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[1999] FCA 899
Federal Court of Australia
1999-07-01
Original judgment source is linked above.
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 INDUSTRIAL LAW - freedom of association - conduct by employers - decision by employer to cease provision of stevedoring services and lease bulk handling facility - decision implemented by offer of voluntary redundancies; shifting of maintenance employees from irregular shiftwork to day work; and non-engagement of casual employees - whether decisions and implementation were proscribed conduct - whether presumption of prohibited reason rebutted - whether prohibited reason required to be "substantial and operative" - what constitutes the reasons of the employer. INDUSTRIAL LAW - minimum entitlements of employees - decision by Port Authority to cease providing stevedoring services - decision to lease bulk handling facility - requirement that lessee propose and confirm that its workforce would be engaged on contracts of employment or workplace agreements under the Federal or State legislation to which only the employer and employee are parties - whether requirement constituted application of duress to employer in connection with Federal workplace agreement or ancillary document. INDUSTRIAL LAW - offences - coercion of employers by commercial pressure - decision to licence bulk handling facility - requirement of lessee to enter into a workplace agreement - whether requirement constituted a refusal to deal with an employer. TORT - conspiracy - claim of conspiracy to achieve lawful objective by unlawful means - claim that employer combined with Minister of the Crown and former Minister to carry out common purpose which included conduct being the unlawful means - whether conduct in parallel or combination - whether common purpose involved unlawful means. CONSTITUTIONAL LAW (CTH) - States as employers - terms and conditions of employment at port authority - whether port authority a State agency - whether implied limitations on Commonwealth power to regulate applicable - whether employees within administrative service exception. EVIDENCE - discovery - civil proceedings - whether public interest and administration of justice outweighs public interest in maintaining confidentiality - whether relevance of Cabinet documents to the proceedings justifies disclosure.
WORDS AND PHRASES - "alteration of position to employee's prejudice"
Workplace Relations Act 1996 (Cth) s 170WG(1), 298K, 298L, 298U, 298V Evidence Act 1995 (Cth) s 149(2) Trade Practices Act 1974 (Cth), s 84 Workplace Agreements Act 1993 (WA) s 71 Geraldton Port Authority Act 1968 (WA) Ports (Functions) Act 1993 (WA) Public Sector Management Act 1994 (WA) Public Sector Management (Redeployment and Redundancy) Regulations 1994 Leontiades v FT Manfield Pty Ltd (1980) 43 FLR 193, cited Jones v Dunkel (1959) 101 CLR 298, discussed Payne v Parker [1976] 1 NSWLR 191, cited Briginshaw v Briginshaw (1938) 60 CLR 336, discussed and applied Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, cited Beach Petroleum NL v Johnson (1993) 43 FCR 1; (1993) 115 ALR 411, discussed Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, cited General Motors-Holden's Pty Ltd v Bowling (1976) 12 ALR 605, distinguished Kelly v CFMEU (No.3) (1995) 63 IR 119, distinguished Roberts -v- General Motors Holden Employees' Canteen Society Inc. (1976) 25 FLR 415, cited Linehan v North West Exports Pty Ltd (1981) 57 FLR 49, considered Childs v Metropolitan Transport Trust (1981) IAS Current Review 946, discussed Blair v Australian Motor Industries Ltd (1982) 61 FLR 283, cited Squires v Flight Stewards Assn of Australia (1982) IR 155, cited Kimpton v Minister for Education of Victoria (1996) 65 IR 317, discussed Health Services Union of Australia v Tasmania (1996) 73 IR 140, discussed Independent Education of Union of Australia v Canonical Administrators (1998) 157 ALR 531, discussed Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 77 FCR 456, discussed Grayndler v Cunich (1939) 62 CLR 573, cited Walplan Pty Ltd v Wallace (1985) 8 FCR 27, considered Sydney Harbour Trust Commissioners v Ryan (1911) 13 CLR 358, referred