"Industrially-motivated"
66 Section 36 provides that "industrially-motivated" means motivated by one of more of the following purposes or by purposes that include one or more of the following purposes:
(a) supporting or advancing claims against an employer in respect of the employment of employees of that employer;
(b) supporting or advancing claims by an employer in respect of the employment of employees of that employer;
(c) advancing industrial objectives of an industrial association;
(d) disrupting the performance of work.
The employer referred to in paragraphs (a) and (b) need not be the employer whose employees do the work to which the action relates.
67 The applicant says that in this case, the building industrial action was "industrially-motivated" in that it was motivated by one or more of the following purposes:
(1) supporting or advancing claims relating to occupational health and safety against John Holland in respect of the employment of employees of John Holland; and/or
(2) disrupting the performance of work.
68 The statement of claim by [19(b)] pleases that the conduct in [(b)] was motivated by a purpose that included one or more of the following:
(a) the desire of the first and third respondents to support or advance claims against the applicant in respect of the applicant's employees;
(b) to advance their own industrial objectives; and/or
(c) to disrupt the performance of work.
69 As to the applicant's claim, as put in submissions, that the conduct of the 51 employees was industrially-motivated in that it was motivated by the purpose of supporting or advancing claims relating to occupational health and safety against John Holland in respect of the employment of employees of John Holland, the respondents submit that this is not merely a refinement of the pleading in [19(b)] particular (a) of the statement of claim as I suggested it was in the no case ruling at [72], but it is completely different. The respondents contend what was pleaded concerns the desire of the first and third respondents to advance their own industrial objectives against John Holland and that can never have been the motivating purpose of the 51 employees without evidence as to what their purpose actually was. In my view, the substance of what is pleaded is as put by the applicant - the concerns of the employees - based on what Mr Smart and the CFMEU had to say at the meeting - to advance those claims.
70 There is a question, however, whether the reference in particular (b) to "their own industrial objectives" is meant to be read conjunctively with (a) which refers to the first and third respondents or, having regard to the prefatory words in [19] - "the conduct referred to in [9(b)] above" means the 51 employees, who are referred to in that subparagraph. I think it is fair to take the more generous reading of the language used and to assume that it refers to the conduct and so the industrial objectives of the employees. Just what industrial objectives are identified is not clear and the applicant does not press this purpose.
71 The respondents say there is no evidence to support the finding that the 51 employees were motivated by the purpose of disrupting work as particularised in (c).
72 As to (a), the respondents say there is no evidence at trial that there was any claim made by the 51 employees of John Holland in the nature of the demand of something as due or an assertion of a right or alleged right, either during the meeting or elsewhere. Rather, the evidence establishes there was a meeting which was robust and noisy where topics discussed included the tower crane collapse, John Holland's poor safety record, the death of Wayne Moore in Newman on a John Holland project, the investigation being ongoing, the CFMEU's request for documents and difficulties getting documents out of Bechtel and John Holland.
73 The respondents say there is no evidence about what the workers in attendance were claiming against or demanding from John Holland when they called out "Let's walk off". Further, the meeting was attended by persons other than John Holland employees.
74 The respondents point to the evidence of Mr Brown, called by the applicant, who said that men on the back of the utility spoke about "safety and stuff" and some people in the crowd were saying "Walk out and general things" but he could not really remember anything else.
75 Mr Brown also gave evidence that he could not recall exactly what was said or what was occurring at the time. His recollection was not good.
76 The respondents say there is no evidence from which it can be inferred that the 51 employees' conduct in not attending for rostered work following the meeting and vote was motivated by any claim in the sense of a demand or something due or an assertion of a right made either at the meeting or after the meeting.
77 The respondents say that expressing in colourful language or otherwise a concern or discontent about site safety or a dissatisfaction with John Holland's safety record, or beliefs that getting information out of bosses is hard does not constitute a "claim" to be pressed under the BCII Act. They are nothing more than complaints.
78 In these circumstances the respondents submit it is not established that the 51 employees attended the off-site meeting and there is no fact from which it can be inferred that they had a claim to be supported or advanced against John Holland for occupational health and safety, nor that they attended the meeting and "voted" and if they did attend that they were motivated by an alleged purpose.
79 The applicant's case is that by reason of things said by Mr Smart and Mr Pallot on behalf of the CFMEU at the meeting, going to questions of the safety record of John Holland, that any subsequent building industrial action taken by the 51 employees can, by inference, be said to have been motivated by the purpose of supporting or advancing a claim against John Holland in relation to occupational health and safety.
80 The applicant relies on the evidence of Mr Brown, in the first instance, who the applicant called, including that he gave evidence (transcript 124 and 125) to the effect that the men on the back of the utility talked about the crane incident and said that the barricading around the tower crane was "not good enough".
81 The applicant says Mr Smart admitted telling the crowd that he had concerns about the barricading around the crane and whether it was far enough away from the crane (transcript 99). When asked why he had said this when he had earlier agreed that it was wrong to speculate about things until the results of the investigation were known, Mr Smart replied that he had "no idea" (transcript 127-128)
82 The applicant says that when asked in cross-examination if Mr Smart had said that barricading around the crane was poor or bad or not sufficient, Mr Hayes, another witness called by the respondents denied this was so (transcript 196).
83 Mr Pallot, on the other hand, agreed the subject of inadequate barricading was raised and discussed at the meeting (transcript 243).
84 The applicant says that Mr Brown also gave evidence that the men on the back of the utility told the crowd that someone had been in the toilet block, either at the time of, or shortly before, the crane collapsed (transcript 126).
85 Mr Smart agreed he told the crowd that the toilet block had been hit by the falling boom, and he also agreed it was "possible" he had told the crowd that someone was inside the toilet block shortly before or at the time it was hit by the crane (transcript 132 and 135).
86 The applicant says that relevantly Mr Smart also agreed he was the source of information contained in the CFMEU bulletin dated 16 January 2010, wherein it was stated:
Some personnel in the vicinity of the crane had to run from the incident zone, including persons in the change room facility moments earlier… (transcript 132).
87 The applicant says that despite agreeing that he was the source of the information on which that bulletin was based, Mr Smart said he had not checked any of the facts, despite thinking someone may have been killed or nearly killed, and that he "wouldn't have a clue" who the person was who was alleged to have run from the toilet block moments before it was hit (transcript 134).
88 The applicant submits that the Court should accept that Mr Smart provided that information after he became aware on 14 January 2010 it was not true, and further that Mr Smart said similar words to the crowd at the meeting knowing there was a rumour about and that it was untrue.
89 The applicant says when asked in cross-examination if Mr Smart had said that the crane hit a toilet block, Mr Hayes also denied this (transcript 196). When asked if Mr Smart had said that someone was inside the toilet block at the time, Mr Hayes denied this too (transcript 196).
90 Mr Pallot on the other hand, the applicant observes, said that he and Mr Smart were approached by a worker before the meeting started who wanted to know whether it was true that workers were accessing the toilet block shortly before it was hit by the crane. Mr Pallot agreed that Mr Smart did not denounce the rumours as untrue but justified this position on the basis that neither he nor Mr Smart had any information at that time about the truth or otherwise of the rumour (transcript 239).
91 The applicant says that Mr Pallot's evidence was that during the meeting someone from the crowd asked about the person who had been inside the toilet block shortly before it was hit (transcript 244). Mr Pallot agreed that at no time did Mr Smart speak up and say the rumour was untrue (transcript 245). Mr Pallot defended this position by saying that neither he nor Mr Smart knew at that time whether or not the rumour was true (transcript 245). Mr Pallot was clearly unaware then of Mr Smart's conversation with Mr Carrington on the site on 14 January 2010, when the evidence shows they discussed the question of someone being in the toilet block and Mr Smart was led to understand by Mr Carrington that this was the case and they had made a joke about it.
92 The applicant says that Mr Pallot's evidence clearly establishes that the rumour that someone was inside the toilet block shortly before or at the time the accident was discussed at the meeting, if not raised directly by Mr Smart, Mr Pallot's evidence also establishes that Mr Smart did not say (as he knew to be the fact) that the rumour was untrue.
93 The applicant also points to Mr Pallot's evidence that Mr Smart told the crowd that the tower crane had fallen onto the nearby liquor burner and that the consequences of this could have been catastrophic (transcript 242 and 243).
94 The applicant says that Mr Brown said that people in the crowd yelled out "Walk out", in response to which the men on the back of the utility told the crowd that if they did walk out there might be penalties involved (transcript 127, 129 and 130). The applicant says that Mr Pallot that he said words to this effect.
