The facts
19 From October 2007 to May 2010 the MUA was the union representing the majority of the OMS workforce. Ian Del Rosso, Executive General Manager of OMS and Marten Quirk, its Human Resources Manager, dealt with the MUA regularly. Quirk worked in that capacity at the Perth office of OMS from October 2008 to September 2010 and as its General Manager, Crewing from September 2010 to the present. His responsibilities as Human Resources Manager included the selection, recruitment and management of employees and as General Manager, Crewing, his responsibilities included all crewing matters arising with respect to employees, including matters involving the various maritime unions.
20 The issues the MUA raised with OMS between about mid 2008 to late 2009 (the relevant period) included crewing, pay disputes, industrial issues, vessel inspections, enterprise agreement negotiations and negotiations for specific Memorandums of Understanding (MOU). MUA officials at its Western Australia Branch involved in communications on these matters with OMS included:
(a) Chris Cain, Western Australia State Secretary of the MUA;
(b) Ian Bray, Western Australia Assistant State Secretary of the MUA;
(c) Will Tracey, Western Australia MUA State Organiser; and
(d) Michael Canning, MUA Western Australia State Organiser.
21 Ms Tamianne McSherry (formerly Wright) was an employee and/or agent of OMS acting in that capacity within the scope of her actual or ostensible authority. She worked at the Perth office of OMS and had direct responsibility in her position as "Crewing Officer", for the placing of employees of specific classifications, including stewards, on offshore vessels. Her responsibilities included offering employment to individuals on behalf of OMS.
22 I will, for the sake of convenience and ease in appreciating the evidence, refer to Ms Tamianne McSherry as Ms Wright as this was her surname at all relevant times and it is that name which appears throughout the documentary evidence.
23 Ms Wright said that she was one of approximately 10 Crewing Officers at OMS and when she joined she learned from them and from Quirk, including during crewing meetings, of a practice within OMS which involved deliberately not placing employees on vessels where the employees were not members of the MUA. The Crewing Officers were authorised to place employees on vessels and to decide which employees were offered placements. However, as she stated, these decisions were subject to the practice set out above.
24 She explained that the practice which she and the other Crewing Officers followed to fill a role would involve looking at an emailed list or spreadsheet which Quirk or Del Rosso provided to them from time to time.
25 This list was from the MUA database and listed names, positions and contact details of "beached" members of the MUA who were available to be placed on vessels. "Beached" MUA members were those presently out of employment. When a job came up she would initially contact MUA members from the list or from other information sources available to her. If her attempts to fill the position with an MUA member were unsuccessful she would then consider non-MUA members.
26 During the relevant period, officials from the MUA would regularly contact Del Rosso or Quirk by phone or in meetings in person to pressure OMS to employ only people who were members of the MUA. Del Rosso, when asked what it was that led him to the conclusion that such pressure existed was somewhat equivocal in his response. He said that OMS "had to - or there was a preference" for it to utilise the database as a means of recruitment. The "database" is the same document which Ms Wright described as a list emailed to Crewing Officers from time to time. He later said the MUA database was to be used as the predominant document in OMS obtaining recruits. It is equivocal obviously in the language employed. However, it is so also because the focus of his attention was on the use of the MUA database rather than any actual employment practice. However, the tenor of the statements both written and oral which I have set out below demonstrate that indeed commercial pressure, as I have described it, was brought to bear against OMS by MUA officials in the form of intimidating and threatening language.
27 The officials who would contact Del Rosso and Quirk included Cain, Bray, Tracey and Canning.
28 Quirk describes these telephone calls as "unpleasant" and states that the MUA officials used abusive language and threatened to stop or disrupt a job on a boat if OMS did not meet their demands. I accept this evidence. Del Rosso agreed in cross-examination that at times the MUA's advocacy was vigorous, intrusive, heated and even abusive. This was characterised by senior counsel for the MUA as in the nature of the seafaring industry which was a "boisterous" one. Del Rosso agreed to this as well but added that it should not need to be that way. However, boisterous conduct is not to be equated with commercial intimidation by the use of threats.
29 During the relevant period when non-union labour was placed onboard vessels, MUA members on those vessels would advise their branch officials that this was the case and the MUA would take this up as an issue with OMS.
30 Quirk received phone calls from MUA officials in which he was told, in words to the effect "Get these people [non MUA members] off [the boat]" and "our existing employees won't work with these people [non MUA members]".
31 During the relevant period MUA officials told Del Rosso not to send prospective employees to the MUA office to sign up as members as the MUA already had enough members.
