The evidence and factual findings
14 The evidence is overwhelming; employees of the two companies took industrial action between 7 and 14 August 2015. The industrial action contravened s 417(1) of the Fair Work Act because, as the MUA conceded, the employees were national system employees covered by an enterprise agreement which had not expired. The MUA both organised the action and was involved in the employees' contraventions of s 417(1).
15 Section 19 of the Fair Work Act applies. It is in these terms:
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
16 Under s 417(1), as relevant, an employee or employee organisation (of which the MUA is one) must not organise or engage in industrial action from the day on which an enterprise agreement is approved by the FWC until its nominal expiry date has passed. The relevant enterprise agreement, The Sydney International Container Terminals Pty Limited (SICTL) Brisbane Container Terminals Pty Limited (BCT) Maritime Union of Australia Terminals Greenfields Enterprise Agreement 2013 (the enterprise agreement), covered and applied to the employees of the two companies and the MUA. It had a nominal expiry date of 29 February 2016.
17 By s 550(1) a person who is involved in a contravention of a civil remedy provision (which includes s 417(1)) is taken to have contravened that provision. By s 550(2):
A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
18 Before dealing with the evidence it is convenient to note a couple of matters.
19 The MUA objected to the admission of evidence of various representations by MUA officials to employees who were not called to give evidence. The FWO submitted that this evidence was relevant for a non-hearsay purpose, namely, to prove that the employees were not taking the action based on any concern about health or safety so as to potentially engage s 19(2)(c). I admitted the evidence over objection by the MUA. I declined to make any ruling on the use of the evidence during the hearing. It is appropriate to record here that I accept that the evidence should not be used for any hearsay purpose, that is to prove the truth of the facts asserted in the representation. My reasoning below proceeds on this basis.
20 The MUA made much of the gravity of the allegations and the principle, embodied in s140(2)(c) of the Evidence Act 1995 (Cth), that this is to be taken into account in deciding if the case has been proved on the balance of probabilities. No doubt an allegation of a civil penalty provision is a serious matter. But the genesis of the principle embodied in s 140(2)(c) of the Evidence Act should not be forgotten. The standard of proof is on the balance of probabilities. Section 140(2)(c) does not alter the standard of proof in a civil matter. It speaks to the process of reasoning by which a finder of fact may be satisfied that the evidence reaches or does not reach the standard. In that process, due recognition must be given to the fact that some events are inherently more or less likely than others.
21 It may be accepted that no finding of contravention of the Fair Work Act is "lightly to be made" (Australian Building and Construction Commissioner v Hall [2017] FCA 274 at [20]) and any contravention must be "clearly established" (Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64; (2016) 242 FCR 46 at [45]). But it is a stretch to suggest that it is inherently improbable that, when confronted with what it perceived (whether rightly or wrongly) to be an attempt to destroy its power, the MUA organised industrial action in contravention of the Fair Work Act. While the scheme of the Fair Work Act is to require disputes between employers and employees and employer and employee organisations to be resolved through the Fair Work Commission, it is not irrelevant that the collective withdrawal of labour has long been the weapon of last resort of workers and unions. Withdrawal of labour, however, is made unlawful by s 417(1) of the Fair Work Act if an enterprise agreement applies and has not yet passed its nominal expiry date. The fact that an employer may itself have contravened an enterprise agreement does not make lawful a withdrawal of labour in response by the employees. Yet, as in the present case, such a perceived contravention by the employer, the intent of which was seen to be to destroy the MUA's power on the waterfront, does not make recourse to the traditional weapon of collective withdrawal of labour, even if unlawful, an unlikely event.
22 To similar effect the MUA's characterisation of the evidence as wholly circumstantial, and even the FWO's apparent abashedness that it could not point to any document constituting an unequivocal admission by the MUA of its role as organiser of the industrial action, seems disconnected from the reality of this case. What is required in a civil case is not the exclusion of any rational inference consistent with innocence. This is the criminal standard of proof in action. It will suffice in a civil case if the evidence, including evidence of circumstances, makes it more probable than not that the contravention has occurred. While this requires that the evidence enable a positive inference to be drawn rather than merely equally competing possibilities, the characterisation of the evidence as evidence of circumstance does not mean that it is not evidence or is incapable of discharging the onus (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5). As explained in Palmer v Dolman [2005] NSWCA 361 at [41], in the context of findings of fraud:
(a) The jury must consider "the weight which is to be given to the united force of all the circumstances put together" (per Lord Cairns in Belhaven & Stenton Peerage (1875) 1 App Cas 278 at 279 - quoted with approval by Gibbs CJ and Mason J in Chamberlain v R (No 2) [(1984) 153 CLR 521] at 535).
(b) The onus of proof is only to be applied at the final stage of the reasoning process: "[i]t is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of [a] circumstantial case" (per Winneke P in Transport Industries Insurance Co Ltd v Longmuir [[1997] 1 VR 125] at 129).
(c) The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful.
(d) Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Bradshaw.
23 Finally, in terms of principle, and contrary to the submissions for the MUA, the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 is relevant. Insofar as inferences are available to be drawn on the evidence, the fact that the MUA did not call any evidence to the contrary, which it was within its power to call, means the inference may be more readily drawn than might otherwise be the case. The inference is able to be more readily drawn because it may properly be inferred that such evidence as the MUA might have called would not have assisted its defence. As will be apparent from the discussion of the evidence below, however, this case is far from needing recourse to the principles in Jones v Dunkel for positive inferences of organisation and involvement to be drawn.
24 Otherwise, it is relevant that the MUA's rulebook provides in cl 15(b) that the National Council shall govern the affairs of the Union between meetings (during which governance is by the members). Clause 16 identifies the National Council as comprising various officers including the National, Deputy and Assistant National Secretaries, and the various Branch and Deputy Secretaries for Queensland, Newcastle, Sydney, Southern New Wales, Victoria, South Australia, Western Australia, Tasmania, and the Northern Territory. By cl 31 the officers of the MUA are the National and Branch officers. These officers of the MUA may be inferred to act for and on behalf of the MUA. Their actions and statements are attributable to the MUA. No evidence suggested that any such officer acted without or beyond the scope of his or her authority.