95 The applicant says that Mr Brown's evidence was that one or more of the men on the back of the utility said to the crowd in a "wink, wink, nod" sort of way (transcript 131), words to the effect of, "We can't tell you to walk out" and "We can't tell you to go on strike", which were spoken in a mocking tone of voice with a heavy emphasis on the word "tell", which Mr Brown said he took to be an exhortation by the speaker for the crowd to go on strike (transcript 130-132).
96 Mr Brown also gave evidence that the men on the back of the utility told the crowd that John Holland had a poor safety record (transcript 132).
97 The applicant says that Mr Smart agreed that he told the crowd that John Holland had a "bad safety record" (transcript 109), that John Holland had killed a worker at another workplace (transcript 109 and 111), that another worker named Wayne Moore had died on a John Holland site when he fell through grid mesh up at Newman (transcript 109 and 110) and that Wayne Moore's death was an example of John Holland's poor safety record (transcript 110).
98 The applicant says that Mr Smart accepted that his words were capable of being construed by the crowd as an accusation that John Holland had killed Wayne Moore (transcript 111). Later in his evidence, Mr Smart admitted telling the crowd that John Holland had killed Wayne Moore (transcript 122-123 and 125).
99 The applicant says that Mr Smart also said words to the effect that John Holland had killed other workers around Australia and that the tower crane accident was another example of John Holland's poor safety record (transcript 109 and 122).
100 The applicant says that reluctantly after much evasion Mr Smart finally admitted that he had said to the crowd words to the effect that the tower crane accident could have been another fatality (transcript 122).
101 The applicants says Mr Smart had no answer as to why his statement in the proceeding did not refer to these matters and when it was put to him that their absence was positively misleading, Mr Smart replied, "you can assume that" (transcript 124).
102 The applicant says Mr Smart agreed the crowd became even more heated and upset after he said the words referred to above. However, he denied deliberately stirring up the crowd saying that he was "just saying what the facts were" (transcript 125).
103 The applicant says Mr Hayes admitted that it would be reasonable to expect the crowd to become upset and angry if one were to accuse John Holland of having a poor safety record and of killing people. However, he denied that that is what Troy Smart said or did (transcript 190, 192 and 193).
104 The applicant says Mr Pallot similarly denied that Mr Smart had accused John Holland of having a poor safety record or that Mr Smart said words to the effect that the tower crane accident was another example of John Holland's poor safety record (transcript 249), or that Mr Smart said that the accident could have been a fatality (transcript 249), or that Mr Smart accused John Holland of killing people around Australia (transcript 250).
105 The applicants submit that the evidence of Mr Hayes and Mr Pallot on this point is deliberately untruthful.
106 The applicant says Mr Smart agreed that he knew in advance of the meeting that there was the potential for a strike, which is why Mr Pallot came along (transcript 130).
107 Mr Pallot was similarly well aware of the potential for a strike (transcript 226, 227 and 223).
108 The applicant says that Mr Brown said the men on the back of the utility told the crowd that getting information out of John Holland was hard, and that John Holland was described by the men on the ute as a "bunch of cunts" for this reason (transcript 134).
109 Mr Smart agreed he told the crowd that it was hard getting information out of John Holland, and that John Holland was drip-feeding information (transcript 136).
110 When asked in cross-examination if Mr Smart had said that it was hard getting information out of John Holland, Mr Hayes (transcript 197) and Mr Pallot (transcript 249) both denied this. Again, the applicant submits that the evidence of Mr Hayes and Mr Pallot in this regard is not truthful.
111 Mr Brown, the applicant points out, said in his evidence that the men on the back of the truck used a lot of "cuss words", and, on more than one occasion called John Holland and Bechtel a "bunch of cunts" (transcript 134-135). Mr Brown says that the expression was used by one of the men to describe, amongst other things, how hard it was to get information out of John Holland and Bechtel. According to Mr Brown the crowd became even more upset after hearing the officials use the language (transcript 171), he said the crowd also used swear words to yell out insults about John Holland (transcript 156).
112 The applicant says that when asked if he had used the expression "bunch of cunts" to the crowd, Mr Smart said the expression actually used by him was "fucking bunch of cunts" (transcript 109).
113 The applicant points to Mr Smart's evidence when he said he formed the view from the swear words that were coming from the crowd that members of the crowd were upset and when asked if his own swearing indicated that he was upset, and that he had spoken angrily and loudly, he denied these allegations (transcript 131). Mr Smart said he always addressed the crowd in a normal tone of voice, even when calling John Holland what he did. The applicant submits that this evidence is simply not credible.
114 The applicant says that Mr Hayes, on the other hand, said rather curiously that "there was no swearing from the back of the Ute" (transcript 190 and 192), despite the fact he was standing close to Mr Smart the entire time. Mr Hayes agreed that if Mr Smart had said those words, he would have heard them (transcript 192). Mr Hayes also agreed it would not have been a responsible thing to say (transcript 204). The applicant submits the Court should find that Mr Hayes is not a truthful witness.
115 The applicant points out that Mr Pallot also denied that Mr Smart called John Holland a "fucking bunch of cunts" (transcript 250). The applicant submits the Court should find that Mr Pallot is not a truthful witness.
116 The applicant points to Mr Brown's evidence that, at the end of the meeting, one of the men on the back of the ute asked the crowd to take a vote on whether they wished to take strike action (transcript 135) in this regard, Mr Brown said relevantly:
I mean the people in - with everyone there and I believe a vote was put forward by someone on the back of the ute to walk out, yay or nay, and they aye - and the ayes had it. They had asked all those in favour to say 'aye' and you have a large bloke - and you had a large group of people say 'aye' and all those say 'no' and there's no word - there was no sound and they said, 'The ayes have it,' and that was basically at the end of the meeting.
117 Mr Brown believed that someone on the back of a truck called for the vote. When Mr Brown was asked what people were voting for, he said "walkout".
118 Mr Brown said that after the vote there was no comment and it basically ended after that. He just walked off and went towards the gates. He believed people were leaving and there were some people walking towards the gate with him. He believed about a dozen or so people walked towards the gate.
119 Mr Brown said he heard (rather than saw) the person who called for the vote (transcript 146). He thought he was standing close to the ute and believed it belonged to one of the men on the ute (transcript 140). Mr Brown said (transcript 135):
I mean the people in - with everyone there and I believe a vote was put forward by someone on the back of the ute to walk out, yay or nay, and the yay - and the ayes had it.
120 The applicant says Mr Smart, Mr Pallot and Mr Hayes all gave different versions of how the meeting ended, none of which were consistent with the other, and none of which, the applicant submits should be either believed or preferred to the evidence of Mr Brown.
121 Mr Smart asserted that someone from the crowd proposed strike action by saying words to the effect of "Lets fuck off for the day and come back Monday". Despite similar words having been yelled out for the duration of the meeting, and despite the general noise and melee of the crowd, and despite it being difficult for someone at the back of the crowd to hear what someone in the front of the crowd was saying, the applicant says that Mr Smart says that on this occasion the words of one individual in the crowd had the effect of causing the 350 strong crowd to disperse, and a sizeable group of employees with no prompting from officials to take strike action (transcript 143).
122 The applicant says that Mr Pallot on the other hand said that someone in the crowd yelled out "I'm putting up a motion, we're out til Monday, all those in favour", in response to which a number of people in the crowd yelled out "we're out of here" and "let's fuck off". Mr Pallot said there was no seconder and no vote taken. Instead, the crowd just "suddenly dispersed."
123 The applicant says Mr Hayes gave yet another version of how the meeting ended. According to him, no one from the crowd called for strike action, and no one from the ute suggested strike action; rather, the crowd just dispersed on its own, and people decided of their own accord to leave the site and strike. In particular, Mr Hayes denied that anyone from the crowd said words to the effect of "Let's fuck off for the day and come back on Monday" and was adamant that if such words had been spoken he would have heard them.
124 The applicant says that none of the versions of events of Mr Hayes, Mr Smart or Mr Pallot can credibly stand together. Their inherent likelihood, the absence of critical matters from each of their statements, and the other untruths and inconsistencies in their evidence all mean that the Court should prefer the evidence of Mr Brown on this point.
125 The respondents accept that Mr Smart and Mr Pallot organised, attended and led (in the sense of addressing the workers), the off-site meeting but say that the fact that they arranged and attended the meeting needs to be seen in context.
126 The respondents say that Mr Smart's unchallenged evidence was that the workers were concerned about safety and he wanted the CFMEU to have a meeting to report back to them about the crane collapse. Mr Pallot's unchallenged evidence was that he requested Mr Croft from the Chamber of Commerce who was in charge of IR on the site to approve a paid on site meeting to deal with workers concerns about a lack of information, but it was refused and it was Bechtel's poor management of the situation that resulted in a meeting before work had started.