32 On 3 August 2008, Bray emailed Del Rosso regarding the filling of a position on an offshore vessel, stating, inter alia, "When I spoke to you it was agreed that the position would be filled by an MUA member...Can you please confirm that OMS will send out a ticketed FRC IR to the vessel ASAP?"
33 From October to November 2008, Quirk received a couple of telephone calls from Cain and Bray relating to the placement of staff on vessels by OMS. In one of the conversations either Cain or Bray said to Quirk, "There are still people out there who are not on our books. Do something about this or we'll shut down the vessel". I infer that the expression "not on our books" is a reference to people who were not members of the MUA.
34 On 9 October 2008, Bray emailed Quirk with a copy to Cain regarding several outstanding issues to be resolved, including the following assertion:
3. Non union personnel being sent to vessels.
35 On 9 October 2008, Quirk emailed Bray in response later that same day and in respect of numbered para 3 in Bray's email he said:
3. I have a draft memo for the crewing officers to give them advice on an internal process for this not to occur. In summary this follows your rules and includes some of my own. And agree this is not acceptable and is to not occur from this point onwards (fingers crossed).
36 Quirk's use of "your rules" I infer to be a reference to the MUA's requirement that OMS employ only MUA members. I find it probable that Bray would have either forwarded this email to Cain or told him of its content. They each, and therefore the MUA, then knew that OMS was formalising, in written form for distribution to its Crewing Officers, an internal process to ensure that non-MUA personnel were not to be employed on vessels. This was a clear indication to the MUA that OMS had formally succumbed to its demands for a closed shop.
37 This draft memo, in its final form, was the "MUA Membership Memo" which Quirk emailed to the OMS Crewing Officers on 6 November 2008. I will refer to this Memo later.
38 On 10 October 2008, Quirk emailed Cain in response to a query as to whether an OMS employee was an MUA member:
Mike Stafford has apparently had phone calls from you saying that Stephen is not qualified or does not have a Union book to be able to join the vessel. I have rung The cook and he advises me of the following: .... Membership current .... I hope this clarified any doubt.
(Transcribed without amendment)
This and the following email are examples of Cain monitoring the maintenance by OMS of the OMS employment practice.
39 On 15 October 2008, Cain sent an email with the subject "Shorthand C8" to Del Rosso, Bray, Tracey and Canning, which stated:
Ian, we need to have a meeting on the labour especially the stewards and caterers that are not being picked up. I am sick of hearing that your staff are picking up first trippers whilst we have a people on the database. I sent you an email a while back on this issue with no reply. Regards Christy Cain.
40 On 15 October 2008, Tracey sent an email to Cain, and copied to Del Rosso, which stated, inter alia:
… Again another issue with what the OMS staff are doing off their own bat. There have been issues with them running off guys who raise issues and splitting up some of our guys. If this is the way they are going to deal with us and some of these girls can't get there head around what an organised industry looks like or what a relationship with the MUA means then we should respond appropriately and maybe, just maybe, the message might get through ….
41 On 15 October 2008, Del Rosso replied to the email from Tracey and copied in Cain, Bray, Canning and Quirk and stated:
This shows the issues we are having with the mua when chris or ian are not around, no disrespect intended to anyone, however, if you think you have the shits then I welcome you to sit in my seat, this is a false accusation and purely an assumption I can assure you I don't have time to think of this sort of stuff and neither does anyone else in the mua. I will not tolerate messages such as this or those sent via reception demanding calls on the threat of stopping a vessel sailing we also have a right to move crew around and insinuations such as this are unfounded. I am happy with the good communications and good working relationship we have with all the mua. This was handled by marten quirk yesterday and you need to hear both sides of the story to get the whole picture not just make assumptions on your opinions.
[Transcribed without amendment]
42 In around October 2008, Del Rosso was reminded by both Cain and Bray that he and other relevant personnel within OMS were required to consult the MUA database of its members provided by the MUA to OMS from time to time. He was also told that reference was to be made to this database rather than reliance on applications sent directly to the OMS offices.
43 The provision of this database by the MUA to OMS, I find, was to enable OMS to know who were MUA members in applying the OMS employment practice and indeed to ensure that OMS maintained this practice.
44 The subject of non-MUA members being employed on occasions by OMS arose on various occasions. For example, Bray sent an email dated 15 October 2008 to Del Rosso and copied to Cain, Tracey, Canning and Quirk which included:
We also want the issue of non union caterers or Hydrocarbon caterers addressed. We would like OMS to identify all caterers currently employed on [vessel] Castoro shown to us and if there are any out there then it needs to be remedied.
45 On 23 October 2008, by email to Quirk copied to Del Rosso and Cain, Bray responded to the 9 October 2008 email from Quirk by stating, relevantly:
Martin, … Point 3 [a reference in Bray's 9 October email to non-union personnel being sent to vessels] will continue to be monitored.