25 This all said, the evidence establishes that by 26 June 2015 the MUA (via Warren Smith, the MUA's Assistant National Secretary) and employees at the terminals were aware that the two companies proposed to reduce their workforce at each terminal commensurate with an intended reduction in the companies' commercial activities.
26 In the same period HPA communicated with the MUA and employees about the process for reducing the number of employees including a method and criteria for selecting employees for termination. Paul Keating, MUA Deputy Branch Secretary (Sydney), considered the criteria part of an attempt to undermine the MUA. It is apparent that the MUA rejected the criteria, a fact made clear in communications to HPA from Mr Smith of the MUA to HPA. The MUA also made clear its aim of minimising redundancies.
27 By 20 July 2015 HPA had notified the MUA and employees of its intention to reduce the workforce by 56 employees in Sydney and 41 in Brisbane. The MUA, rightly or wrongly, perceived that HPA's decision had been made without consultation and in breach of the enterprise agreement. It also perceived this proposal as an attempt to both introduce automation by stealth and to destroy the MUA's power at the terminals (referred to in the MUA's documents as "union busting") by discriminating against MUA delegates in the selection of employees to be sacked.
28 As might be expected, tensions increased. The MUA considered that one of its officers was denied lawful entry to the Brisbane terminal. The MUA also considered that three members were suspended for attending a lawful union meeting. By 21 July 2015 Bob Carnegie, the MUA Branch Secretary (Qld) thought "it's imperative we throw everything including the kitchen sink at Hutchison for this rather unsophisticated attempt of delegate bashing". By 22 July 2015 Mr Carnegie would write to other MUA officials including Mr Smith:
I want all the bases covered including seeking an injunction in the Federal Court on Hutchison capacity to actually terminate these men…Have no fear myself, Paul Mc and Warren will deal with Hutchison industrially. No delegate on the waterfront is going under any more. Not on my watch. If anyone has any idea about 'boxing clever' or 'keeping your powder dry' this is the result of such a strategy.
29 "Paul Mc" is Paul McAleer who was the MUA Branch Secretary (Sydney) and the National Vic-Presiding Officer. Mr Smith, as noted, was the MUA Assistant National Secretary. If an MUA official openly states that MUA officials will deal with something "industrially" (whilst also referring separately to legal action), I do not see why I would not take the statement at face value. The same can be said of the statement Mr Smith made to MUA officials including Mr Carnegie, Mr McAleer and Paddy Crumlin, the MUA's National Secretary, on 25 July 2016 to the effect that HPA was using automation as a union busting tool by discriminating against union delegates in selection for redundancies. Mr Smith recognised that the MUA was in a "significant dispute" with HPA which would require, amongst other things, "industrial mobilisation".
30 The fact that the MUA perceived that it was being confronted with an existential threat of the utmost seriousness is apparent from multiple MUA publications from 26 July 2015 onwards. There is no reason to doubt the MUA's own statements about how it perceived its existence at the terminals to be under direct threat but that the MUA was "here to stay" by any and every means.
31 The MUA stated in a media release of 29 July 2015 that it would "unleash every tool available - legal, political and industrial - to stop Hutchison Ports Australia unfairly sacking almost half of its waterfront workforce". Contrary to the MUA's submissions, I again do not see why I should not take this evidence at face value. The MUA said it was willing to use every tool available to it, including industrial tools. One industrial tool is industrial action by employees, whether lawful or not. Given that the MUA was confronted with a perceived serious threat to its existence it is hardly unlikely that it would consider industrially mobilising the workforce to exclude industrial action because such action was unlawful.
32 It is apparent that by 30 July 2015 officers of the MUA, including Mr Smith and Jason Miners (the MUA Deputy Branch Secretary (Queensland)), had met with employees of the two companies who were members of the MUA in both Sydney and Brisbane at stop work meetings. The members wanted to condemn HPA on social media, a wish the MUA set about fulfilling by setting up social media pages focused on making HPA "stop union busting". Consistent with the MUA's stated intention to industrially mobilise the employees, the employees themselves resolved on that day to demand that HPA negotiate "with our union representatives and delegates" or else they "would fight" HPA. The notion that this resolution is unconnected to the actions of MUA officials and represents spontaneous action by the employees is untenable. For example, Mr Keating considered the meeting in Brisbane between MUA officials and the employees a "great success" as the employees were "standing resolute and prepared to fight for what is theirs". Again, the notion that this was a spontaneous position reached by employees uninfluenced by anything said or done by the MUA at the meetings is fanciful.
33 In any event, for its part, the MUA continued its media campaign with increasing intensity through early August 2015, all the while airing its beliefs that HPA was engaged in introducing automation by stealth and union busting. The MUA also organised a rally outside the Sydney terminal for 3 August 2015 on the basis that it was in response to HPA having "declared war on their workforce", the MUA's position being that "we will never surrender".
34 On 31 July 2015, Mr Smith recognised that the MUA "really need[ed] to win the workforce over in the vast majority". It does not take much to infer that the MUA acted consistently with this objective, nor that subsequent events were not a mere spontaneous result of employees' wishes uninfluenced in any way by anything the MUA might have said or done. Given that the MUA perceived it was in a "war" and a "battle" for its existence, for which it needed to industrially mobilise the workforce, the submission that the FWO's case is marred by a lack of proof of connection between the actions of employees between 7 and 14 August 2015 and the MUA is unpersuasive. The MUA had good reason and plenty of opportunity to ensure that it and employees were primed from late July onwards to do whatever it might take to ensure that HPA did not effect the nearly 100 redundancies as HPA proposed.
35 The rally on 3 August 2015 at the Sydney terminal took place attended by multiple MUA officials including Mr Smith, Mr McAleer, Mr Keating, as well as Paul Garret and Joseph Deakin, both MUA Assistant Branch Secretaries (Sydney). The MUA posted images from the rally on its "stop union busting" social media sites.