127 The respondents say the conduct of the CFMEU is to be seen in its entirety, but most importantly with reference to the position it adopted at the off-site meeting when workers were calling out "Let's walk off" and suggesting a strike throughout the course of the meeting.
128 The respondents say that Mr Pallot's unchallenged evidence was that from the time of the initial address by Mr Baker, a vocal minority of workers in the crowd were angry and calling out for a strike and they continued through Mr Smart's address.
129 The respondents say that regardless of what Mr Smart did or did not say, whether he used offensive language, or whether his statements might have drawn angry sentiment from a vocal minority, by the time he finished speaking, there had been repeated calls for strike action by some of the workers from before he even started speaking. Indeed, Mr Brown described the crowd as angry from the start.
130 Plus, in response to the calls from the vocal minority to go on strike Mr Pallot then took over and addressed the workers. He made it clear that the workers should go back to work. In other words, no matter that the workers were contemplating in terms of strike action, the final messages given to them by the Union officials, Mr Pallot and Mr Hayes, were to return to work, not to strike and if they did strike the ABCC would become involved and penalties might be imposed.
131 The respondents say it was the unchallenged evidence of Mr Smart (exhibit 14 [81]), Mr Pallot (exhibit 20 [49]-[50], transcript 217 and 232) and Mr Hayes (exhibit 19 [53]-[57] and [59]) that Mr Pallot and Mr Hayes in addressing the workers last said in direct response to calls from the floor for a strike words to the effect that:
they should go back to work;
they should follow the dispute resolution procedures;
they should not to go on strike;
if they went on strike the ABCC would be involved and there would be penalties;
the Unions would not support them if they went on strike or pay their fines.
132 The respondents say it was never put to Mr Smart, Mr Pallot or Mr Hayes that any of the above statements by Mr Pallot and Mr Hayes were either not made to the workers or were not genuinely made and their evidence must be accepted.
133 The respondents also point out that Mr Brown confirmed that during the off-site meeting, each of the union officials told the workers to go back to work, not to strike and that there would be penalties if they did not.
134 The respondents say the only findings open on the evidence are that:
the above statements were made;
they were genuinely made;
they were made for the express purpose of attempting to dissuade the workers from withdrawing their labour in the sense of taking positive steps to prevent it;
the above statements demonstrate that the Mr Sim and Mr Pallot were not involved in any decision by any of the workers to strike, let alone the conduct of the 51 employees in not attending for rostered work that morning following the off-site meeting.
135 The respondents say that if the applicant's case is limited to the way it is pleaded, there is no allegation of any act or omission of Mr Smart and Mr Pallot in leading the off-site meeting apart from the alleged vote, but if the applicant is permitted to move outside its pleaded case, the expression "We can't tell you to strike" is suggested to be an indirect exhortation to strike.
136 As to this allegation, which Mr Brown considered was said in a "nod nod, wink wink" suggestive way, to aid, abet, procure or incite a strike, the only way the third and fourth respondents can be found liable as accessories is if the evidence establishes, directly or by inference, that either of them made the statement in this way.
137 The respondents say the statement of Mr Brown firstly raises an identity issue and that it is not clear who exactly made the statement according to Mr Brown - a CFMEU official or someone else.
138 The respondents say that without pleading silent acquiescence by the third and fourth respondents with specific threats or exhortations made by one of the other union officials, there is no basis for determining liability against the third and fourth respondents.
139 The respondents say that Mr Brown knew Mr Smart but did not identify Mr Smart as the maker of this statement so the only reasonable inference is it was not Mr Smart. He did not identify the man who made this statement as being the person he observed with Mr Smart, as fitting the description of the man he identified, or that such person was wearing a CFMEU shirt or badge.
140 The respondents point out that no other witness heard such a statement being made, but no evidence was led from Mr Baker or Mr O'Reilly.
141 The respondents say that the second issue is whether these words were even spoken. Only Mr Brown gave evidence of them. He could not recall the exact words or the context in which they were allegedly said. It was Mr Brown's "perception" that these words meant a "nod nod wink wink" exhortation to strike and how he interpreted what was said, and it is ambiguous at best in light of the unchallenged evidence of the other advice given to the workers. The respondents contend that when considered in light of the whole of the evidence, including Mr Brown's agreement that more than one of the men on the ute told the workers to go back to work and not to take strike action or there would be penalties involved, this lone statement (if made) is equivocal and cannot be elevated to a procurement or incitement by the respondents to the 51 employees to strike, especially since there is no evidence the 51 were present or heard this exhortation
142 As to the evidence of Mr Brown that he believed that someone on the back of the ute put forward a vote to walk out, the respondents say an identity issue again arises. On the basis of Mr Brown's evidence it is not possible to determine which of the officials did so.
143 There was no evidence from either Mr Baker or the fifth respondent, both of whom were present at the Off-Site Meeting. On the evidence, Mr Baker was on back of the ute and Mr O'Reilly was standing next to the back of the ute on the ground.
144 The respondents note that Mr Carrington gave evidence that the fifth respondent got on the back of the ute and addressed the meeting in an animated fashion (exhibit 8, [48]-[56]). His evidence was inconsistent with that of Mr Smart, Mr Pallot and Mr Hayes on this point but he was not challenged on it.
145 The respondents say that Mr Brown's evidence on the issue of the vote when first found in the transcript (transcript 135) referring to the vote coming from someone on the back of the ute turned out to be nothing more than a belief based on an assumption. He could not recall what words were used or what was happening immediately before they were spoken (transcript 136). He did not know which person proposed the vote (transcript 140) but believed it came from the back of the ute and he heard the words rather than saw any speaker (transcript 146) and they came from the direction of the ute (transcript 146).
146 The respondents say Mr Brown agreed he could have assumed that because he heard the words come from the direction of the ute that it was said by someone on the back of the ute (transcript 146). He agreed there was noise around him and workers calling out "Walk Off". The respondents say Mr Brown eventually conceded "I guess I just can't you know, remember that part of it I suppose" (transcript 146).
147 The respondents say that given it was only his belief based on an assumption and he could not really remember that part of it, Mr Pallot's evidence ought to be accepted that he heard someone from the floor of the meeting suggest going out on strike and someone calling out "All those in favour". Mr Pallot is clear there was no raised mass of voices saying "Aye" or "Yay" in response.
148 The respondents point out that Mr Carrington in cross-examination agreed that he could hear a general noise coming from the crowd, but at no stage heard voices in the crowd raised loudly in unison just before dispersal.
149 The respondents say the evidence that people in the crowd moved towards the gates immediately the meeting was over is inconsistent with a unanimous vote for an immediate strike.
150 The respondents say this crucial allegation is unpleaded and liability attracting penalty consequences should not hinge on ambiguous testimony that does not establish how the Court could possibly attribute accessorial let alone vicarious liability.
151 Generally as to credibility the respondents say that Mr Brown was vague, ambiguous and unable to recall important details in giving his evidence, despite allegedly standing three metres from the ute and giving a statement only a few months after the event. He could not recall details.
152 As noted above, the respondents say the evidence of Mr Shaw and Mr Gwilliam is limited.
153 In relation to Mr Carrington, the respondents submit he was an unreliable witness and when pressed on the accuracy of records of his employer could not explain the inconsistencies in them and became evasive and argumentative.
154 The respondents say that Mr Carrington's evidence about the records of the applicant is inadmissible. His conclusion that the 51 Employees did not attend work is a belief based upon the records prepared by others. It cannot be the basis for the drawing of any reasonable inference.
155 By contrast the respondents say Mr Smart should be accepted as a witness of the truth because he lacked all artifice, he was prepared to accept that he may have and probably was the author of the expression "fucking bunch of cunts" and made no apologies for telling the crowd that John Holland had a poor safety record because he claimed that they did as a matter of fact, having fatalities, including Wayne Moore, on several sites across the country. It was not put to him that he was wrong about that record.
156 The respondents say there will always be some inconsistencies between the recollections of different witnesses to the same event and Mr Smart made proper concessions and did not seek to hide any part of the role he played in the meeting.
157 The respondents say that Mr Pallot should also be accepted as a witness of truth. His lack of recollection of everything that Mr Smart said is easily explained by his own evidence, by the background noise and he was not concentrating on everything that was said as he was preparing for his own contribution.
158 The respondents say that Mr Hayes should be accepted as a witness of truth because he was the only truly independent witness, not being a party to the proceedings and not aligned.