46 This was a direct reference by Bray to whether non-MUA personnel were being sent to vessels. That it was to be monitored by the MUA was, I infer, from the context of the communications as a whole to this date a warning that the MUA would be checking OMS employees to see that non-MUA personnel were not given employment on vessels to which labour was supplied by OMS.
47 During the second half of October 2008, Quirk received a number of telephone calls from officials of the MUA to the effect that all people going out on to vessels should only be people that were in the MUA. These calls were mainly from Cain and Bray and to a lesser extent, from Tracey. During these calls, the language used by these MUA officials was abusive. In some of these conversations the MUA officials would threaten industrial action if OMS did not comply with their demands. The type of industrial action that was threatened was that the MUA would instruct crew not to perform certain key tasks which would result in the crew not being able to perform its normal contractual obligations.
48 Ms Wright gave evidence that she sent persons on a number of occasions to the MUA offices to apply for MUA membership. She said she received telephone calls from someone from the MUA offices telling her she should not be offering jobs to people who were not MUA members and that jobs should be given only to beached MUA members. She said that a number of calls involved the MUA representative shouting at her and using terms of abuse. I believe her evidence.
49 Prior to 6 November 2008, Quirk received a call from either Cain or Bray and was told "there are still people out there who are not on our books", meaning people who were not members of the MUA, and he was told to "Do something about this or we'll shut down the vessel".
50 On 6 November 2008, Quirk sent an email to Crewing Officers of OMS and copied to Del Rosso with attachments which included a Memo, of the same date, concerning "MUA Membership" (MUA Membership Memo). This Memo, as I mentioned, had been foreshadowed by Quirk in his email of 9 October 2008 to Bray. The Memo was in the following terms:
To: Crewing Officers
From: HR Manager
CC: Ian Del Rosso
Date: November 8th 2008
Re: HRMGR 002 - MUA Memberships
____________________________________________________________________
To All Crewing Officers:
RE: MUA MEMBERSHIPS
Recently some seafarers have been engaged without a MUA membership. At present the MUA has 100% coverage on all positions that are covered by the MUA.
MUA cover the following positions:
. . .
Prior to being engaged offshore the question needs to be asked "are you in the MUA?"
If the answer is No then a process needs to occur prior to the seafarer going offshore.
1. Advise Seafarer that the HR Manager needs to be consulted and we will get back in touch to discuss further.
2. HR manager is to determine whether or not no other MUA members are available for work using all available means available.
3. If no other MUA members are available for employment the HR manager is to discuss the situation with an Elected MUA official.
4. If MUA official agrees to consider the person going offshore then the seafarer is to be contacted and advised that he needs to have an appointment made at the MUA branch closest to the potential employees home address.
5. If the MUA Official decides to approve the person for a membership then the seafarer will pay for the membership and get signed up at the appointment with the union official.
6. When the Union official advises that the person has a Membership ("Book") then OMS will engage the seafarer for the position.
• At no point is the Person employed prior to having a Union membership and at no times are Flight Details to be sent to the person prior to a Union Membership being issued.
• At no point is a Rating to be sent to sea without a MUA membership.
• If at any times the crewing officer is in any doubt then the HR manager is to be consulted.
51 It was this Memo which formally recorded the OMS employment practice.
52 From 6 November 2008 and continuing the MUA was aware of the OMS employment practice. Indeed, it had prior to that time advised, encouraged or incited OMS to adopt and maintain the OMS employment practice within the meaning of ss 796(5) and 797(3) of the WR Act. It also, after that time, advised, encouraged or incited OMS to maintain the OMS employment practice which is established by the balance of the findings of fact I have made. The MUA, by its officers I have identified, threatened industrial action against OMS if it did not implement and maintain this practice. It is evident upon a consideration of these communications as a whole, including those after 6 November 2008, on a continuing basis, that the OMS employment practice was what the MUA demanded. Any breach of it resulted in threatening communications from MUA officials. OMS generally complied with the demands attended by the threats. This it seems, regrettably, was the price it felt it had to pay to run its business. This is not to say that the MUA actually saw the MUA Membership Memo sent by Quirk. However, I find that its contents, in substance, were generated as a result of and in order to record the closed shop demanded of OMS by the MUA through its paid officials.
53 During December 2008, the Loves moved from Victoria to Perth. From January to December 2009, they sought employment with OMS as cleaners and/or stewards but as they could not obtain membership with the MUA, despite all their efforts to do so, they were never employed by OMS although it actually wanted to employ them and had employment available for them.