36 At the same time the MUA took legal action, filing an application in the Fair Work Commission on 4 August 2015 alleging that HPA had contravened the enterprise agreement by failing to negotiate about the redundancies.
37 On 5 August 2015 Mr Smith was describing the "fight" with HPA as one "we will fight to the end", the "we" being the MUA. Mr Smith continued saying that the MUA would be using every "lever at our disposal to ensure that this anti-union attack is repelled". I do not doubt that one such lever was industrial action whether lawful or not.
38 By 6 August 2015 Mr Carnegie anticipated that the "main event is about to start". No doubt this was a response to the fact that at about 11.30pm that evening, in what might be considered an unconventional approach to industrial relations, HPA sent emails to employees notifying them of their employment status, including the foreshadowed redundancies of nearly 100 employees which would take effect on 14 August 2015.
39 An MUA media alert then went out on 7 August 2015 headlined "100 workers sacked by email sparks war on waterfront". Other MUA communications requested an immediate picket of the Sydney terminal. At 1.43am Mr Keating called Ryan Angwin, an employee at the Sydney terminal. They spoke for 20 minutes. Mr Keating then arrived at the Sydney terminal. So did Mr Garrett. However, they were not allowed onto the premises.
40 The MUA's submissions attempted to make something out of alleged inconsistencies between the evidence of HPA management about what they observed occurring. Difference does not mean inconsistency. Nor does it mean that evidence, which as in this case was effectively left unchallenged in cross-examination, can or should be rejected as unreliable. Each recollection can stand effectively without undermining the other. I am satisfied on the evidence that HPA management observed a number of employees who were rostered on for the night shift (including Mr Angwin) had ceased work and were meeting in the shift leader's office while on a speakerphone to a person whose voice was recognised to be that of Mr Keating. The employees were asked why they had stopped working and Mr Angwin answered that "This is a really difficult time. You have put us in a difficult situation. Why haven't you met with the union". When directed to return to work Mr Angwin said "We need some time". It was agreed that the employees could take their meal break early. By 2.30am employees who were meant to be working on the night shift instead presented a resolution to HPA management which was read out by and marked with Mr Angwin's name, and said:
We, the MUA R & F [rank and file] at Hutchison Ports Port Botany, on night shift 7/8/15 have passed a resolution to condemn the sacking of workers without consultation and move for the company to commence negotiations with our union immediately to resolve and avert this crisis.
UNANIMOUSLY ENDORSED
41 Mr Angwin also told management that if HPA would meet with the MUA the employees would return to work. HPA management directed the employees to return to work. Mr Angwin said "We don't want to do this but we have to". The employees refused to return to work. The employees continued to refuse to work for the balance of their shift. Meanwhile, Mr Keating and Mr Garrett of the MUA were erecting flags and placards around the Sydney terminal identifying, amongst other things, that the MUA would "never surrender".
42 Given the evidence I have no difficulty in inferring that the MUA, via its officers (specifically Mr Keating in the telephone call to Mr Angwin), organised the employees to refuse to work when required to do so from about 2.30am onwards. It is apparent that the employees were not motivated by any concern about safety. It is apparent also that, given the evidence, the suggestion that the resolution was a spontaneous reaction by employees to the sackings defies belief. The MUA had said it would do everything in its power to ensure that the sackings did not occur, and it said it needed to industrially mobilise the workforce and to win the workforce over in order to defeat what it saw to be an existential threat. Why, when it came to it, would it not be inferred that the MUA did what it said it would do?
43 It is not necessary that I attempt to identify each and every employee who engaged in the industrial action at this or any other time during the course of events until 14 August 2015 (although in tabs 83 and 84 of the court book the FWO has done so). This is because the evidence is clear. The night shift employees at the Sydney terminal did not return to work at all after the events described above. No employees worked until 14 August 2015. As to the Brisbane terminal, apart from a few employees not involved in stevedoring operations, it is apparent that from the start of the day shift at 5.30am on 7 August 2015, employee stevedores required to work who were present at the terminal, refused to and did not in fact work. This too remained the position until 14 August 2015. Both terminals were also the subject of pickets between 7 and 14 August 2015 which were arranged by the MUA.
44 While some employees (as identified in tabs 83 and 84) contacted HPA to explain their absence or otherwise had legitimate reasons for their absence, many employees simply did not attend work as required and some attended but did not work when required to do so. The analysis contained in tabs 83 and 84 identifying employees who did not attend work, which was prepared by Maria Loutsopoulos, a Fair Work Inspector, was available in final form from the morning of the first day of the hearing. Ms Loutsopoulos' affidavit provided a detailed explanation of the records and processes used to prepare the information in tabs 83 and 84. Ms Loutsopoulos was cross-examined but nothing in the cross-examination undermined any aspect of tabs 83 and 84. While she agreed that the exercise was not straightforward, it is apparent from her evidence that she gave careful consideration to all of the material to found the analysis in tabs 83 and 84.
45 Ms Loutsopoulos' analysis is in no way affected by the question whether or not HPA subsequently treated these employees as "fail to report" under cl 17.18 of the enterprise agreement. Nor does her evidence that she did not consider various parts of the enterprise agreement assist. The important fact is that no employee attended to or did any work except some "reefer monitoring" (being the monitoring of refrigerated cargo) at the Brisbane terminal for a week. The case is far beyond any circumstance where trying to identify one or other employee who did not receive notice they were required for work or did not receive such notice on time could be useful. To the extent that the MUA's submissions grappled with the facts of the case, I deal with them separately below, but as I have said the MUA's submissions never confront the reality of what occurred in the context of the MUA's own statements. For now, I will return to the chronology.
46 The Sydney day shift was due to start at 6.00am but the employees did not attend for work. Instead a number of the Sydney night shift employees who had attended but not worked since around 2.30am greeted the growing number of picketers outside the terminal. Between 4.59am and 6.41am Mr Keating of the MUA had telephoned Mr Angwin (who remained inside the Sydney terminal albeit not working) on three more occasions.