to Tesco Supermarkets Ltd v Nattrass [1972] AC 153, referred to Colonial Mutual Life Assurance Ltd v The Producers and Citizens Co‑operative Assurance Company of Australia (1931) 46 CLR 41, referred to New Zealand Guardian Trust Company Ltd v Brooks [1995] 1 WLR 96, referred to Verrault v A-D QUE [1977] 1 SCR 41, referred to IW v City of Perth (1997) 191 CLR 1, followed Wood v City of Melbourne (1979) 26 ALR 430 referred to Australian Builders Labourers Federated Union of Workers - Western Australian Branch -v- J-Corp Pty Ltd (1993) 114 ALR 551, cited Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367, applied Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, applied Sorrell v Smith [1925] AC 712, referred to Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40, applied Peter Schanka & Ors v Employment National (Administration) Pty Ltd (Moore J, Federal Court of Australia, 9 September 1998, unreported), considered Westpac v Cockerill (1998) 152 ALR 267, cited Australian Services Union v Electrix Pty Ltd [1999] FCA 211, referred to Pao On v Lau Yiu Long [1980] AC 614, considered Deemcope Pty Ltd v Cantown Pty Ltd (1995) 2 VR 44, cited Re Wakim; Ex parte McNally [1999] HCA 27, applied R and Attorney-General (Cth) v Associated Northern Collieries (1911) 14 CLR 387, referred to Williams v Hursey (1959) 103 CLR 30, discussed Coal Miners Industrial Union of Western Australia, Collie v True (1959) 33 ALJR 224, cited McKernan v Fraser (1931) 46 CLR 343, referred to Sorrell v Smith [1925] AC 700, referred to Cox v Journeaux (No 2) (1935) 52 CLR 712, discussed Latham v Singleton [1981] 2 NSWLR 843, discussed Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637, considered Lonrho PLC v Fayed [1992] 1 AC 448, discussed Goodchild Fuel Distributors Pty Ltd v Holman (1992) 59 SASR 454, referred to Womboin Pty Ltd v Reichelt (unreported, New South Wales Supreme Court, 25 August 1995), referred to Northern Territory v Mengel (1996) 185 CLR 307, considered Quinn v Leathem [1901] AC 495, cited Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135, referred to Coomera Resort Pty Ltd v Kolback Securities Ltd [1998] QSC 20 (unreported, Supreme Court of Queensland, McKenzie J, 20 February 1998), referred to Ahern v The Queen (1988) 165 CLR 87, applied Tripodi v The Queen (1961) 104 CLR 1, considered Victoria v Commonwealth (1996) 187 CLR 416, considered Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, referred to Australasian Meat Industry Employees' Union v R J Gilbertson (Queensland) Pty Ltd (Gray J, Federal Court of Australia, 8 December 1988 unreported), referred to
MARITIME UNION OF AUSTRALIA, PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN, STEVE PENNEY v GERALDTON PORT AUTHORITY, ERIC CHARLTON AND MURRAY CRIDDLE
WESTERN AUSTRALIA DISTRICT REGISTRY WAG 101 OF 1998
THE COURT ORDERS THAT: 1. Counsel be heard in relation to orders appropriate to provide relief to the second applicants in respect of the prejudicial alteration to their positions pursuant to s 298K of the Workplace Relations Act 1996 (Cth). 2. The application be otherwise dismissed. 3. The applicants' motion dated 15 January 1999 paragraph 2 so far as it relates to documents 4 and 5 be refused. 4. Costs reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
WESTERN AUSTRALIA DISTRICT REGISTRY WAG 101 OF 1998
REASONS FOR JUDGMENT
1.1 The claims 1 The applicants claim that the Geraldton Port Authority ("GPA') contravened s 298K of the Workplace Relations Act 1996 (Cth) ("the WR Act"); s 170WG(1) of the same Act; and s 71 of the Workplace Agreements Act 1993 (WA) ("the Agreements Act"). In respect of the alleged breach of s 298K of the WR Act, the applicants claim that the third and fourth respondents caused, contributed to and encouraged and/or influenced and continued to do so the contravention of that section. 2 The applicants also claim that the first, third and fourth respondents entered into an unlawful conspiracy, being a conspiracy constituted by a common purpose to achieve a lawful objective by unlawful means for the purpose of injuring the applicants. 3 The applicants seek remedies in the form of orders for penalties, damages and injunctive relief.