54 Mrs Love contacted OMS by telephone on 5 January 2009 and spoke to Ms Wright and said that she and Mr Love were looking for work on an offshore vessel as stewards or cleaners. She explained to Ms Wright both their qualifications and employment history. Ms Wright arranged for the Loves to attend OMS to discuss job opportunities and mentioned to Mrs Love that they would need to join the MUA in order to get a job with OMS.
55 On 5 January 2009, Mrs Love called the MUA and enquired about membership. She was told that she needed a job before she could become a member of the MUA.
56 The Loves then attended a meeting in early January 2009 with Ms Wright at the offices of OMS in Perth to discuss employment as cleaners and/or stewards on offshore vessels that were supplied labour by OMS. Ms Wright told the Loves that in order to secure employment with OMS they would have to undertake several training courses, obtain a "maritime passport", pass a medical assessment conducted by OMS, as well as join the MUA.
57 Ms Wright gave the Loves a handwritten note on OMS letter head with details concerning positions as cook's assistant and chief stewards which included the words "MUA (union)". Ms Wright was in fact talking to them about joining the Union when she wrote the note. I infer that this notation corresponded to what the Loves had been told by her about the requirement that they became MUA members before OMS could employ them. She told them about this, I find, because it was a requirement of the OMS employment practice.
58 During January, the Loves attended the offices of the MUA at Level 2, 2-4 Kwong Alley in North Fremantle to enquire about becoming members of the MUA. The Loves were told that they could not become members because they did not have jobs. Nonetheless, the Loves filled in forms applying for membership with the MUA in the hope that this would speed the process up.
59 Later that month, the Loves registered to complete the Australian Maritime Safety Authority Certificate of Safety Training SCTW95 at the Australasian Maritime Institute of Australia (AMI). Ms Wright also arranged for each of them to undergo medical assessments. The Loves paid for and completed the Elementary First Aid Certificate at AMI. Mrs Love passed her medical assessment in mid January. Mr Love did not pass his medical assessment at that time.
60 On 22 January 2009, Ms Wright sent an email to Mr Love which stated:
Sorry I haven't been able to get back to you i have a little hectic! Just wanted to let you know I haven't forgotten you :) I have spoken to the doctor and have both of your medicals. Bruce as you know you were deemed temporarily unfit, this is ok if you have taken the measures recommended by the doctor then we can re submit you for the medical and get you passed and then get you on the vessel ...
Let me know when you feel you have met all the requirements and I will book you back in ... you wont need to do the whole medical again.
Hope you have a good day :)
Thanks
Tami
(Transcribed without amendment)
61 Mr Love passed his medical assessment on 23 January 2009 and the same day advised Ms Wright of this by email and also mentioned that he and Mrs Love had completed their first aid training and were both booked in to complete further training from 4 February 2009 for 7 days.
62 Sometime between 23 and 30 January 2009, Ms Wright sent pre-employment forms to the Loves which included "Employee Letter of Engagement - Temporary Marine Placement" for the position as a "Steward", "Employee Banking and Superannuation Information" and Tax File Declaration Forms.
63 The Loves completed these forms and on 30 January 2009, returned them to OMS.
64 On 6 February 2009, Cain sent an email to Quirk, Del Rosso, Tracey and Canning with the subject Jascon 25. In that email Cain stated:
Ian/Marten, I have heard from are members on the Jascon and here in Perth. They tell me that Seatrucks are knocking back a lot of are experienced Carne Drivers for this project. If there are Australian Crane Drivers available who are members of the MUA, with Australian Qualifications, and they are available for work then we expect them to get the job. Under no circumstances will we except expat labour. I am prepared to meet on this issue but that is are position. Once you have all the AUSTRALIAN cranedrivers could you send me there names to do a check on there fiaciallity. Regards Christy Cain Also I am hearing that this vessel is 5 to 6 weeks from sail down and we reserve the right to inspect this vessel again if need be regards.
(Transcribed without amendment]
65 Although concerning non-Australian crane drivers employed by OMS this email is yet another example of Cain demanding that OMS employ only MUA members. The expression "check on their fiaciallity [sic]" I infer to be referring to the employees being "financial" or "paid up" members of the MUA.
66 Between 6 and 12 February 2009, the Loves paid for and completed all necessary training courses to obtain employment with OMS. This included fire prevention and fire fighting training, personal safety and social responsibility training and personal survival techniques training. After completing each course the Loves would telephone Ms Wright and update her on their progress. In these conversations Ms Wright would reply with words to the effect: "Oh, that's good. We should have something come up soon."
67 Later in February 2009, the Loves paid for and obtained Maritime Passports from the Australian Maritime Safety Authority.