47 While the work stoppage by the night shift continued at the Sydney terminal, Mr Carnegie called Daniel Winzar, an employee at the Brisbane terminal a few hours before the start of the Brisbane day shift at 7.00am. Mr Winzar then informed HPA management that "we are not going to work today". After HPA management directed a return to work, Mr Winzar responded that he wanted union representation. At 7.12am on 7 August 2015, Mr Carnegie sent an email which refereed to the MUA's "industrial and community strategy" and asked also how things were progressing "legally".
48 In the meantime Mr Crumlin the MUA's National Secretary was communicating to Mr Smith the Assistant National Secretary that he, Mr Smith, needed to "get a structure, priorities and responsibilities straight away or it will get away from you". When the whole of the evidence is considered, I do not doubt that the "it" Mr Crumlin had in mind included the industrial action which was occurring. Mr Smith and Mr Crumlin then had a nearly 10 minute telephone conversation.
49 By 8.30am Mr McAleer, the MUA Branch President (Sydney) and National Vice-Presiding Officer was outside the Sydney terminal. By the same time the group outside the Brisbane terminal had increased to 100 or more people. At 9.20am Mr Smith emailed Mr Carnegie, Mr Crumlin and Mr McAleer saying "Everyone knows their immediate job at this stage and we should stick to our tasks and our guns". It will be noted that there is no suggestion of surprise or concern about the industrial action by employees, nor that such action might be unlawful, nor that the MUA wished to have nothing to do with such action because it was unlawful. Nor, for that matter, was there any expression of support by the MUA for this supposedly spontaneous action by employees. In my view, the terms of the MUA's internal communications support the inference that the MUA did exactly what it said it would do to protect its existence.
50 Mr Carnegie, the Branch Secretary (Queensland), was permitted to enter the Brisbane terminal at around 10.30am. Mr Carnegie met eight employees who were in the lunchroom instead of working and was heard to say to them "hang on in there, we'll sort this'" and "'we are here for you. We're with you all the way'". This is admissible against the MUA as first hand hearsay based on the exception of an admission made with authority (s 87 of the Evidence Act). Considered in isolation, it constitutes nothing more than evidence of MUA encouragement of industrial action, but it is a statement that needs to be considered in the overall context. Assessed in context, it is at least consistent with the inference that I have drawn of MUA organisation of and involvement in the industrial action. I draw no more from this evidence than that, and given the other evidence do not need the evidence even for that confined purpose.
51 After Mr Carnegie left the Brisbane terminal HPA management continued to ask employees if they were willing to return to work, to which the answer was "no". The employees remained in the lunchroom.
52 At 1.50pm on 7 August 2015 Mr Smith, the Assistant National Secretary of the MUA, distributed an email that referred to the alleged automation plan as "Phoenix Rising" and said:
Phoenix Rising was a plan by HPA to shed their contracts and their labour. It is union-busting 101….…We have put together a wide-ranging strategy that encompasses; industrial work, community work, a comprehensive legal strategy, in depth mapping, a broad communications strategy, political lobbying and building of alliances and coordinating international action against this multi-national rogue. Our wonderful members and supporters will be the basis of our response on the ground in both Brisbane and Sydney….This is the fight of the MUA. But it is also the fight of every other Australian worker and a global union struggle…We ask you to join us in this fight….We can win with unity in action…
53 A few parts of this should be emphasised. One, the "we have put together…" statement is a reference to the MUA having devised and arranged the whole strategy, which included "industrial work". If the MUA had not put together the employees' industrial action, it might be expected the email would have said so. Two, what follows includes "industrial work". Given all the other kinds of work identified as part of the strategy put together by the MUA I infer that "industrial work" is the industrial action by the employees. Third, the issue is identified as a "fight of the MUA". In other words, this is not merely the MUA supporting or even encouraging employees in their industrial action. The industrial action is itself the fight of the MUA. This inference is inescapable given the context of the MUA being subject to existential threat, the sackings being perceived to be a way of removing MUA delegates from the terminals and a cover for introducing automation and breaking the MUA's power. The context also includes the fact that, given the application of the enterprise agreement, all industrial action was unlawful. There was no industrial action that could be taken that would not contravene s 417(1). Such action could not be mere negotiations with the employer as HPA was refusing to deal with the MUA by this time. Indeed, forcing HPA to deal with the MUA was one of the primary objects of the industrial action.
54 In common with the employees at the Sydney terminal an employee at the Brisbane terminal, Trevor Wallin, read a statement to HPA management at around 3.00pm on 7 August 2015 that "the workers will not be returning to work until the company meets with the MUA". It will be apparent that this demand, as with the resolution of the Sydney terminal night shift employees, was for HPA to deal with the MUA, failing which the employees would not work. This demand is also consistent with the centrality of the MUA to the industrial action. HPA management directed the employees to return to work but was told that the employees would only perform the task of reefer monitoring. Two employees told an HPA manager that they wanted to work but "Bob" had told them not to. I do not use this evidence as an admission by the MUA as it is second hand hearsay if attempted to be used for that purpose. It is, however, relevant to prove that the actions of employees had nothing to do with concerns about safety.
55 The withdrawal of labour at both terminals, it must be inferred, was intended to pressure HPA to meet with the MUA. HPA considered that it had offered to consult and been stymied in its attempts by the MUA. The MUA considered that HPA had never consulted and was setting about to destroy the MUA by discriminatory sackings so that it could automate the waterfront. Whatever the truth of these perceptions, the relevant fact for present purposes is that the industrial character and purpose of the action is plain; the employees withdrew their labour as a means of pressuring the employer to deal with the MUA about the sacking of the employees.
56 In response to an application by HPA, the FWC issued an interim injunction in the afternoon of 7 August 2015 requiring the employees to cease industrial action. Employees were sent a copy of this order by HPA later that night. Suffice to say no employees turned up for work then or until 14 August 2015.