1.2 The parties 4 The first applicant ("the MUA") is a registered organisation of employees under the WR Act. 5 The second applicants are members of the MUA. 6 The GPA is a body corporate established by s 6 of the Geraldton Port Authority Act 1968 (WA) ("GPA Act"). As will appear, the GPA is constituted by five members. Those members were referred to in evidence and in these reasons sometimes as "the Board". 7 The claims against the former second respondent BE and SG Brown Nominees Pty Ltd trading as Geraldton Shipping Agencies ("GSA") were dismissed by consent. 8 The third respondent ("Mr Charlton") was between February 1993 and July 1998 the Minister for Transport ("the Minister") in the Government of the State of Western Australia ("the State Government"). 9 The fourth respondent ("Mr Criddle") was from on or about 28 July 1998 the Minister for Transport in the State Government, in succession to Mr Charlton.
1.3 Relevant conduct 10 The second applicants are employed by the GPA. They are employed in classifications to which the Western Australian Regional Ports Integrated Labour Force (Geraldton Port Authority) Award (1995) ("the Award") and the Geraldton Port Authority-Integrated Labour Force Agreement (1995) ("the Agreement") apply. From time to time the GPA hired some of its employees including the second applicants to stevedoring companies in connection with the provision by those companies of stevedoring services in the Geraldton Port ("the Integrated Port Labour Force" or "IPLF"). Labour was so supplied in the following order of allocation: the first employees to be allocated were permanent employees of GPA; they were followed by permanent employees working overtime; and then casual employees drawn from a casual pool of labour maintained by the GPA. 11 The relevant conduct is said to be constituted by decisions made on 3 July 1998. The relevant decisions were (1) to lease the bulk handling facility ("the BHF") at the Geraldton Port and (2) to cease to provide labour to stevedores operating in the Port, and to implement both decisions. 12 The decision of the Board to cease engagement in stevedoring work included provision for progressive exit from the business of providing labour for stevedoring operations, continuation of the business as normal with due allowance for the expectation of staff down sizing and provision for all staff were to be offered the opportunity to apply for voluntary redundancy. 13 The effect of the relevant decisions is that since 3 July 1998 thirteen employees have taken voluntary redundancy. The GPA's employees have been reduced from 41 to 27. The latter figures include the second applicants and the maintenance workers ("the MUA employees). No casual employees are now engaged.
1.4 Witnesses 14 The second applicants all testified. The applicants also called Mr Buck, the Western Australian Branch Secretary of the MUA since 1992, and Mr B E Brown, a director of GSA. 15 The GPA called its General Manager ("Mr Durant") and each of the five members comprising the GPA. A very substantial portion of the hearing time (29 days) was taken up with cross‑examination of these witnesses on behalf of the applicants. 16 Mr Charlton and Mr Criddle gave evidence. In addition Ms S Calder a senior officer in the Office of the Minister of Transport in the State of Western Australia was called for Mr Criddle's case.
At the meeting Mr Durant referred the members to the proposed organisational structure. It was resolved that approval be given in principle to progress the development of the plan for consideration at the next Board meeting. 119 9 June 1998 Mr Durant met with Mr Peter Winch-Buist and GPA member Mr Bruce Anderson. Also present at the meeting were Mr Ian Stockbridge and Mr Rob Williamson. In his notes of the meeting, Mr Durant recorded that someone said 'decision out of Board hands - more political. Bruce - not operating under Mr Charlton's directives. Taken on board government's policies. BHF neat little system. Another is the grain system.' 120 * 10 June 1998 Tony Clarke wrote a memorandum to Mr Durant. In that memorandum Mr Clarke said: "I have discussed previously with you my concern that the Board does not fully understand the path it is going down or the long term ramifications of the proposed - action it intends to take, in trying to meet the Minister's reform program. I have also stressed the need to ensure the Minister signs off on the Geraldton Port Authorities proposed course of action, which has primarily been developed to rid - the Port of MUA influence and costly penalty rates rather than for strict business or economical reasons." [It has been ruled this memorandum is not evidence of the truth of its contents]. 121 16 June 1998 Mr Tony Clarke wrote to Mr Durant enclosing a copy of a fax from Mr Steve Scott of SHR re employee relations strategies. 