68 On 25 February 2009, Mrs Love called Ms Wright who said that there was a position coming up but that before she and Mr Love could work offshore they needed to complete the helicopter underwater escape training course (HUET/BOSIET). Ms Wright told Mrs Love that she and her husband would have to go down to the MUA's offices and tell the MUA that OMS had a position on a vessel for them both and that they needed to become members.
69 Later that day, Ms Wright emailed Mrs Love confirming that she had enrolled them both in the HUET/BOSIET course from 26 to 28 February 2009.
70 Shortly after this, again on the same day, Mrs Love emailed Ms Wright in which she said:
Wondering about joining the Maritime Union, our only chance to do so is today, do we need conformation [sic] that we have employment from OMS to do so?
71 A few hours later, Ms Wright replied by email stating:
OMS will have a position available for you if not on the [vessel] Jascon 25, which is crew changing this weekend ... then we also have the [vessel] Castoro Otto that has 3 regular crew changes a week. Please approach the MUA (union) in regards to your memberships and let them know that you have been offered a position and let me know if you need any more confirmation.
72 So it was that on the 25 February 2009, the Loves attended the MUA offices in North Fremantle. They advised the receptionist that they had been offered jobs with OMS and that they wanted to become members of the MUA as they had been told by OMS that it was a condition of actually getting the jobs with OMS that they become members of the MUA.
73 The receptionist said they would have to speak to a particular person. She arranged this. I am satisfied that this person was Cain. Mrs Love identified him from a photograph of five men of which he was one. The MUA submit that, on the balance of probabilities, her evidence is unlikely to be reliable because she had only seen him once for about five minutes some three years prior to her photo identification. I accept Mrs Love's evidence. She was quite clear in her recollection that it was him. Cain could have given evidence to say that it was not he who spoke to them. He was not called nor was any explanation proffered to the effect that he was unable, for any reason, to attend. In addition to my reasons for accepting Mrs Love's evidence, I infer that had he been called as a witness his evidence would not have assisted the MUA on this issue. Both Quirk and Del Rosso also identified this same photograph as depicting Cain, whom they both had met.
74 The substance of the conversation which ensued according to Mr Love's written evidence was as follows: Cain asked the Loves, "What are you doing here?" Mr Love replied, "Well, we've come to join the union. OMS have offered us a position". Cain said, "Oh have they now? Who sent you?" Mr Love replied, "Tami Wright from OMS". Cain responded, "Oh did she? Wait a minute, we'll see about that". The MUA submits that the assertion by Mr Love that Cain said "We'll see about that" is reconstruction.
75 As the MUA point out, Mr Love did not tell the FWO, in the course of its investigation, during his interview by Mr Smith, one of its Inspectors in June 2010, that Cain had spoken these words. In fact, Mr Love said to Mr Smith that he could not remember whether Cain came back out of the office. When, under cross-examination as to these inconsistencies, it was put to him that he had reconstructed his affidavit evidence as to this conversation as a result of things he had seen and heard since June 2010, Mr Love did not accept this. He said that since that time the content of what he deposed to in his affidavit had come to his mind as he had thought over the events of 25 February 2009. I believe him as to this and I accept his evidence as to what Cain said. I have come to this conclusion with added confidence because Cain, who could have given evidence as to what he said, was not called as a witness.
76 Cain left the Loves in the reception area and then, according to Mr Love, went into an office where he immediately made a phone call. Mr Love heard Cain say, amongst other things, words to the effect, "How dare you send them here to join". He described Cain's voice as very bullish, angry and raised. He also described Cain's language as being "pretty foul". According to Mr Love, when Cain returned from making the phone call he said, "Oh, you'll just have to wait". Again, the MUA, for the same reasons, submit that this is a reconstruction by Mr Love. Again I accept Mr Love's evidence.
77 Indeed, I have no hesitation in believing Mr Love's evidence generally and specifically as to what happened at the MUA's offices on that day. He gave his evidence carefully and in a measured way.
78 Mrs Love said that Cain went into a nearby office and made a telephone call during which he spoke with a "raised voice" but, unlike Mr Love, she did not hear any of the conversation. There is nothing extraordinary in that. She may have been standing further away from Cain's office than her husband or have been distracted. After Cain's call to Ms Wright, according to the written evidence of Mrs Love, Cain said to the Loves words to the effect, "You'll just have to wait, we'll call when a position is available. Don't call us, we'll call you" and that she had gained the impression that "the door to join the MUA was closed".
79 The MUA submits that Mrs Love's affidavit and oral evidence that she heard Cain say these things should not be accepted on the balance of probabilities because, as at 1 June 2010, when interviewed by an Inspector at the FWO, Mrs Love initially recalled that she in fact departed from the MUA office on 25 February 2009 with the impression that the Loves could join the MUA, and that all that was said by the man at the MUA office was that "he would call us", and that it was not until after she later spoke with Ms Wright that she had formed the view that there would be any difficulty with joining the MUA.