57 The continued belief of the MUA that HPA was trying to destroy the union is evident from the newsletter from MUA Queensland Branch of 8 August 2015 stating that "What Hutchison are doing makes sense only if their plan is to use a partial shutdown to break the union and re-equip the terminals in order to restart on a low-cost basis".
58 The MUA set up a strike fund to receive donations for the employees who were not working. It is relevant that the MUA itself identified this as the "MUA strike fund". In other words, the MUA knew what was happening was a strike and the fund was said to be for the "MUA strike fund and the Hutchison workers". Mr McAleer also gave a radio interview in which he confirmed the "fight" would continue until "we get some justice". Given the employees' demands, this must mean the re-opening of negotiations with the MUA.
59 It is apparent from his email of 8 August 2015 that Mr Crumlin wanted tight controls on MUA internal communications. In response to an email from Mr Carnegie about whether the strike fund would include funds for the Brisbane picket, Mr Crumlin complained that Mr Carnegie had "copied the world in". Mr Crumlin said the issue should have been sorted out at the meeting on 8 August rather than by email and referred to the "slip ups that create problems". From this I infer that the MUA officers were aware that creating documents concerning involvement in the industrial action would expose the MUA to liability and should be avoided.
60 On 10 August 2015 a meeting of employees was arranged at the Brisbane terminal. About 10 employees attended. A statement was read to HPA management to the effect that the employees wanted HPA to address the issue of the redundancies with the MUA. HPA management informed the employees that while it accepted that the two reefer monitors were working the rest of the employees who were not working would be considered to be taking industrial action. The other employees, who were rostered on for the day shift, remained in the lunch room and did not work. Otherwise the same situation continued at both terminals, the picket continued, arranged and supported by the MUA, and employees rostered on to work did not attend or attended but did not work. The matter was also back in the Fair Work Commission also on 10 August 2015 at which time the order was amended to apply to both the employees and the MUA. HPA distributed this order to the employees that evening.
61 In an email to an international colleague on 11 August 2015 Mr Carnegie described Mr McAleer as the MUA person who was "leading the fight in Sydney against Hutchison". I consider this statement was accurate and was not intended to mean only that Mr McAleer was simply arranging the picket, community support, and public relations exercise in Sydney, as opposed to doing all of those things and also having ensured or ensuring the employees continued their industrial action.
62 An email exchange between Kristian Bolwell, Senior National Legal Officer of the MUA, and Mr Crumlin and Mr Smith on 11 August 2015 is more revealing. It is apparent from the subject line in the email that Ms Bolwell had communicated that "Paul Brown from Baker McKenzie advises there wont (sic) be any talks until they see evidence the Orders have been complied with". From this I infer that the solicitors for HPA had informed the MUA's lawyers that unless the employees returned to work no negotiations with the MUA would take place. Mr Crumlin asked Ms Bolwell "So how is that demonstrated"? This alone suggests that Mr Crumlin knew that the MUA was controlling the actions of the employees. Ms Bolwell answered "Back to work". Mr Crumlin responded that "They're on stress leave the way I understand it. I need more specific legal advice than than (sic) please". It is telling that there was no suggestion from Mr Crumlin that the employees were spontaneously taking action and were outside of the control or direction of the MUA in respect of a return to work.
63 Also on 11 August 2015 the MUA commenced proceedings in this Court alleging that the termination of the employees was unlawful and seeking interim and final relief including orders for reinstatement.
64 On the morning of 12 August 2015 Mr Smith sent an email which said:
The MUA has now been injuncted off the picket lines by the courts and the workers have now twice been ordered back to work by the courts but they have stood firm and not returned to work… We have now extended our campaign into other areas as well. We are campaigning at Vodaphone stores as it is half owned by Hutchison, reaching out to the wider public executing as much leverage as possible…
65 For present purposes the relevant point is that the most natural reading of this email is that the employees not returning to work was itself part of the MUA's campaign.
66 Also on 12 August 2015 all National Officials and Branch Officials of the MUA were emailed a copy of an article in The Australian which said "The MUA has pulled back from its role organising the strike after the Fair Work Commission issued interim orders for the union and workers to end industrial action, however the manufacturing union was today co-ordinating the picket in Sydney…". Mr Smith's response was not to demur from the statement that the MUA had organised the strike, his email in response saying "Great article correctly disassociating us with the pickets".
67 Mr McAleer sent a text message to an unknown recipient in somewhat cryptic terms in the afternoon of 13 August 2015 saying:
…if workers are rostered but are too fatigued / stressed to work, that doesn't mean they can't attend but obviously it's a bad look if they do (cameras will record who's there). If they're not fatigued / stressed they're on strike.
68 I am not sure what to make of this message other than I do not take it as evidence contrary to the inferences I draw. It may be that people, including Mr Crumlin who made a similar statement above, had the notion that employees would not be taking industrial action if they said they were too stressed to work. The idea that no employees at all might work except in Brisbane for reefer monitoring by a collective experience of stress requiring leave (to which HPA never consented) itself indicates the degree of knowledge of the MUA about every detail of the events which were occurring.
69 On 13 August 2015 the Federal Court made orders requiring the companies to rescind their decisions to terminate the employment of the 100 or so employees and preventing the companies from any further termination of their employment pending the final hearing of the MUA's claims.
70 On the evening of 13 August 2015, Mr McAleer emailed himself some notes saying "I started my first rally down here a fortnight ago with we are going to fight we are going to win..Well we are going to win…Yes we have…We have won the first battle……Three cheers to mua wharfies in port botany..Three cheers to the mua wharfies in Brisbane..The mua has not won this alone….". It may be accepted that the MUA had not "won" anything alone but, again, the level of the MUA's involvement in the employees' actions is obvious.
71 Brisbane employees returned to work for the 7.00am day shift on 14 August 2015. The MUA admitted that at about 7.15am on 14 August 2015 Mr Keating called HPA management to advise that employees required to work at the Sydney terminal that day would commence work. The fact that it was Mr Keating of the MUA who made this call and that he was able to say that employees would return to work is powerful evidence of the extent of the MUA's control over the industrial action. It supports the inference that the MUA organised the industrial action of the employees from beginning to end.