159 Again the respondents submit that any inconsistencies in his evidence are not unexpected. He spoke last on the utility. He reinforced the message that people should not go on strike and would not be supported by their unions.
160 About the attacks on what Mr Smart said on various topics at the meeting when he should have known better, the respondents note that Mr Smart gave evidence that before the meeting he had had concerns about the barricading and whether it was far enough away from the crane, not that he told that to the meeting.
161 The respondents say that there is no basis for finding that he complained the barricading was "not good enough" or was poor, based on Mr Brown's evidence, given that Mr Brown could not identify who said such a thing.
162 In any event, if Mr Smart did say something to that effect, it was part of a reasonably robust meeting of workers, some of whom were calling out for a strike, it was not a comment which incited or procured the strike.
163 As to the question whether or not someone was inside the toilet block at the time of the collapse of the crane, the respondents say again that Mr Brown did not identify Mr Smart as referring to the rumour.
164 Instead, the respondents say that Mr Smart did not recall telling the meeting about the rumour. His evidence was that it was possible he did so, and he said this when responding to a question which commenced with the words "it's possible you said …", which reduces the probative value of the answer.
165 As to what was stated in the CFMEU bulletin, Mr Smart said he gave that to the union on 13 January. That is before the meeting with Mr Carrington on 14 January.
166 The respondents, in any event, say that if this comment was made by Mr Smart it was at most a reference to a rumour and neither alone nor in conjunction with other words could have incited or procured the strike.
167 As to the liquor burner issue, the respondents say the transcript references supplied by the applicant clearly establish that Mr Pallot said he recalled Mr Smart and possibly Mr Baker mentioning the liquor burner but he repeatedly said he did not recall Mr Smart telling the crowd that the tower crane had fallen onto the liquor burner.
168 Mr Pallot's actual evidence was that he understood that workers were concerned that if the crane had fallen on the liquor burner there could have been a major catastrophe.
169 The respondents say that once again the applicant is wrong in its summary of Mr Brown's evidence by reference to the transcript references supplied. Mr Brown said of one of the men; "He was advising them that there 'would' be penalties involved if they walked out and believed he advised them that they would have to get back to work".
170 The respondents say that Mr Pallot denied that he said to the crowd "if you do decide to strike, there may be a prosecution and penalties" or that he said had a connotation of just giving out information (transcript 255).
171 The respondents point out that Mr Pallot was not the only one to speak of penalties for strike action and Mr Hayes did also.
172 The respondents say as to John Holland's poor safety record, it was never put to Mr Smart that John Holland did not in fact have a poor safety record, as noted above.
173 The respondents say that Mr Smart denied his affidavit was misleading for not including all the propositions put to him about his statement. He did not say "you can assume that" at transcript 124, but when he did say it, it was in answer to a suggestion that he clearly intended to convey was a matter for the questioner.
174 Mr Smart denied stirring up the crowd. Mr Brown mentioned the crowd was agitated throughout.
175 The respondents say the evidence of Mr Hayes and Mr Pallot is based upon what they heard in a noisy meeting. The likelihood of hearing everything said is reduced.
176 The respondents say that the knowledge of potential for a strike was responded to by the respondents taking steps to discourage such action. That is positive conduct distancing them from aiding, abetting, counselling or procuring or being knowingly concerned in or a party to the conduct of 51 employees who decided to strike, even though there is no evidence as to how those employees came to make such a decision, if they did.
177 The respondents say whether or not it was hard getting information out of John Holland is another comment in a reasonably robust meeting that cannot be established on the evidence to have anything to do with the conduct of the 51 employees.
178 As to Mr Smart's evidence concerning the "the fucking bunch of cunts" comments, the respondents say that at transcript 109 what he said was that he "could have" said words to that effect and did not disagree using swear words.
179 There was no evidence that he raised his voice to the crowd from Mr Brown or anyone else. He is entitled to be believed that he used a normal tone when talking about John Holland.
180 Mr Hayes and Mr Pallot not recalling Mr Smart saying such words is consistent with Mr Smart saying he could have said such words (not that he did say such words) and Mr Hayes and Mr Pallot not listening to the whole of Troy's address.
181 The respondents note that the applicant submits that the Court has already found certain facts as reasonably established by the evidence in the no case judgment. No findings of fact however have been found to be reasonably established by the evidence, only that there was some evidence on each of the elements of the statutory cause of action which taken at its highest might prove the applicant's case.
182 The respondents accept that the following are matters that are open to be found as facts on the evidence:
Employees of the applicant were rostered to work on 15 January 2010;
These employees were mostly rostered to start a dayshift at 7 am;
These employees were to attend a pre-start meeting at that time;
A meeting was held in the Redside carpark between about 6.40 am and 7 am on 15 January 2010 which was attended by a large number of people including employees of the applicant (one of whom was Mr Brown);
The third and fourth respondents organised the meeting, and led it in the sense that they stood on the tray of a utility and took turns to speak to the crowd.
183 The respondents, however, argue that the following facts are not established on the evidence, for the reasons submitted above regarding Mr Carrington's evidence:
A number of John Holland's employees who were expected to sign in at the pre-start meeting on 15 January 2010 failed to do so;
A number of John Holland's employees who did sign in at the pre-start meeting that day left that day before 9 am, before their scheduled roster had concluded;
Some of the employees listed in annexure "A" were amongst the employees who did not present for their rostered shift that day;
Some others listed in annexure "A" were amongst those employees who attended the 7 am pre-start meeting but left the site between 7 am and 9 am that day;
Not only were the persons who signed the pre-start shift themselves expecting to work that day - or they would not have signed on - but, from the evidence of Mr Carrington, that the other 50 persons making up the 51 persons in annexure "A" were employees of the applicant who were expected at work that day under their contractual duties. The fact that those other persons were variously mentioned in one or other of the timesheets, the salary slips (and less so the gate records) enables that reasonable inference to be drawn.
184 The question is whether the pleaded conduct of the relevant employees by not attending for some or all of their rostered shifts on 15 January 2010 was industrially-motivated. In this regard, the applicant's pleading is in [19(b)] of the statement of claim, which relevantly pleads as follows:
19. The conduct referred to in paragraph [9(b)] above was:
…
(b) 'industrially motivated' as that term is defined in s36(1) of the BCII Act;
Particulars
The Building Industrial Action was motivated by a purpose that included one or more of the following:
(a) the desire of the First and Third Respondents to support or advance claims against the Applicant in respect of the Applicant's employees;
(b) to advance their own industrial objectives; and/or
(c) to disrupt the performance of work.
185 In my view there is no evidence to support a finding in terms of particular (b) or (c). In relation to (c) I consider, as I said in ABCC v CFMEU at [121], that it is not enough to show disruption to work following building industrial action, rather, it must be shown on the evidence such disruption was a purpose of that action I do not consider there is any evidence of such a purpose.
186 The principal issue then is whether in terms of particular (a), the applicant has established that the 51 employees were motivated, in their conduct, by a purpose that included supporting or advancing claims relating to occupational health and safety against John Holland in respect of the employment of employees of John Holland. As I have found, this is a reasonable articulation of the pleaded motivation in (a).
187 The case for the applicant is that if the Court takes account of what the CFMEU officials said at the meeting, and what other persons standing on the back of the utility from other unions also said at the meeting without the CFMEU officials disagreeing with or contradicting or dissenting from it, what was said by the union officials on the back of the truck of the meeting was all by way of encouraging the assembled employees to strike because of the safety concerns that the recent collapse of the tower crane had raised.
188 Leaving aside for the moment whether the substance of the meeting sufficiently raised that as an issue and the conduct of the union officials may be considered sufficient to have provoked, using a neutral and general expression at this point, the conduct complained of, there is a primary question whether the conduct of the 51 employees complained of can be reasonably linked to what happened at the meeting.
189 Each proceeding asserting that building industrial action was taken for a specified purpose depends on its own facts. In ABCC v CFMEU, for example, it was very clear that the employees who had attended a meeting at which a vote had been taken upon the exhortation of the union official, had been discussing and were concerned about a very particular safety issue. The Court had no difficulty in inferring that the strike that followed the vote was building industrial action by the employees who were motivated by the purpose of advancing the safety claim discussed at the meeting.
190 In this case, however, the first point to be made is that it is entirely unclear whether the 51 employees named in annexure "A" were at the meeting. I accept the submissions of the CFMEU parties in that regard. There is no reason to conclude, and I am not prepared to infer on the evidence, that any of the 51 employees mentioned in annexure "A" were in attendance at the meeting.