80 The MUA contends that the critical influence in what it characterises as Mrs Love's later recollection being reconstruction, was the subsequent discussion that she had with Ms Wright. It submits that her evidence that she left the MUA office on 25 February 2009 "feeling shattered" is patently unreliable. It submits that the true position was that, as Mrs Love recalled in her record of interview on 1 June 2010, the Loves were merely told that they would be called "when it was [the Loves'] time to join the union".
81 The MUA also points up that Mrs Love's account of what was said to her and Mr Love by Cain is not even corroborated by Mr Love. It submits that Mr Love's account is closer to Mrs Love's initial version given in her record of interview ("you'll just have to wait"), and does not include any reference to "position" or "don't call us".
82 The MUA submits further that, even if the Loves had been told by Cain on 25 February 2009 "don't call us, we'll call you", this is in conformity with the requirements for processing membership applications under the registered rules of the MUA (the Rules), and cannot amount to a refusal to grant membership of the MUA to the Loves, as membership of the MUA could not have been conferred on 25 February 2009. This, it submits, is because, according to the Rules, Cain was required to immediately forward the Loves' completed applications for membership to the National Secretary for his decision. Membership could not be granted until their applications were accepted by the National Secretary and upon the Loves paying membership contributions: r 6(d) of the Rules. Thus, the MUA submits, on 25 February 2009, the Loves could not have been denied that which could not have been conferred.
83 It is of no moment whether Mrs Love thought when she left the MUA offices on 25 February 2009 that they could become members or that it would be difficult to do so. I think it probable that Mrs Love, as she said in evidence, left the MUA offices on that day "feeling shattered". It was, in truth, a shattering experience. The Loves were in difficult financial circumstances and yet had managed to scrape together sufficient monies to obtain the necessary pre-employment qualifications and undergo particular vocational training. They knew jobs were waiting for them with OMS if only they could get membership of the MUA. I find that they were treated dismissively by Cain. He did not say that their membership applications would be processed or in any way encourage them to think that they might become members. His language and demeanour toward them and his phone call, while they were at the MUA offices, to Ms Wright, were in the opposite direction.
84 The evidence discloses that, as at 25 February 2009, the MUA, through Cain, knew that OMS wanted to employ the Loves but, in accordance with the OMS employment practice, would not do so unless and until each had MUA membership. Cain was not prepared to allow that to happen then or later. As I have already found, MUA officials had advised Del Rosso not to send prospective employees to the MUA office to sign up as members of the MUA as it already had enough members.
85 After the conversation with Cain, the Loves completed their respective MUA membership application forms. I infer that Cain never sent their membership applications to the National Secretary. Had he done so there would, in all probability, have been some written response from the MUA to the Loves. There never was. I am assisted in drawing this inference by the fact that Cain did not give evidence. For these reasons, I reject the submission that, when Cain told the Loves, as in substance I find he did, "don't call us, we'll call you", he was him acting in conformity with the rules of the MUA. Rather, I find he was acting in conformity with the position communicated earlier to Del Rosso, that OMS should not send people to apply for membership as the MUA already had enough members.
86 I infer, from the fact that it was Ms Wright who sent the Loves to the MUA offices on 25 February 2008 and that this is what they told Cain, that it was she whom Cain telephoned. According to Mrs Love, Ms Wright confirmed this to her. Ms Wright had originally not cooperated with the FWO in providing a statement. Only belatedly did she do this. I cannot speculate as to the reasons why this is so. However, there is no doubt that she sent the Loves to the MUA offices to say they had been offered employment and to apply for membership. I have found that Cain rang her while the Loves were still at the MUA offices. I have accepted Mr Love's evidence as to what he heard. Their employment offer never bore fruit after Cain's call to Ms Wright either that day or for the rest of 2009. Taken in the context of the OMS employment practice, Cain's phone call to Ms Wright on 25 February 2009 warrants a finding that the MUA, by Cain, advised, encouraged or incited OMS, through Ms Wright, in accordance with that practice, to not employ the Loves.
87 I make these findings despite the fact that the evidence provided by each of the Loves to the FWO inspectors during examinations in June 2010 is not entirely the same as that given by them in their affidavits or their oral evidence in this proceeding. It is not uncommon for witnesses to express their recollections of past events using different language when doing so at different times and in different circumstances. Nor is it uncommon for people, with the benefit of more time to reflect on past events, to remember additional matters of detail.