72 Another exchange later that day confirms that the MUA controlled the employees returning to work, from which the necessary corollary is that the MUA also controlled the employees having ceased work. A group SMS between Ms Bolwell (MUA Senior National Legal Officer), Mr McAleer (Branch Secretary Sydney), Mr Garrett (Assistant Branch Secretary Sydney) and Mr Deakin (Assistant Branch Secretary Sydney) was in these terms:
Kristian Bolwell: 'You will need to ensure that everyone that is meant to be at work today turns up ready to work before shift time starts- or we will get orders.'
Paul Garrett: 'Bit of an issue with security blocking people going to work.'
Kristian Bolwell: 'Doesn't matter they just need to be ready willing and able. Paddy [Crumlin] is likely to come down to ensure it all goes "smoothly".'
Paul McAleer: 'Yeah it would be good if he did. We are texting everyone to come down early to make sure we can get them to start".
Kristian Bolwell: 'Great it's in progress.'
73 These are admissions made with authority of the MUA. They establish that Ms Bolwell and the others involved knew it to be the case that the MUA Sydney Branch Secretaries were able to ensure that employees at the Sydney terminal resumed work. There was no suggestion in this exchange consistent with the MUA's theory of a spontaneous action by understandably angry employees. The employees were understandably angry, but there is no real question that the MUA's campaign to ensure that HPA could not destroy its power at the terminals by making MUA delegates redundant included not only a media, legal, community campaign, and picketing of the terminals, but also industrial action by the employees. No-one in this SMS exchange within the MUA suggested that Ms Bolwell had everything wrong, the MUA had no involvement in the industrial action, and the MUA had no capacity to ensure that employees would return to work given that the industrial action was a spontaneous conduct of the employees.
74 I do not accept the submissions for the MUA that these communications do not bear the "slant" attributed to them by the FWO. I do not accept that the communications show nothing more than the MUA "seeking to encourage employees to attend work on 14 August". The communications demonstrate control by the MUA over employees returning to work. The necessary corollary is that the MUA exercised that power in the first place so that the employees did not work. This is not a matter of an "indirect and unsustainable" inference but simple acceptance of the MUA's own statements at face value.
75 To the same effect an email exchange between Melissa May, MUA Membership Administrator and Mr McAleer later on 14 August 2015 said:
Melissa May: 'MUA: All Hutchison 2pm starters please convene at Hutchison Terminal roundabout, 12.30pm. All members welcome to support workers return.'
Paul McAleer: 'Yes please. Can you send out another one to all members. Please all available members to support Hutchison workers going back into work after significant initial victory.'
Melissa May: 'No worries.'
Paul McAleer: 'Go ahead.'
76 Ms May's message is nothing less than a direction by the MUA to employees to return to work. Such a direction makes no sense unless the MUA also had and exercised the power to ensure the employees did not work during the industrial action. This evidence too is irreconcilable with the MUA's case theory of it doing nothing more than providing lawful support to spontaneous acts of employees absent any role of the MUA.
77 Something seems to have gone wrong with the return to work in Sydney and MUA members were recalled to the picket by various means. In the event, the Sydney employees returned to work at around 2.00pm. Mr Crumlin, on 15 August 2015, sent an email saying:
… we need to be very disciplined with Branch coms particularly social networking after the crazy escalation back to the call for everyone to go back to the assembley (sic) in Sydney yesterday while we were assuring Booth [Deputy President at the Fair Work Commission] all was well!
78 The MUA, it should be said, achieved its objective, although quite why the proceedings in this Court alone were insufficient for this end is not apparent. HPA was forced back to the negotiating table with the MUA. The sackings did not proceed. The workforce was reduced via a program of voluntary redundancies.
79 Whether the conduct of HPA was lawful or unlawful is not the point. Nor is it the point whether or not the HPA wanted to break the power of the MUA by discriminating against MUA delegates in the redundancies and introduce automation on the wharfs by stealth. Equally, it is not to the point that it might be considered that the employees honestly believed they had no option other than the withdrawal of labour to prevent what they perceived as a gross injustice. The issues are, were the employees engaged in industrial action and, if so, did the MUA organise that action and/or was the MUA involved in that action? It seems to me that the inescapable answer to these questions must be yes.
80 The evidence leads overwhelmingly to the inference that the MUA intended to and did in fact organise the industrial action in the required sense. In Australian Building and Construction Commissioner v Huddy [2017] FCA 739 at [147] this was said to involve "acts of positive and intentional conduct bringing about or maintaining, or contributing in a material way to the bringing about or maintenance, of industrial action". The FWO accepted in its submissions that:
To "organise" industrial action involves positive conduct which is intended to, and does in fact, induce or procure others to engage in conduct by "marshalling" "rallying" or "co-ordinating" employees to bring about or maintain the industrial action: Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525 at [53]; Australian Building and Construction Commissioner v Huddy [2017] FCA 739 at [66] - [72]; [147].
81 The inference that the MUA intended to and did in fact co-ordinate the employees to engage in the industrial action between 7 and 14 August 2015 must be drawn on the evidence. The MUA's own statements are inconsistent with the submission that it did no more than "encourage" or "enable" the employees to take industrial action. To the contrary, the MUA, confronted with sackings it saw as union busting, was determined that the employees would take industrial action and must be inferred to have done all in its power to ensure the employees did so, having recognised that it needed to "win" the employees over and industrially "mobilise" them in the MUA's perceived "war" with HPA. As the FWO submitted, it is necessary in the present case never to lose sight of the fact that this was not merely the MUA acting to protect employees. It was the MUA in what it perceived to be a war for its own existence, protecting the MUA's own interests. In this context, the inferences which must be drawn on the evidence do not depend, as the MUA would have it, on conjecture or speculation. They depend on the MUA's own words, taken with the events as they occurred.