191 Furthermore, I am not prepared to infer that what was said or done by the union officials at the meeting provides any clear motivation for the action complained of.
192 In my view, in the result, the most important of the witnesses, who gave the clearest evidence about what happened at the meeting on 15 January, was Mr Smart. I will return to his evidence.
193 Mr Pallot also gave clear evidence concerning what happened at the meeting and I also will have regard to his evidence below.
194 Mr Hayes' evidence was of limited assistance to the Court. Mr Hayes did not recall, when they were put to him in cross-examination, a lot of things that appear to have occurred. A good example is that he did not recall anyone swearing at the meeting, and in particular using the "cuss words" as Mr Brown described them. If the Court only had the benefit of Mr Hayes' evidence in this proceeding it would be left with the impression that all of the participants in the meeting, especially the union officials standing on the back of the utility were extremely mild mannered and "watching their p's and q's". It is not necessary for me to say whether or not Mr Hayes was untruthful about particular things done or said, of which he claimed no recall. It is possible that having regard to the events that day, with much noise at the meeting and he being one of the speakers, some of the things done and said escaped him. It would be a little surprising though. In the end, the evidence of Mr Hayes is not critical to the issue I must determine.
195 The evidence of Mr Pallot is much more helpful to the Court. Mr Pallot gave his evidence in a direct fashion. He is a long term and leading official of the CFMEU in Western Australia. He exhibited a detailed and sophisticated understanding of the sorts of industrial issues that underpinned the particular incidents that led to this proceeding. Mr Pallot was not an organiser, on the ground, like Mr Smart was, but he was appropriately engaged as a senior official to attend the meeting on 15 January 2010. He plainly had been brought up to speed by Mr Smart about what was involved with the crane collapse. However, he did not have a detailed understanding of everything that had been happening.
196 The officials from the CFMEU and the AMWU who spoke, standing on the back of the utility at the meeting, had a discussion it appears briefly before the meeting commenced and generally agreed who should speak to the meeting and in what order. When Mr Pallot spoke he was last or second last, after Mr Baker and Mr Smart. The purpose of Mr Hayes and Mr Pallot speaking was to particularly emphasise where the AMWU and CFMEU stood in relation to any proposal for industrial action.
197 I have no hesitation in finding that Mr Pallot was at pains, as he said, to let the persons attending the meeting understand that the CFMEU would not be supporting industrial action and would not be paying any fines that might result if there were.
198 There is no doubt that given the tower crane incident that there was some expectation, when the report back meeting was called on 15 January 2010 and persons assembled at it, that there were some who would press for industrial action. Nonetheless I accept that Mr Pallot and indeed Mr Hayes encouraged the men to go back to work, to follow a dispute resolution procedure, not to go on strike and to advise the men that if they did go on strike the ABCC would be involved and there would be penalties and the Union would not support them if they went on strike, nor would it pay their fines. I am certainly not satisfied on the balance of probabilities that the applicant has established otherwise.
199 Mr Pallot made the point during cross-examination, which I accept, that being the last or second last person to speak, when earlier speakers including Mr Smart were speaking, he was keeping an eye and an ear on the crowd and their response to the issues at hand, as well as thinking about his own presentation and in that sense was not entirely focussed on everything that was said and done at the meeting. Nonetheless I accept that he was not ignoring what was happening at the meeting but indeed was endeavouring to monitor and assess the degree of agitation in the meeting. I accept Mr Pallot's evidence that based on the assessment he made, he was at pains to make the Union's position, as I have outlined it, clear.
200 I also draw the clear inference, from all the evidence given, that the two senior union officials, Mr Pallot and Mr Hayes, were explicitly at the meeting to make sure that the workers assembled understood what the Union's official positions were, in the terms that Mr Pallot and Mr Hayes explained it in evidence. Accordingly, it was not the role of Mr Smart to deal with that strategic decision.
201 Thus, to the extent that Mr Brown recalls one of the officials using words to the effect that "We cannot tell you to strike" and the emphasis put on those words, which in his view, suggested the speaker was encouraging members of the respective unions to take strike action, then in my view the words were most likely to have been said, if said, by Mr Pallot or Mr Hayes.
202 Having regard to all of the evidence, including the cross-examination of Mr Pallot and Mr Hayes I do not consider the evidence supports a conclusion that either of them said words with the sort of emphasis that Mr Brown alleged.
203 I should say in respect of the evidence of Mr Brown, the only eyewitness to the meeting called by the applicant, that by the conclusion of cross-examination, he was far less certain of what had happened at the meeting, and what had been said and by whom, than he had been when he commenced.
204 Mr Brown made two affidavits which went into evidence (exhibits 2 and 3). In his first affidavit, made 26 July 2010, Mr Brown explained that he attended the meeting on 15 January, and arrived at the carpark at around 5.50 am. He noticed a fairly large group of employees from John Holland and other contractors onsite waiting for the meeting to commence. He also noticed four men standing near a ute at the front of the gathered crowd. He recognised one as Troy Smart, but did not know the others. The meeting started at approximately 6.15 am, when Mr Smart and another person climbed up onto the tray of the ute. He thought Mr Smart started the meeting by speaking about the crane incident. Following rulings on evidence counsel for the applicant was invited to lead Mr Brown in examination in chief as to what was then done or said. As to what one man, not Mr Smart said, he recalled the topic of the lack of barricading around the crane was discussed. He could not remember from which union this person was.
205 Mr Brown also recalled that this person spoke about the tower crane falling down and also about barricading and safety procedures. But he could not recall his exact words about the tower crane.
206 He also recalled this person speaking about rumours to do with the crane that had come down and that there might have been someone in the toilet block, or they had just left. The barricading was not sufficient, not good enough.
207 As to rumours about the toilet block, Mr Brown remembered this man saying that there might have been someone in the toilet block when the crane collapsed and thereafter.
208 However, he could not describe what the voice of this person was like when they said that.
209 Mr Brown indicated he was standing about three metres from the ute when all of this was happening.
210 He also remembers this person said that there will be an investigation ongoing.
211 Mr Brown said he did not think the man mentioned anything about the location of the barricading when that question was put to him directly.
212 Mr Brown said that in the crowd there were people speaking up and saying things like "walk out". The man had explained to the crowd that if they chose to walk out there would be penalties and the like.
213 At that point in his evidence in chief (as the transcript of evidence at 128 discloses) it appeared to the Court that the witness was struggling a little bit, his voice was a bit low but when he was asked if he was having some difficulty, he said he would be fine and that he was just stuttering a bit. And that was sometimes a problem. The proceeding paused while Mr Brown refreshed himself.
214 When Mr Brown's evidence continued, he was asked about how many people in the crowd were calling out "Walk out" to which he replied "there were just voices in the crowd". He agreed they were quite vocal.
215 He confirmed this was the same man who was then talking. He confirmed he had no idea who the man was, he could not remember his name. As I have indicated above it obviously was not Troy Smart because Mr Smart was the one person he did know and was able to recognise when the meeting had commenced.
216 Mr Brown said that this man advised the crowd that there would be penalties involved if they walked out and he believed he advised them that they would have to get back to work. He then said he believed that later on he had said "We can't tell you to walk out". He considered that these words were said in a "mocking tone". He remarked on the "rhythm in the voice" as one way of explaining this. The way he took it, the man was telling them that they could not tell the workers to go on strike but it was just like a "wink, wink, nod" sort of set up. Mr Brown added "that's how I perceived things". He believed the man was wanting them to walk out. Again he added, "that's how I felt about things".
217 I must say that I understood Mr Brown to be making the point that this was his particular perception of what was being stated.
218 Mr Brown recalls that each man stood up and basically said their piece about the safety and stuff like that and still there were people in the crowd saying "walk out". He added (transcript 132), "I mean, I really can't remember, I'm sorry".
219 Mr Brown simply could not identify which person said what.
220 He recalled "They were saying that John Holland's safety record was poor and getting information out of John Holland's and Bechtel, it was pretty hard".
221 When asked what was said about John Holland's safety record being poor, Mr Brown stated: "I'm sorry, all I can go on is the contacts of the - I mean its been so long ago now … I can't recall all of it, no".
222 Mr Brown said "they're using cuss words" used and added "I mean that's what unions do really".
223 When Mr Brown was asked whether Troy Smart used cuss words, his reply was "Not many. I can't remember on that one, no".
224 Mr Brown added that he really could not pick out each person, they took turns in speaking and "some blokes were swearing, okay".
225 He did however recall that one expression used was "bunch of cunts". He said this was directed towards management - John Holland and Bechtel, about how hard it was getting information out of them.