88 For example, the circumstances each found themselves in when attending the FWO examinations, being separated from each other and asked questions in a non-curial setting is quite different from being proofed by a solicitor for the preparation of their affidavits for tender in evidence in this Court. When faced with the prospect of making affidavits it may well be that the Loves were more focussed. Sometimes recollections do legitimately improve with more time and reflection. There is nothing sinister or necessarily unreliable in this. I do not regard Mr Love's evidence on this issue as either weak or unreliable. Even as between themselves, the Loves' testimony is not always the same in the detail. Again, that is unsurprising in human experience. However, the substance of their evidence is broadly consistent. They wanted very much to become MUA members. They knew, because Ms Wright had told them, that without this they could not get the proffered OMS jobs. They both spoke to Cain. He was dismissive in his attitude in the way he spoke to them. It matters little as to the precise words Cain used, for example, whether he said "We'll see about that" or "You'll just have to wait". He made a phone call from a nearby office. His voice, as Mr Love described it, was "very bullish, angry and raised". The language Cain used in this phone call was "pretty foul". I have said that I accept Mr Love's evidence as to what he heard. Ms Wright confirmed to Mrs Love that Cain was quite angry when he spoke to her way during a phone call from him while they (the Loves) were still with Cain. These matters, viewed in the context of the other facts, as I have found them, demonstrate that Cain was not prepared to countenance the Loves as members of the MUA at that time or afterwards. I find, however, that it is likely that the effect of what he told them was that they would have to wait. This is exactly what they did. They waited, and for the rest of the year, they waited in vain.
89 That this was so was because, as I find, the MUA either failed to consider their applications for membership, or failed to otherwise process them because they had decided not to admit any new members during this period. Del Rosso, as I have found, had been told by MUA officials not to send people to the MUA office in Western Australia to become members as the MUA already had enough members. This, effectively, as Cain knew, meant that the Loves would not be offered employment by OMS.
90 Later in the afternoon on the same day, Quirk emailed Cain with a copy to Del Rosso (Subject: "Non MUA memberships") and stated, inter alia:
Before this goes any further let me explain what has occurred:
1. Crewing officers looking for stwds
2. Stwds contacted initially are existing oms employees.
3. Stwds on data base contacted for work. Those contacted weren't avail. Others on list not contactable.
4. Crewing officer went to resume file.
5. Some stwds were contacted then the following occurred -
a. Crewing officer asked are you avail for work?
b. Crewing officer then asked are you in the union?
c. Potential stwds said no.
d. Crewing officer then said sorry we can't employ you and left it at that.
So I'd say as a result of our calls they have rung you to enquire about a membership. At no time has oms given them a job that I am aware of.
(Transcribed without amendment)
91 Quirk said that he sent this email in an attempt to ask the MUA to back-off and leave OMS alone and to reassure the MUA that OMS were not placing any people on vessels who were non-MUA members, or that, in other words, OMS was complying with the OMS employment practice.
92 Del Rosso, who had been copied in with Quirk's email of that day to Cain, also sent an email on 25 February 2009 to Cain, Quirk and Bray (Subject: "Non MUA memberships") and stated:
Again I can vouch for this we know what the score is, but when Marten and I are both out of the office all day the girls follow the protocols as best they can when we are not around.
93 He said that he had sent this, in effect, to support what Quirk had said in his email earlier that day.
94 I find that these emails from Quirk and Del Rosso were a reaction to what had occurred with the Loves that day and why it was that Ms Wright had sent them to the MUA's offices. I infer this from the content of the two emails, taken together with their evidence as to why these emails were sent, as well as the fact that it was shortly after Cain's phone call to Ms Wright complaining about her sending the Loves to the MUA offices. These emails also establish that Cain knew, upon his receipt of them, that the Loves had been offered, albeit conditionally, employment on vessels as stewards. They also establish that Cain knew that, as they did not have MUA membership, OMS would not employ the Loves. I infer that, as the MUA was monitoring the people employed by OMS, that Cain also knew as a fact that OMS did not employ the Loves and that in relation to them the closed shop was operating successfully.
95 After leaving the MUA's offices, the Loves spoke to Ms Wright about what had happened when they went to the MUA office. Ms Wright confirmed that Cain had called her when they were at the MUA offices. She told the Loves that Cain was quite angry that she had offered them employment when there were beached MUA members waiting for work. Mr Love apologised to Ms Wright for the way in which Cain had spoken to her. Ms Wright replied in words to the effect, "Oh that's the way it is all the time".