122 16 June 1998 Mr Tony Clarke prepared a document for Mr Durant and the GPA entitled "Discussion on Handling Announcement on 03 July 1998". 123 18 June 1998 Minister Charlton released a media statement. Mr Charlton said that the efficiency of Ports would be improved substantially through legislation being introduced into Parliament. He said that he wanted Ports to improve productivity, reduce costs and provide the best possible service to their customers. The new legislation, he said, would give Port Authorities the scope to 'grow their trade by allowing them to adopt innovative management and work practices and, if necessary call on greater involvement from the private sector in Port operations'. 124 22 June 1998 Deputy Chairman Burrows prepared a document for the BHF users meeting to be held that day. After explaining the decision by the Board 'to establish a full contractual and management service for operations at the Bulk Handling Facility' Mr Burrows said that the Minister for Transport was 'heavily supportive of the Port's endeavour in this regard'. Under the heading 'What Has Been Achieved', Mr Burrows described benefits of the new arrangements as including 'guaranteed continuity of service and direct employer/employee relationships through workplace agreements'. 125 29 June 1998 Mr Durant sent a fax to Ms Marie Mills, with copies to the Minister's office, Mr Finnucane and the Board members. The fax consists of twenty pages, including the cover page; two pages headed 'Preamble'; two pages headed 'the Line'; and two pages headed 'Factors in Exiting Stevedoring'. 126 2 July 1998 Mr Durant wrote to Board members. Mr Durant advised of discussions he had had with the preferred tenderer and noted that Mr Brown was under a mistaken impression that his employees had to be permanent, full-time. Mr Durant noted that Mr Brown was made aware that this was not a requirement as long as the employees were 'involved in a direct employer/employee relationship'. 127 2 July 1998 Fax was received by GPA from the MUA which cited the union's refusal to accept that the letter sent to Mr Tannock on 15 May 1998 was proper notice of change under the Award. 128 2 July 1998 Mr Treasure wrote to Board members re BHF contract. He wrote that at its most recent Board meeting, the Board resolved that GSA be awarded preferred tender status and that negotiations be commenced in relation to certain issues. On page three of the document, he reported on the negotiations in relation to (f) Registration of State workplace agreements and an acceptable Employee Relations Management Plan as follows: "Comments have been provided to GSA on possible enhancements to be considered for inclusion as part of the proposed State workplace agreements. The contractor has agreed to include these refinements as part of the final documentation. An amended Employee Relations Management Plan has also been submitted and approved for final implementation." 129 * 3 July 1998 Board meeting held. At the meeting, the GPA resolved to accept GSA's amended offer and enter into contractual relations with GSA in relation to the operation of the BHF. The GPA also resolved to adopt an updated version of its business plan and 'the progressive exit from the business of providing labour for stevedoring operations'. 130 3 July 1998 Mr Durant wrote to the Secretary of the MUA informing him of the decision to withdraw from the provision of stevedoring labour. 131 3 July 1998 Mr Durant sent a fax to persons who had attended a meeting at the Port Authority earlier that day. In the fax Mr Durant corrected a misinterpretation that may possibly have arisen as to whether workplace agreements would form part of the stevedoring licensing system. Mr Durant stated '(the Chairman's) answer may have been interpreted as indicating that this could be the case and his answer was immediately corrected by the Deputy Chairman. The licence will not require a condition of workplace agreements between the licensed stevedore and his employees'. 132 * 6 July 1998 Minister Charlton wrote to Minister Reith: 'Federal Redundancy Program … Stevedoring Employees'. Mr Charlton advised that the GPA had announced on Friday 3 July 1998 that they will be exiting the service of providing stevedoring labour. Companies wishing to perform stevedoring in Geraldton would need to source their own labour and to apply for a licence to provide stevedoring services. Mr Charlton noted that: "Conditional on obtaining a license will be the applicant's ability to demonstrate continuity of service. To achieve this, employment conditions such as direct employer/employee arrangements under contracts of employment will be highly regarded." 133 * 6 July 1998 "Information Memorandum For Applicants For Licences To Supply Stevedoring Services At The Port of Geraldton" prepared by GPA. The Information memorandum refers to continuity of service as being a 'fundamental requirement' in the selection criteria for applicants. 