226 Again, Mr Brown indicated there were certain people in the crowd who were getting worked up.
227 Mr Brown was asked how the meeting ended. He said they had a vote towards the end. His evidence (transcript 135) was that:
I mean the people in - with everyone there and I believe a vote was put forward by someone on the back of the ute to walk out, yay or nay, and they yea - and the ayes had it. They had asked all those in favour to say 'aye' and you have a large bloke - and you had a large group of people say 'aye' and all those say 'no' and there's no word - there was no sound and they said, 'the ayes have it', and that was basically at the end of the meeting.
228 He understood the vote was to walk out, but he could not recall the exact words the man on the back of the ute spoke.
229 After the vote was taken, Mr Brown observed making a beeline towards the gate and believed people were leaving and "we had some people walking towards the gate, too, with me".
230 After an adjournment to deal with some observations of counsel for the AMWU, Mr Brown confirmed that he did not know which of the four men had said the words calling for the vote. He confirmed, however, his recollection and belief that it had come from the back of the ute.
231 He confirmed that when the meeting broke up, people were breaking away from the group and that he walked towards the gate with two apprentices on his team. He had noticed a few other people "walking towards the gate too. The rest? I didn't even look back".
232 In cross-examination by counsel for the CFMEU parties, Mr Brown confirmed that he believed that Troy Smart spoke first and introduced people. His was a familiar face at Worsley.
233 He agreed there were a lot of people around.
234 He could not recall whether all of the men on the back of the ute were speaking in loud voices. When asked whether Mr Smart had not spoken in an angry voice, he said he could not remember that, but that I understood the witness to say he could not remember Mr Smart speaking in an angry voice.
235 He could not recall whether Mr Smart used a lot of body language.
236 He could not recall Mr Smart using a lot of arm movements or arm gestures or hand gestures during the meeting.
237 He confirmed there were voices in the crowd calling "walk off". But added, "It has been so long ago, that there were - as best as I recall, there were voices in the crowd yelling from time to time".
238 However he did not know whose voices they were.
239 There were sections of the crowd off to his left and off to his right, but deep right he heard voices on the left hand side.
240 He confirmed that men on the back of the utility told the crowd that they should go back to work and should not go on strike. He also confirmed that they said there would be a problem with penalties but he could not identify who said this.
241 He confirmed that someone on the ute had made the vote proposal. However he did not recall seeing the person say the words only hearing them. When asked whether he had made an assumption that having heard the words come from the direction of the ute, they had come from someone who was standing on the ute, Mr Brown responded "Well, I suppose it could happen".
242 When asked about how much noise was coming from the crowd, Mr Brown said the whole crowd was not yelling but there was yelling here and yelling there.
243 It was then put to Mr Brown that he was not able to say that the person who spoke the words proposing the vote was someone standing on the back of the ute, that that was just his belief, to which he responded:
I'm sorry. I am just trying to remember.
Counsel then said to Mr Brown that if he could not remember "just say you can't remember", to which Mr Brown responded:
Yes I guess I just can't, you know, remember that part of it I suppose.
244 He also said that when the vote was taken, there was a "loud response".
245 During cross-examination by counsel for the AMWU parties, Mr Brown confirmed a variety of reactions from the crowd along the lines of the earlier evidence that he had given.
246 In re-examination, counsel for the applicants in many respects endeavoured to restore greater certainty to Mr Brown's recollection than he had exhibited during cross-examination. Notwithstanding this attempt Mr Brown indicated early on that "my mind has kind of gone".
247 He was pressed again about the tone of voice people used and said "I'm not sure… I mean, at times they were talking loud and at times they were talking normal. Okay. I'm not sure".
248 He confirmed he did not know who had spoken about the penalties.
249 Nor was he sure whether they were spoken by one person or more than one person.
250 However, he said they were spoken more than once.
251 He was asked when the question of the vote came up was he looking at each and every person when they spoke, or did he look away occasionally, to which he answered he "looked away occasionally; yes".
252 He was asked then whether he recognised the voice, to which he answered "yes".
253 When the matter was pressed Mr Brown answered (transcript 168):
At the time I'd say yes. Now, I really can't - in the context of the vote, at the end, 'the ayes, have it'.
He confirmed it was someone at the back of the ute.
254 As to the expression "pack of cunts", Mr Brown in re-examination said it was used by more than one person on the back of the truck. He said it was used a few times but he could not put a number on it.
255 In my view, as I noted above, Mr Brown's evidence got weaker the more he was asked to clarify his evidence. The burden of Mr Brown's evidence was that strong language was used by some union officials which suggested John Holland and perhaps Bechtel had less than perfect safety records. He could not say which of the men had said what. What is remarkable about Mr Brown's evidence, in my view, is that while he knew Mr Smart, could recognise him, and was familiar with him because he was on the Worsley site as a CFMEU organiser, Mr Brown was not able to attribute to Mr Smart directly any of the words that he had attributed to the collective group of union officials on the back of the truck.
256 Additionally, much of the focus of what Mr Brown had to say in evidence was on what some of the union officials said about going back to work and the way in which that was said. As stated above, in the light of the competing evidence between Mr Brown and Mr Pallot and Mr Hayes on this topic, I am not satisfied that the applicant has made out a case that either Mr Pallot or Mr Hayes spoke in the manner alleged by Mr Brown. Mr Brown's evidence on the topic of tone of voice when union officials said "I can't tell you go back to work" is, at best, in my view, highly impressionistic. Mr Brown was at pains, in effect, to say that this was his perception, what he believed, how he took the words. I am not prepared to find, on evidence of this quality, that this was in fact how Mr Pallot or Mr Hayes or Mr Smart actually spoke.
257 In the light of the evidence given by Mr Pallot and Mr Hayes as to the substance of what was said by them and the reason why they were at the meeting, I am not satisfied that the applicant, through Mr Brown's evidence, has established that Mr Pallot said to the crowd words to the effect that "I can't tell you to go back to work" in some ironic fashion which made it plain to all assembled that workers were, in fact, being invited to go on strike. If this sort of allegation were to be made out, the evidence would need to be much less vague or uncertain or circumscribed and qualified than Mr Brown's evidence was.
258 In most respects the best evidence as to what was said at the meeting by the union officials is that of Mr Smart himself. Mr Smart thought that he was the second speaker after Mr Baker, followed by the others including Mr Pallot and Mr Hayes. Mr Brown, as noted, thought Mr Smart was the first speaker. That may well be because Mr Smart was the only person speaking who Mr Brown knew.
259 In cross-examination Mr Smart relevantly said:
He spoke relatively briefly, possibly 3 to 4 minutes maximum.
That he told the meeting that he had been in and seen the crane had fallen, there was some debris outside the exclusion zones and about them hitting the toilet, but most of the people on the site had walked by and visualised it for themselves by then and did not need much clarifying.
He told the meeting that he'd inspected the crane on both the Wednesday and the Thursday.
From his inspection he did not know much, bar what the union had subpoenaed and asked for.
That he expected those documents to be coming. He knew the ICAM's were coming because of the discussion he had earlier that day with Mr Carrington.
That he spoke in a pretty level tone the whole time.
That he was at no great distance from the crowd, perhaps about 10 or 15 metres.
There was a high level of noise.
He read from the list of documents that he had been provided with from John Holland representatives and the purpose of doing so was to show that the union was taking the safety issues seriously.
That you want documents so you can learn from your mistakes.
That he did not recall saying that he wanted the documents because he thought or suspected that the barricading was inadequate.
He accepted by implication that in discussing his list of documents he said that it was pretty damn hard getting information out of John Holland and that was because they are covered by ComCare. He also accepted that implicitly.
He did not recall saying that the union did not have a right to get documents from John Holland because they are covered by different legislation, but seemed to accept it by implication.
Again, he did not recall saying "It's hard getting documents out of John Holland" but he did not seem to seriously quibble with the proposition that he did.
In answer to the question whether he also said that John Holland had a bad safety record and that the accident was an example of this, he said there were a lot of Collie people down there that knew the last person that had died on a John Holland site and that was mentioned in the crowd and he thinks that he confirmed that to people that did not know.
He agreed that he would have said that John Holland have a bad safety record.
He did not think he said that this was "an example" of their poor safety record.
He accepted that he did say that John Holland had killed a worker in another workplace. He qualified his answer by saying that, "I would have said that he felled for a grid mesh and that was very brief".
In answer to the question whether he described John Holland as a "bunch of cunts", he said "I would have said some swearing word …" when pressed that he had precisely said that "John Holland is a bunch of cunts", his answer was that "Could have been an f in front of it too". He then answered "Yes" when counsel asked "A fucking bunch of cunts?".