96 The Loves each successfully completed the HUET/BOSIET training course between 26 to 28 February 2009.
97 Mr Love confirmed this in an email dated 1 March 2009 to Ms Wright. He said:
hi Tami. all went well with the huet course, we are now qualified. We went to the union after your email and registered but they told us to hang fire. I can't believe the union has so much to say, it must be very frustrating for you, i thought these things went out years ago. hope you had a good w/e. will wait for your call cheers the Loves.
(Transcribed without amendment)
The expression "[t]hese things" was, I infer, from the overall text, a reference by Mr Love to a closed shop arrangement: no union membership - no job.
98 In early March 2009, Mrs Love called the MUA on a number of occasions to try and find out how many beached members there were and how long it might be until they could become MUA members and then obtain employment with OMS. About that time she also called Ms Wright on a number of occasions to try and find out when she thought they would be able to secure employment on a vessel. Mrs Love followed this up a few days later in an email to Ms Wright requesting an update on the progress of their application for employment with OMS.
99 However, on 6 March 2009, Ms Wright emailed the Loves informing them that OMS was unable to place them in employment, as current MUA members had priority placement on onboard vessels for which OMS supplied labour. In the email Ms Wright stated:
I'm not sure what is happening at the moment in regards to the union, as we still have union members on the beach and we have to use this crew first. As soon as there is a gap I will get on to it and get both of you in. I'm really sorry that I got you all excited and then I couldn't place you. I promise you I am working on it.
As I can't accurately tell you when I could get you a spot, I would agree that you should find a casual position so that it can ease your minds as to getting some money in the bank, again I'm really sorry but I promise you're at the front of my mind and I will find you something.
100 Mrs Love replied the same day by email stating:
Dear Tami, How wonderful are you! Thanks so much for all your help and for keeping us in mind, very much appreciated. It's not your fault there are beached union members, and we know you are working on a position for us. ...
101 Quirk emailed Cain on 17 March 2009 (Subject: Shortage of OMS Crane operators) requesting membership approval in accordance with the OMS employment practice:
We currently have 4 non MUA crane ops that ... we would like to have considered at least for Temporary MUA memberships so we can ease the current shortage until we can find more existing MUA crew.
102 Cain replied by email to Quirk the same day advising "We need to meet in the morning to discuss". I infer that the discussion proposed for the next morning was for the MUA, by Cain, to decide whether, in light of the OMS employment practice and the inter-related MUA membership practice, the MUA would grant temporary MUA membership to four crane operators to enable OMS to employ them.
103 On 23 March 2009, Mrs Love sent an email to Ms Wright which stated:
Hi Tammi, hope your week-end was great! Phoned the MUA last week, and they seemed to think it wouldn't be long before we can become members.
Have the 2 Vessels gone offshore yet?
Look forward to hearing from you.
104 This hope of MUA membership never crystallised either at any time in 2009 or at all. The MUA, self-evidently, knew this to be the case. I again infer that the MUA, through its monitoring of OMS personnel, knew that the Loves were never employed by OMS and that they knew this to be as a result of the closed shop for reasons I have already stated.
105 During March and April 2009, the Loves started filling out forms for Centrelink payments as they were finding it difficult to obtain alternative employment. They had spent a lot of their own money on training to try and secure work with OMS and were in very difficult financial circumstances.
106 Mrs Love, in late May, completed her Certificate III course in Aged Care through Centrelink.
107 Ms Wright emailed the Loves on 22 June 2009 and stated:
I just wanted to update you and let you know that as soon as we start to pick up and the Union start to look for new members I will let you know.
108 Bray sent a further email to Del Rosso and Quirk and copied in Cain and Tracey on 10 September 2009 stating:
Ian,
No one has contacted Tony Phillips and he is still waiting for a job.
If he doesn't here anything by tomorrow I will require a list of leave balances from the company to see how much leave every IR you have employed has.
I am sick to death of having to ask where this is at and even more sick to fucken death of the false promises coming from you and Marten.
I am not asking any more, jobs are going to start stopping as of tomorrow if you don't confirm he has a job.
(Transcribed without amendment)
This email is but an example of the intimidating industrial threats directed by MUA officials at OMS.
109 Ms Wright sent an email to the Loves on 4 December 2009 which stated:
I haven't forgotten you! I have had a look at the union list and there are 20 stewards on there but you never know over Christmas, we are always hunting!
110 Mr Love, in mid March 2010, took the unusual step of writing to the then Prime Minister Rudd complaining about what had happened to him and his wife in relation to OMS and the MUA. His complaint was referred to the FWO which commenced an investigation.
111 OMS, through its CEO, John Kempe, on 29 March 2012, sent a letter of apology to the Loves for the loss and inconvenience experienced by them as a result of the actions of OMS when they sought employment with OMS, and paid the Loves $4,400.00 in reimbursement for their out-of-pocket expenses.