134 7 July 1998 Meeting between Mr Durant and Mr Winch-Buist. The notes made by Mr Durant record Mr Winch-Buist stating 'Level of overtime GPA is criminal'. 135 13 July 1998 Federal Minister Reith wrote to Mr Charlton concerning the latter's request for access to Federal redundancy money. 136 15 July 1998 Meeting between the representatives of the GPA, the MUA, the GPA's legal representative and a DOPLAR official. At the meeting the recent Board decision and the contents of the new certified agreement were discussed. 137 * 15 July 1998 B.E & S.G Brown Nominees Pty Ltd on behalf of GSA entered into a lease and operating agreement with the GPA for the operation of the BHF. The GPA resolved to execute the agreement, at its meeting on 16 July 1998. 138 * 17 July 1998 Mr Charlton wrote to Dr Peter Shergold, Secretary, Commonwealth Department of Workplace Relations requesting a meeting in Perth to discuss redundancies arising from restructuring of regional Ports including Geraldton. 139 27 July 1998 Mr Sandison prepared a document for the GPA entitled 'GPA Stevedoring Labour Hire Pool - Reasons for Exiting Background Paper'. 140 * 28 July 1998 Mr Charlton wrote to Mr Reith concerning redundancies and advised that 'the situation in Geraldton is now at a critical point, and the assistance of the Commonwealth government through the redundancy program is of vital importance to the achievement of efficiencies in stevedoring operations in Ports in WA'. 141 28 July 1998 Mr Criddle replaced Mr Charlton as the Western Australian Minister for Transport. 142 * 28 July 1998 Meeting held with potential applicants for stevedoring licences. The notes of the meeting record that in response to a question about continuity of service, Mr Sandison replied 'Workplace agreements are not the only tool'. John Durant stated 'A large number of MUA members in the State have signed workplace agreements. No third party is the key Government policy. You are trying to read between the lines.' 143 * 29 July 1998 Notice to employees was given. The notice referred to the assistance to be given to employees in seeking alternative employment. 144 28 July 1998 GSA submitted its 'Employee Relations Management Plan' to the GPA in July 1998. 145 * 3 August 1998 Mr Criddle wrote to Mr Reith introducing himself as the new Minister for Transport and noting that he was 'pleased to continue the excellent work in the Portfolio' of Mr Charlton. In the letter, Mr Criddle advised of the commencement of these legal proceedings against the GPA. Attached to the letter was a 'proposal for a Federal-State Government Agreement for access to the Redundancy Programme for WA regional Ports'. 146 * 3 August 1998 Mr Durant sent a fax to Mr Reece Waldock and Ms Stephanie Calder marked 'Urgent' and stating 'all on List are eligible for redundancy, but if only 13 go, we are a long, long way in front'. 147 5 August 1998 Fax from 'Stephanie to Tony' which attaches a nineteen page fax detailing the Western Australian Port Reform agenda. 148 10 August 1998 The Western Australian Cabinet endorsed the decision by its Standing Committee on Labour Relations to provide an enhanced stevedoring redundancy package at the GPA and to exempt those employees who accepted the package from the usual re‑employment restrictions. 149 10 August 1998 Mr Durant sent a facsimile circular to all potential stevedoring licensees stating that the GPA did not require the prospective licensees to enter into workplace agreements with their employees. The last paragraph of the facsimile states: "The question of workplace agreements was also touched on in the discussions of 28 July 1998. I reiterate the position of the GPA that the Authority does not require that licensees enter into workplace agreements (State or Federal)". 150 * 11 August 1998 Mr Criddle wrote to Mr Reith advising that 'the situation in Geraldton and Wyndham Ports remains critical' and that 'the Geraldton Port Authority, as a result of a hearing held today, now has an extremely limited window of opportunity to offer redundancies prior to August 21 1998'. 151 13 August 1998 The GPA was advised of the decision by Mr Patterson of DOPLAR. 152 13 August 1998 Mr Durant attended a meeting at which redundancies were discussed. 153 17 August 1998 Mr Durant prepared a draft reply for Mr Criddle to send to the Deputy Premier in response to a letter from Mr Madden of the United Farmers Co-operative Company Ltd. In the draft reply, Mr Durant wrote: "The Port Authority has resolved to licence Stevedoring companies in the Port for other reasons. The Authority has not had satisfactory agreements and indemnities in place with Stevedores and other third parties who hired Authority labour or who otherwise carried on their business on Port Authority lands." 