He did not say John Holland killed Wayne. He only said that he had died on a John Holland site. He denied that it was reasonable to suggest that what he was saying was that John Holland had a bad safety record because the man had died and John Holland were responsible for his death.
He said it would not be reasonable to draw that because it was "under inquest" so he did not know what the finding would be.
When he was pressed as to whether it would be reasonable for someone in the crowd hearing the different things he said to think he was saying to them that John Holland had killed Wayne, his answer was "If that's the way they wanted to take it, that's the way they would have took it".
He was then asked whether it would be reasonable to do so - and then whether people could have inferred that "your words meant that John Holland was responsible for killing Wayne?", he answered "possible".
That there were a few people calling out that, in response to the question put to him that people got upset when he mentioned those things.
That the crowd was a little more heated than before.
That there was a lot of yelling going on.
That he could not recall everything that was said in the crowd because he was trying to address the meeting.
That some of the evidence he had just given was not in his statement but then 18 months is some time ago and that if something was not in his statement, then he did not recall it at that time.
In answer to the question, "you're thinking it's not a good look that you got up there on the back of the truck and you said the crowd 'John Holland - you know, words to the effect, killed Wayne. They're a pack of, you know, fucking cunts'?". Mr Smart said "I don't recall saying it in that order".
When pressed whether it was a good thing to have said at the meeting, if he was wanting to keep the crowd under control, Mr Smart said "It's a horse per course, you know. Some construction workers are hardcore and some are different so it depends on how people - it's oranges and apples".
When challenged as to whether there was anything to "report back" on at the "report back meeting", Mr Smart indicated that the report back was to convey what information they had, where the investigation was going and what they had received from relevant authorities. He accepted he had limited information from the BHP's ICAM.
That the CFMEU wanted to see that all of the procedures were right when the investigation was carried out.
That there was a lot of different hearsay on site so it was better for everyone to hear what was being said at the same time.
That it was correct that Bechtel and John Holland had put notices on noticeboards and that they were replenished throughout the day as the new facts became known.
That there was the additional information he had received that morning at the security hut.
That yes, it was correct that he had limited information, when challenged as to what he was able to put forward and whether any single fact he had was in addition to what John Holland and BHP were telling its employees.
That the meeting was about getting everyone together and speaking to what was out on site already.
When asked whether he had said at the meeting that this could have been another fatality like Wayne, he said that he did not know if he said those exact words, but rather said that it is a level one grade safety issue. When pressed, he said no, he had not said it could have been a fatality like the one that killed Wayne. He agreed however that it would have been the crane to fall down it nearly killed someone, to the effect that it could have been worse; someone could have been killed.
When challenged about [76] of his affidavit, where he stated "I recall mentioning John Holland's safety record because several workers had died on other sites, but I do not now recall the exact words I used", Mr Smart was challenged that his was so lacking in detail as to be positively misleading, to which he replied "You can assume that" and when pressed further he said that John Holland in fact did not have a good safety record. That was the fact. It was not his view it was a fact.
When pressed whether he had mentioned Australia wide deaths, he said that he would have said their record around Australia has not been good of late.
He thought most John Holland workers knew of the record.
He denied that when he said these words he was going to provoke a reaction from the crowd.
He considered the crowd was vocal before that.
He denied that he knew what was going to happen after telling the crowd that John Holland killed Wayne when the crowd became more vocal and upset.
He denied that he said those things because he was wanting to get that reaction.
He denied that this was pivotal to his purpose in holding the report back meeting, that he wanted people to become upset.
He mentioned Wayne's death because the record of John Holland, most of the John Holland workers knew that already, he was just stating previous history.
In relation to swearing on construction sites, he agreed that he had "said similar words" to "fucking bunch of cunts", but did not recall exactly what he said, but it was similar to that.
That there were angry people, when asked whether there was an atmosphere of tension and a potential for workers to go on strike.
The reason that Mr Pallot came along was because of that fear that people would go on strike and to get them back to work and to dispute resolution.
That there were some people who had indicated that they were angry.
That he went through the safety issues with people.
That at the meeting there were people swearing.
That people were upset because the crane had crashed and there were some people who were upset.
That he did not accept that swearing caused people to become more upset, that is the language that gets used on the site.
That he was not upset himself, and used his normal tone, that he was not a loud speaker.
He did not recall saying to the crowd that there may have been someone inside the toilet block at the time it got hit by the crane, but when challenged as to whether there is a possibility he may have said those words, said it was possible.
That the reference to the crane and the toilet in the union bulletin was from information he supplied on the 13th, before he even met Mr Carrington on the 14th.
When asked why he did not take the step of ringing someone to ask if the rumour about someone being in the toilet block was true, he said that some of his days he receives three or four hundred phone calls and there are issues to be dealt with.
He did not say at the meeting "I don't think you or we are being told the full story", only that it was hard to get information from John Holland and Bechtel. He said they were still in the process of gathering information. He said that they had requested information to see if there were any procedures, things that had been missed out on.
He did not say to the meeting "You have a choice about what you would like to do" and he did not say "Whatever you decide, you have the full support of the CFMEU and AMWU".
He did not say "We can't tell you to strike".
He thought that he and Mr Baker were quite brief as speakers and that Mr Pallot and Mr Hayes probably spoke for 5 to 7 minutes each, maybe a bit longer, whereas he and Paul were probably 5 to 6 minutes.
He did not wave his arms about when he spoke.
That he did not, and nor did anyone else on the back of the ute, say "You have a choice about what you would like to do".
Nor did he say that "Whatever you decide you have the full support of the unions".
He did not say "If you do decide to strike we will support your decision".
That he did not hear the crowd yelling "Strike, strike, strike".
He said that what was said quite loud was "If you are going to do what you're going to do you need to go back into the gate".
He denied that he or others had said "All those in favour of walking off today say 'aye'".
He denied that there was a giant collective "aye", and denied that there was a call for "nays".
He confirmed that someone in the crowd towards 7 am had yelled out "Let's fuck off for the day and come back on Monday".
He confirmed that because it was getting close to 7 am, he and the others wanted to get the workers back through the gate so that they did not get docked for four hours pay for being late.
His recollection was that after someone said "Well, fuck that, I'm going home" the crowd roared to an extent and people started dispersing.
That when someone said "Let's fuck off" it was said in a very loud manner.
When it was put to Mr Smart it was simply not believable that close to 7 am a lone person in the crowd yelled out "Let's fuck off" and everyone not only heard that, but obeyed it, Mr Smart said that was what he had observed. There was a bloke that said that and a few people moving to cars, jumping in the cars, some milled about, some jumped in the cars, some came up and said "What's going on?" and that he and the others still encouraged them to go back into work, but obviously they had made their minds up to go for the day. He was still trying to get people who were milling around to go back into the site.
260 Mr Smart thought that he did not speak for all that long. My general impression is that it would have been about six minutes. However, the estimate of time is not that important because none of the evidence suggests that Mr Smart - or indeed any of the other speakers - spoke at great length. They were all conscious the workers needed to be at their shifts at 7 am.
261 It is relevant to note, as I have above in setting out the facts agreed by the parties and my findings in relation to the facts asserted by the applicant which the respondents did not accept, that Mr Smart had initially heard about the tower crane collapse on the day it happened, 13 January 2010, and had rushed back to the site from where he was then driving to meet with Mr Carrington, who did the same. They then agreed to meet the next day. Mr Smart and Mr Carrington then had a discussion on 14 January. I consider that at that meeting the rumours were raised and discussed about someone having been in the toilet block, either at the time of the tower crane collapse or just before it, and that a joke was shared. I also consider Mr Smart, from that point, did not himself hold strongly to the view that there had been someone whose life had been imperilled or who was lucky to have got away just before the crane collapsed. There were some questions about barricading but they were not particularly advanced at that point.
262 I also accept the evidence of Mr Smart, and indeed Mr Pallot, which in many ways is confirmed by all of the other witnesses including Mr Brown and Mr Shaw, that word of the tower crane collapse got around the Worsley workforce rather quickly. Mr Smart and Mr Pallot both say they received many calls. One might also accept from all of the evidence that the CFMEU parties took their responsibilities at the site very seriously. No doubt as union organiser Mr Smart, and Mr Pallot, as a senior CFMEU official, were anxious properly to reflect the concerns and interests of their members in the aftermath of the crane collapse. It must also be remembered that this tower crane was a very large piece of equipment, not the usual run of the mill crane. Its collapse was something of an event, and quite unexpected.