82 The submission for the MUA that "it would have been illogical and counter-intuitive for the Respondent to have marshalled or otherwise organised the employees to take industrial action because this would have neutered the capacity of the Respondent to obtain the orders it was seeking from the Fair Work Commission by reason of clause 13.7 of the Enterprise Agreement" is unpersuasive. Clause 13.7 provided that a referral of a dispute to the Fair Work Commission was "subject to there being no stoppage of work…". The MUA did not see cl 13.7 as any kind of impediment at the time, however. So much is apparent from the fact the MUA continued with its action in the Fair Work Commission and rejected the proposition that cl 13.7 was an impediment to it so doing.
83 Otherwise, and to the extent the MUA's submissions engaged with the facts of the case, my responses follow.
84 The MUA characterised the resolution read out by Mr Angwin at around 2.30am on 7 August 2015 in these terms:
The resolution itself said nothing about taking industrial action. It did not assert that the employees were refusing to work. It did not say that the employees would only continue working if a particular demand was met. It condemned the conduct of Hutchison of sacking workers without consultation. It called on the company to negotiate with the Respondent.
It said nothing about the employees' labour being withdrawn unless and until Hutchison met with the Respondent. According to Ms Miles, Mr Angwin then said that if Hutchison met with the union, the employees would go back to work.
85 The problem with the submission is that it is disconnected from the facts. The evidence is clear. The employees had ceased working. They were given an early meal break as they requested. After reading out the resolution Mr Angwin told HPA management that the employees would return to work if the HPA would meet with the MUA. The employees were directed to return to work but refused to do so. In this context, it is plain that the resolution involved a demand under threat that, if the demand was not met, the "crisis" would continue. The "crisis" was the employee's refusal to work as required to do under the enterprise agreement. Accordingly, understood in context the resolution meant, was intended to mean and was understood to mean, that the employees would continue to refuse to work as required unless and until HPA management met with the MUA. The contrary submission is without merit.
86 As noted, the MUA's focus on discrepancies between the evidence of HPA management about the events in Sydney on 6 and 7 August 2015 is misplaced. It was not put to the witnesses that any such difference meant that their evidence was unreliable. It is inevitable that people will recall events differently and will emphasise different aspects of events. In any event, the essential facts are not the subject of any meaningful discrepancy. The employees had stopped working. They refused to return to work when directed to do so. The basic demand was that HPA meet with the MUA, failing which the employees would not return to work. Further, the industrial purpose of the employees is not dependent on the recollections of HPA management. It is manifest in the documentary evidence. The same may be said of the involvement of Mr Keating.
87 The same misplaced focus is apparent in the MUA's submission about the pro-forma direction to return to work which was read out by HPA management. The text of that direction was contained in an email of 6 August 2015. The text included the statement:
We understand this is an employee resolution not endorsed by the Maritime Union of Australia who would therefore be protected if you engaged in this conduct…
88 Ms Mihalopoulos, HPA's General Manager Human Resources and Industrial Relations, prepared this text. She said she read it out to employees after Mr Angwin read out the employees' resolution. The fact that Ms Miles does not refer to the text in terms of this statement is immaterial. Ms Miles' evidence was about the effect of what was read out. Ms Mihalopoulos says she read the script. If, as may be the case, the MUA seeks to rely on this statement as exculpatory evidence the short answer is that HPA's understanding is itself beside the point. The issue is not what HPA understood or said about the MUA's role but about the facts as found.
89 As to Brisbane, the submission that the events apparent from the evidence do not disclose any industrial purpose is without merit. The employees said they would not return to work. One employee demanded union representation. Mr Carnegie was granted access to speak to the employees on the day shift. He did so. Mr Wallin, an employee on the evening shift, read a statement that no work would be performed other than reefer monitoring unless HPA met with the MUA. The industrial purpose is manifest. The purpose was to pressure HPA to meet with the MUA about the sackings of the employees under threat of withdrawal of labour. The statement that there is "no evidence of any telephone calls or other communications between MUA officials and Mr Wallin" (the employee who read the statement) seems to overlook the basic fact that Mr Carnegie was permitted to access the terminal to speak to Mr Wallin's fellow employees from the day shift. It also does not matter if Mr Wallin was an MUA member or not. Nor is the issue one of common purpose between Mr Wallin and the MUA or use of evidence for hearsay purposes. Before Mr Wallin had read the statement, the Brisbane day shift employees had refused directions to work. Mr Carnegie visited, a visit which must be understood in the context of all of the evidence which the MUA's submissions disregard. The employees continued to refuse to return to work as directed. Mr Wallin read the statement which, objectively, mirrors the substance of that read in Sydney. More to the point, the employees continued to refuse to return to work. The MUA's submissions simply do not grapple with the evidence as a whole or its overwhelming force in establishing that the MUA organised and was knowingly involved in every aspect of this industrial action in Sydney and Brisbane.
90 The same considerations apply to the balance of the period of the industrial action. Evidence of communications between individual employees and the MUA on specific shifts is not required to establish the contravention by the MUA, given the wealth of other evidence available which leaves no room for any reasonable inference to the contrary of the MUA organisation and knowing involvement in the industrial action.
91 I do not accept the submission that "there is a lacuna in FWO's case in relation to the employees who did not work and did not notify why they were not working" merely because HPA did not undertake the "fail to report" process contemplated by cl 17.18 of the enterprise agreement. There was no requirement for HPA to do so. The inference that employees were engaged in industrial action, on the evidence, is unavoidable. The submissions to the contrary are divorced from any sense of reality given the evidence of what occurred.
92 The MUA's submissions about HPA's alleged failure to notify employees they were required to perform work in accordance with the enterprise agreement is also without merit. The only reason that HPA management had to introduce a new process for the rosters allocation is because the employees responsible for allocations were themselves not attending work as required in order to perform that function. On the evidence, it cannot be doubted that the allocators also withdrew their labour as part of the industrial action. This meant HPA management had to issue individual work orders to employees. Whether or not specific employees received work orders or received them within time under the enterprise agreement is immaterial when, on the evidence, no employee worked at the terminals during the period of the industrial action apart from the reefer monitors at Brisbane.