154 28 August 1997 Mr Simon Whitehouse, Director of Maritime Policy, Department of Transport, wrote to Mr Durant. Mr Whitehouse was responding to a fax from Mr Durant about the future process of handling the leasing out of the BHF. He advised Mr Durant that guarantees of continuity of service would need to be 'an absolute criteria' for the purpose of any licence to operate the BHF and that 'this is an area I would be keen to assist you in if possible'. 155 26 August 1998 Mr Reith wrote to Mr Criddle advising that he was 'prepared to consider sympathetically the authorisation of financial assistance for enhanced redundancy packages' but he wanted first to be satisfied that 'the redundancies are lawful'. 156 27 August 1998 Board meeting held. Item 1 of the minutes notes that correspondence from the Minister reinforced the State Government's position for Port Reform and provided clear intent of the preferred structure for strategic Port management, that being the same model adopted by the GPA. 157 2 September 1998 Mr Ramage met with Mr Criddle to discuss issues concerning redundancies at Geraldton. Mr Durant prepared a list of topics for Mr Ramage to raise with Mr Criddle. 158 * 4 September 1998 Mr Criddle wrote to Mr Reith stating that 'the immediate offer of voluntary redundancy packages is crucial for the achievement of our waterfront reform objectives...'. 159 * 7 September 1998 Mr Durant wrote to Mr Winch-Buist enclosing a package of material containing information on the voluntary redundancy package. 160 9 September 1998 Mr Treasure of the GPA wrote to Mr Nichols, the Deputy Commissioner of Taxation. In the letter, Mr Treasure wrote that 'the exiting [by the GPA] from the business of providing [stevedoring] labour will result in the need to offer voluntary redundancy packages to those employees mostly affected by this decision'. 161 9 September 1998 Ms Calder wrote to Dr Shergold attaching a two page letter of legal advice prepared for the GPA by Freehill, Hollingdale & Page, solicitors. 162 16 September 1998 Mr Gillespie of the Federal Department of Workplace Relations wrote to Ms Calder. He said that the advice provided by the GPA did not resolve the Commonwealth's concerns. 163 * 21 September 1998 Mr Durant wrote to Ms Calder seeking the approval of the Minister of the GPA's decision to issue three stevedoring licences. Page two of the letter bears the stamp of approval by the Minister for Transport dated 23 September 1998. 164 * 24 September 1998 Board meeting held. The Board resolved to issue a stevedoring licence to CBH for twelve months, and to P&O Ports and WA Mercantile Services Pty Ltd for six months. 165 24 September 1998 Mr Durant wrote to the Secretary of the MUA informing him of the decision to issue three companies with licences to perform stevedoring services at the Port. 166 * 30 September 1998 Mr Criddle wrote to Mr Durant in response to the request for his approval in relation to the issuing of the three stevedoring licences. Mr Criddle advised that the GPA had his support to progress the matter. 167 6 October 1998 Mr Criddle wrote to Mr Reith enclosing the "Framework Agreement: Commonwealth and Western Australian Government For WA Regional Ports". 168 19 October 1998 the Western Australian Cabinet varied its decision of 10 August 1998 and 'allowed regional Ports to pay enhanced redundancies notwithstanding that the provision of Federal funding may be conditional on any legal proceedings as to the lawfulness of any redundancies being finalised'. 169 15 October to 25 October 1998 The GPA issued three non-exclusive licences to provide stevedoring services to P&O Ports, WA Mercantile Services and CBH. 170 27 November 1998 Board meeting held. The Board resolved a panel comprising of Mr Sandison, Mr Bill Gault and Mr Peter Sorenson meet with United Stevedores and Western Stevedores to finalise their applications. 171 4 December 1998 Board meeting held. The Board resolved that 'non exclusive licences be issued to both Western Stevedores and United Stevedores for execution'. 172 29 December 1998 Mr Durant wrote to Mr Winch-Buist advising that the GPA had made the decision to exit the business of stevedoring on 3 July 1998 effective 31 January 1999. The letter advised that employees who remained in the employ of the GPA after 31 January 1999 would be classified as day shift workers. 173 30 December 1998 The GPA resolved to issue two further stevedoring licences to United Stevedoring and Western Stevedores. 174 * 16 January 1999 Board meeting held. The GPA resolved that 'legal advice be sought and acted upon on a proposal from 1 February 1999, for Mr Winch-Buist, Mr Paul Arthur, Mr Clive Lauritsen, Mr Steve Penney and Mr Frank Praprotnik to be registered for redeployment ...'. 175 * 1 February 1999 the GPA implemented its decision of 3 July 1998 and ceased to provide its employees, with the exception of Messrs Winch-Buist, Arthur, Lauritsen, Penney and Praprotnik, to stevedores.