263 No doubt for many workers, and this is emphasised by the number of calls made to people like Mr Smart, the collapse caused general consternation. Questions were being asked about what this meant in terms of safety practices on site. Plainly from Mr Smart's evidence, John Holland's practices in the safety area had raised questions in the past, because a man had died on the worksite at another John Holland workplace in the North West of Western Australia. From the CFMEU perspective, any event like this was likely to raise serious concerns for their members.
264 The strategy of the CFMEU following the meetings of Mr Smart with Mr Carrington and others onsite on both 13 January and then 14 January 2010, was to arrange for a "report back" meeting onsite on the morning of 15 January 2010. In that regard I have no hesitation in accepting the evidence, which the applicant was at pains to exclude, that Mr Pallot, amongst others, tried to organise a meeting on site during work hours so that members of the unions could attend and would not be docked pay. In the end, however, the applicant's representative was not prepared to accede to that. Thus, the unions called the meeting in the carpark before the 7 am shift commenced.
265 At the meeting, the applicant's industrial relations representatives were all on hand. However, they did not get so close to the meeting that they were able to note who said what or who was in attendance. They were at the security hut nearby, observing from a distance.
266 I have little doubt, relying on Mr Smart's evidence, that he was seriously concerned about the tower crane incident and that, while he did not personally hold the view that anyone's life or safety appeared actually to have been put at risk, from what he was told by Mr Carrington, he nonetheless considered this type of accident on a workplace might well have endangered the life or safety of members of the union and was an occasion that called for close investigation to ensure that nothing like this would happen again.
267 In the event, I accept that Mr Smart said and did the things largely as he described them in his affidavit evidence and also in cross-examination. As I have noted he was probably the best witness on both sides when it came to describing what actually happened at the meeting. I do not accept, however, the applicant's portrayal of Mr Smart as a hothead who was provoking the crowd to strike. I accept Mr Smart was a person who had learnt to control the modulation of his voice, not to shout but to speak normally. There is nothing particularly in Mr Brown's evidence, I should add, that suggests that Mr Smart or any of the speakers were particularly agitated. In cross-examination Mr Brown that Mr Smart did not throw his arms around or the like.
268 Mr Smart was not prepared to deny the propositions, in cross-examination, and agreed that he had probably mentioned the man and his name who had died on the John Holland worksite in the NorthWest I find that he did. He also was prepared to accept, in my estimation, that he probably did use bad language - I would say most definitely that he did - including the "cuss words" already recited on enough occasions in the evidence above. I also accept, however, Mr Smart's evidence that at a meeting of workers on a worksite like this, in circumstances where a giant crane had collapsed, was bound to be robust. To some extent, as I understand the evidence of Mr Smart and Mr Pallot to be that there is even an expectation that such a meeting should be robust; that the speakers should show righteous indignation at what appears to have happened.
269 In circumstances where the tower crane had collapsed and employees might have been placed in considerable danger from the collapse, an organiser like Mr Smart, at a report back meeting, could be expected to reflect on the rumours which had been flying around the workplace. This is what he said he did. It is suggested on behalf of the applicant that for Mr Smart to have perpetuated a rumour, when he knew it not to be the case, was however an obvious act of provocation, likely to contribute to the workers striking. On the facts of this case, I do not agree. The facts clearly are that workers were concerned about the safety implications of the crane collapse. They were wanting information about what had happened. The meeting was called for the unions to report back. Mr Smart, I accept, was pointing out to the workers that it was hard to get information from John Holland and Bechtel. That is not just a rhetorical flourish. The fact is that the union had requested information from John Holland. Mr Smart - in response to things called from the crowd - acknowledged John Holland's poor safety record as he considered it to be, and mentioned the death of the worker in the NorthWest. He thereby projected to the members that he was trying to do his best to represent the interests of members in looking into this event.
270 In the end, I construe the conduct of Mr Smart at the meeting, including the things that he said, as representing to persons in attendance that the CFMEU and he and Mr Pallot were taking seriously the concerns that had been expressed him by workers, including that the collapse of the tower crane could have been catastrophic in terms of human life and safety, and that they were doing all in their power, in dealing with a difficult employer, to get appropriate information for the members.
271 I have no doubt that the CFMEU was wanting to show its members that they were not taking the concerns of the members lightly. The language used at the meeting, given the general concern of employees expressed at the meeting - which can be adjudged from the calls for "walk out" which plainly were coming loudly and frequently at the meeting - may well have been construed by some persons at the meeting to be a justification for walking out. However, I do not consider that they can be fairly construed as an invitation to do so used by Mr Smart, or Mr Pallot.
272 I also consider that on the evidence the respondents are correct to submit that there is in fact no evidence of a particular claim being formulated at the meeting in respect of which these employees may be taken to have supported or advanced. At best was a notion that John Holland had a poor safety record. In my view, no motion for a walk out based on this bad record was expressly or constructively put to the meeting.
273 As I have already found above, I do not accept that Mr Pallot (or Mr Smart or Mr Hayes) spoke to the persons at the meeting in a tone which effectively invited them to strike. In that regard I have commented on Mr Brown's evidence. While I consider Mr Brown honestly held the view he assessed in evidence, I do not take it to be evidence upon which I can reasonably found a view that this is the way the speaker or speakers actually spoke on the occasion in question.
274 I also do not accept that Mr Smart spoke in language that invited the workers to walk out.
275 Mr Smart reasonably accepted that when he made reference to the death of the man on the John Holland site in the NorthWest, that some persons might have been provoked by that. But his answer to that question was not that they were, but that reasonably someone might have been. That however was one comment amongst many in a robust report back meeting.
276 Plainly what did happen as a result of this meeting, in my estimation of the evidence, is that a number of anxious workers were not mollified by what they heard, were not satisfied when they were told by Mr Pallot and Mr Hayes that they should not strike and decided to withdraw their labour from the site that day.
277 The evidence concerning whether or not there was a vote taken is unclear. Mr Brown was adamant that a person called for a vote to walk out, there was a call for ayes and nays and then a large response supported the walk out.
278 I have to say that Mr Brown's evidence as to whether it was actually a person on the back of truck is quite uncertain. In cross-examination he could only say that he heard a voice from the direction of the back of the truck. In re-examination counsel tried to tighten that evidence up a little but, in the end, I consider the most that can be said is that Mr Brown heard a voice from the vicinity of the truck calling for a vote.
279 I accept though that there must have been some call for a walk out, whether or not it was "voted" on in some formal way as Mr Brown suggests. Mr Pallot accepts that someone in the crowd called for a walk out. I have the impression from all of the evidence that there was some general acclamation in the vicinity of whoever proposed that. I do not, however, accept that the union representatives on the back of the truck, including Mr Smart and Mr Pallot actually proposed any such vote. I accept Mr Pallot's evidence, in particular, that the language of "yay" and "nay" are not in his usual union vocabulary. In the circumstances I accept that there was some sort of call for a walk out, but that it was from within the crowd, and having regard to Mr Brown's evidence, most probably came from a section of the crowd packed in more closely to the back of the utility and not too far from where he was.
280 The reaction of the crowd, according to Mr Brown's evidence, is also interesting to note when weighing up just what sort of resolution, if any, was put and how it was responded to. He explained that he and his apprentices walked off to the gate, that is to say, off to work. He did not look back. The evidence generally supports the view that there was some general milling about with people going in different directions after the meeting. There is clear evidence that a number of cars left the carpark. This is evidence from which I may reasonably infer that some, but not all, persons who attended the meeting returned to their cars and left the cars without going through the gate into the site.
281 All in all, I am satisfied that a number of people who attended the meeting who were employees of John Holland decided to not report for work that day. I am also satisfied on the evidence that some may well have gone through the gate, reported and then left their shift before it ended later that day.
282 But I am not satisfied on the evidence, that generally speaking, anything said or done at the report back meeting by Mr Smart or Mr Pallot was the cause of them doing so. Rather, I consider that the general agitation of workers, the subject of much evidence, including from Mr Brown, was not reduced by what they heard from Mr Smart and Mr Pallot (or the other speakers) at the meeting.
283 In these circumstances, taking into account the quality of the evidence adduced by the applicant to prove that the CFMEU parties provoked a strike, and the fact there is no evidence of any of the 51 employees having been at the meeting, I am not satisfied that the applicant has shown that the 51 John Holland employees mentioned in annexure "A" whose conduct is pleaded in [9(b)] of the statement of claim were motivated in taking the building industrial action they took, by the purpose of supporting or advancing claims relating to occupational health and safety against John Holland in respect of the employment of employees of John Holland.