93 This is not a case of attempted industrial action which did not occur. The industrial action occurred. The problem for the MUA is that part of its comprehensive strategy plainly involved organising the unlawful industrial action. As discussed, the submission that there is a lack of evidence linking the MUA to the industrial action is fanciful. Confronted with what it perceived to be an existential threat, the MUA simply did what it said it would do - it went to "war"; it unleashed every tool available; it determined to deal with HPA industrially; it acted to ensure no MUA delegate went "under" on the waterfront; it ensured "industrial mobilisation"; it stopped HPA union busting; it won over the employees to its cause which it knew it needed to do; it fought to "the end"; it used "every lever" at its disposal; it ensured "unity in action"; it described the action to itself as an "MUA strike"; it described its officers as "leading the fight"; and once it had achieved its object of forcing HPA to negotiate with the MUA about the redundancies, it used its power to "ensure" employees returned to work, including issuing a direction to employees to return to work. On any reasonable view, the evidence undermines the MUA's submission that it neither took any positive step to induce or procure the industrial action, nor can be proved to have intended to do so.
94 It is not necessary to deal with the substance of the other, lawful, aspects of the MUA's campaign to achieve its objects. To the extent that the MUA submitted that when it used the word "industrial" to describe its intended strategy it did not mean industrial action, the context and surrounding evidence and circumstances including the very fact of the industrial action, speaks to the contrary. This is not a case which requires the use of a word to be closely analysed. Of course, the word "industrial" has many meanings. But meaning is derived from context and, in this case, the context leaves no room for doubt about what the MUA intended and what it in fact did. For the same reasons evidence of what MUA officials said to individual employees is not necessary. Nor is it to the point that there is evidence that 26 of the 946 telephone calls made by MUA officials during the industrial action were calls involving employees.
95 It is true that the picket is not alleged to constitute industrial action. The picket, however is part of the context and thus is relevant. The same can be said about all of the aspects of the MUA's strategy. They are relevant to context.
96 The submission that everything the MUA did and said is "reasonably (and rationally) explicable by reason of the Respondent seeking to meet with Hutchison about the termination of almost 100 employees by redundancy" is not only misplaced given that the relevant standard of proof is the balance of probabilities, but also itself may be rejected as unpersuasive. I have already identified that this was not only about the employees for the MUA; it was about the MUA's own existence as a power on the waterfront.
97 Otherwise it is not the FWO's case that the role of the MUA can be inferred from individual matters such as the wording of banners, the application by the MUA to the Fair Work Commission or anything else. As noted, the best evidence is that from the MUA's own communications. The rest is context and thus relevant.
98 The listing of potential so-called realistic possibilities of why employees did not attend work between 7 and 14 August 2015 (such as employees being stressed, upset and anxious as a result of the dismissal of a significant number of their colleagues) is misplaced. The FWO did not have to exclude any reasonable hypothesis consistent with the MUA's innocence. This is not a criminal case. As I have already said, I am satisfied that the inference of MUA organisation of the industrial action is unavoidable on the evidence.
99 The submission that the "employees were more than capable of making their own decisions in these circumstances. If they chose to withdraw their labour that is an understandable choice. It is a realistic possibility that employees, of their own free will and agency, elected not to attend work in light of the actions of Hutchison" is disengaged from the evidence, for the reasons already given. It is not a matter of treating the employees as "automatons under the sway of the" MUA. It is about a realistic assessment of the evidence as a whole, a task that the MUA's submissions eschewed.
100 Given these conclusions, it necessarily follows that the FWO has established that the MUA both organised and was involved in the industrial action in contravention of s 417(1) of the Fair Work Act. It is true that the FWO's pleading did not identify which sub-section of s 550(2) the FWO relied upon to establish the MUA's involvement in the industrial action. But the MUA could not have been taken by surprise by the way in which the FWO put its case in this regard given that the FWO's opening written submissions identified the alleged liability of the MUA on the basis of its knowledge of and knowing participation in the industrial action, citing in support the following principles which are not in dispute:
…To be involved in a contravention, the alleged accessory must have knowledge of the essential elements of industrial action and be an "intentional participant": Yorke v Lucas (1985) 158 CLR 661 at 670.
Actual knowledge of the relevant circumstances required for accessorial liability may be inferred from a combination of suspicious circumstances and a wilful failure to make inquiry: Giorgianni v R (1985) 156 CLR 473 at 482, 487, 507-8; Fair Work Ombudsman v Devine Marine Group Pty Ltd [2013] FCA 1135 at [43].
Being knowingly concerned in a contravention requires association with, implication in, or a practical connection with the contravening conduct: Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 at [26]; Qantas Airways Limited v Transport Workers Union of Australia (2011) 280 ALR 503 at [324]. A person's knowledge of each element of a contravention may be inferred from all the circumstances: Australian Building and Construction Commissioner v Huddy [2017] FCA 739 at [455] - [456].
To participate in a contravention, what is required is merely the doing of something which acted to help, encourage or induce the contravention: HIH Insurance Limited (in liquidation) & Anor v Adler [2007] NSWSC 633 at [35]. The accessory "must merely have done something to assist or encourage the bringing about of the contravention": HIH Insurance Limited (in liquidation) & Anor v Adler [2007] NSWSC 633 at [37].
101 Accordingly, the FWO did not have to prove that the MUA aided and abetted, or counselled or procured, the contraventions, but I should say that I consider the inference must be drawn that the MUA did counsel and procure and was knowingly concerned in the industrial action given the evidence discussed above. Otherwise the focus in the MUA's submissions about the lawful actions of the MUA, such as the media campaign, misses the point that this is contextual evidence, but the real bite in the evidence is what the MUA said it would and could do and what in fact occurred. The submission that it has not been proved that the MUA had actual knowledge of the elements of the contravention is without any merit. Ultimately, this submission collapsed into the also unmeritorious pleading point which I rejected at the outset.