employment.
Fifth, she alleges that the Union took, or organised the unknown picketers to take, adverse action against Mr Coelho because he had not engaged in or proposed not to engage in industrial activity, in breach of s 346 of the Act. Again, the adverse action is alleged to be the unknown picketers' conduct on 24 August 2021 which is said to have had the effect of prejudicing Mr Coelho in his employment.
In circumstances where I have concluded that the Union is not liable for the conduct of the unknown picketers on 24 August 2021, in any of the various ways alleged by the Ombudsman, I cannot be satisfied that these contraventions of the Act are made out.
The Ombudsman also says that, further and in the alternative to the allegations of primary liability against him discussed above, Mr Gill is liable as an accessory under s 550 of the Act for the contraventions committed by the Union. Given I am not satisfied that the facts establish that the Union has contravened the Act, it follows that Mr Gill cannot be found to be liable as an accessory to the Union's conduct.

[468]

By her Originating Application, the Ombudsman seeks an order pursuant to s 545(1) of the Act that Mr Gill and the Union pay compensation to Mr Copperthwaite and Mr Coelho for their loss.
Section 545(1) confers a broad power on the Court to make "any order the court considers appropriate if the court is satisfied that a person has contravened ... a civil remedy provision". Section 545(2)(b) provides that without limiting subsection (1), the Court may make an order awarding compensation for loss that a person has suffered because of the contravention.
In determining the compensation to be awarded, the governing consideration is what the court considers "appropriate": Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 at [157] (Mortimer J). This means that the section can allow a court to order compensation which may not fully compensate a person for the loss suffered: Dafallah at [157]. The discretion to award compensation is also not confined to relief only being appropriate when granted in strict observation of the remedial purpose of the power: Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348; 304 IR 280 at [28] (Lee J).
That said, there must be an appropriate causal connection between the contravention and the loss claimed: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; 193 FCR 526 at [423] (Barker J). Determining whether there is a causal connection may involve "not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions)": Transport Workers' Union of Australia v Qantas Airways Ltd [2024] FCA 1216; 334 IR 187 at [70] (Lee J), citing Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 at [28] (Allsop, Mansfield and Siopis JJ).
Lee J considered in Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 at [23] that, in assessing causation under s 545(1) in that case, the following questions seemed to be relevant: first, whether a loss has been proved; second, whether the contraventions had a role in the happening of the loss; and third, whether the order for statutory compensation is appropriate.
Orders of compensation under s 545 can include a component for distress, shock, hurt and humiliation: see e.g. Aircraft Engineers Association at [447]-[450]; James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 at [157] (Griffiths and SC Derrington JJ, with whom Rangiah J agreed). In Qantas Airways, Lee J relevantly stated at [208]:

[473]

In determining Mr Copperthwaite's loss under s 545, I have had regard to the principles I have outlined above and the fact that I have only found contraventions in respect of Mr Gill's conduct and not in respect of the unknown picketers' conduct. I do not consider it "appropriate", within the meaning of s 545, to compensate Mr Copperthwaite for loss suffered due to (1) events that have not been pleaded as contraventions, being the conduct of picketers between 30 July 2021 and 23 August 2021 (such as name-calling, saying comments to the effect of "check your moral compass" and video recording with phones, or the conduct of the picketers from 25 August 2021 to the end of the picket on 15 October 2021; or (2) events that I have not found to be contraventions of the Act, being the conduct of Mr Gill on 24 August 2021 pleaded at [70(a)] of the Amended Statement of Claim or the conduct of the unknown picketers on 24 August 2021 pleaded at [70(d)-(p)] of the Amended Statement of Claim.
It is difficult to isolate the specific loss caused to Mr Copperthwaite by Mr Gill's dead dog statement, as compared to the conduct of the other picketers on 24 August 2021 and any conduct during the picket before or after that date. I have had regard to the evidence of Mr Copperthwaite as to the distress caused by the picketers in the period before 24 August 2021 described at [53] above, including his comment to Inspector Tonev that over time he "almost became immune" to the constant behaviour. I have found that the conduct of the other picketers toward Mr Copperthwaite on 24 August 2021 included death threats (described at [384]) and statements that Mr Copperthwaite should "think about Charmaine and the kids" (at [393]). I accept that that conduct would have caused distress to Mr Copperthwaite. Nevertheless, my task is to award compensation that reflects Mr Gill's contravention alone, noting the inherently imprecise nature of calculating non-economic loss.
Mr Gill's threat was serious. I am satisfied that Mr Gill's threat was made in close proximity to Mr Copperthwaite, in a confrontational manner, and caused Mr Copperthwaite distress. In awarding compensation, I consider the seriousness of Mr Gill's conduct, but also the fact that Mr Copperthwaite has not suffered any diagnosed psychological injury: see Dafallah at [179], Melbourne Precast at [10]. I will make an order for compensation of $14,000, which I consider to be appropriate in all the circumstances.

Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union

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