3.1 The GPA 176 Section 7 of the GPA Act provides that the GPA shall consist of five members appointed by the Governor, with one of such members appointed by him to be the chairman. The members of the GPA at the relevant date of 3 July 1998 were Messrs R Ramage (Chairman), M Burrows (Deputy Chairman), K E Altham, B Anderson and K Halbert. 177 Pursuant to s 23 of the GPA Act the GPA has exclusive control (subject to ministerial direction) of Geraldton Port as delineated by the GPA Act. It provides facilities and services pursuant to the Ports (Functions) Act 1993 (WA) ("the Functions Act"). 178 By s 18 of the GPA Act the Governor, on the nomination of the GPA, may appoint a General Manager. At the relevant time the General Manager was Mr Durant. 179 By subs 5(1) of the Functions Act the GPA is, subject to an exception inapplicable here, an agent of the Crown in right of the State. 180 Section 6 of the Functions Act provides: "6. (1) The Minister may give directions in writing to a Port authority with respect to the performance of its functions under this or another written law, either generally or in relation to a particular matter, and the Port authority must give effect to any such direction. (2) The text of any direction given under subsection (1) is to be included in the annual report submitted by the accountable authority of the Port authority under section 66 of the Financial Administration and Audit Act 1985." Section 4 of the Functions Act provides it prevails where it is in conflict or is inconsistent with the GPA Act except where the GPA Act expressly provides to the contrary. 181 Section 7 of the Functions Act provides: "7. (1) The Minister is entitled - (a) to have information in the possession of a Port authority; and (b) where the information is in or on a document, to have, and make and retain copies of, that document. (a) (2) For the purposes of subsection (1) the Minister may - (a) request a Port authority to furnish information to the Minister; (b) request a Port authority to give the Minister access to information; (c) for the purposes of paragraph (b) make use of the staff and facilities of a Port authority to obtain the information and furnish it to the Minister. (b) (3) A Port authority must comply with a request under subsection (2) and make its staff and facilities available to the Minister for the purposes of paragraph (c) of that subsection. (c) (4) In this section - (d) 'document' includes any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise; (e) 'information' means information specified, or of a description specified, by the Minister that relates to the functions of a Port authority." By subs 12(2) of the Functions Act a Port authority may provide such facilities and services as it considers are necessary for or in connection with the effective operation of its Port as a Port.
3.2 The WR Act 182 The WR Act provides that an award shall specify the period for which it is to continue in force: s 147. Subject to the power of the Commission to set aside or vary awards and to any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters: s 148(1). By s 89A the WR Act limits the range of matters that may regulated by an award by the introduction of the concept of "allowable award matters". There are exceptions to this limitation but they are presently irrelevant. By a combination of that section and Pt 2 of Sch 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) ("the WROLA Act") awards in force as at 30 June 1998 were required to be reviewed and varied so as to be limited in scope to the "allowable award matters". Such process is known as the "Award Simplification Process". 183 If an award had not been simplified before 1 July 1998, award provisions which deal with matters other than the 20 allowable matters ceased to have effect from 1 July 1998 (see Item 50 of Schedule 5 to the WROLA Act). Provisions of unsimplified awards which deal with allowable matters remain effective. 184 The WR Act provides for agreements in Part VIB. The Australian Industrial Relations Commission is authorised by this Part to certify an agreement about matters pertaining to the relationship between an employer and its employees made between an employer and its employees (s 170LJ) or an employer in a registered organisation such as a trade union: ss 170LK and 170LO. Prior to certifying such an agreement the Commission must, with certain presently irrelevant exceptions, be satisfied that the agreement passes the "no‑disadvantage test": s 170LT(2). Section 70XA(1) provides that an agreement passes the no‑disadvantage test "if it does not disadvantage employees in relation to their terms and conditions of employment". In applying the test the Commission must compare the terms of the agreement with a "relevant award": s 170XA(2). For present purposes the "relevant award" is the Award: s 170X. Subject to certain presently irrelevant exceptions, the WR Act provides that a certified agreement ceases to be in operation only when its nominal expiry date has passed and it is replaced by another agreement: s 170LX(2). Subject also to presently irrelevant exceptions, the WR Act provides that a certified agreement prevails over an award to the extent of any inconsistency with the award: s 170LY(1).
3.3 The Agreement 185 The Agreement was certified on by the Australian Industrial Relations Commission pursuant to an application under s 160MA of the Industrial Relations Act on 6 May 1996. The Agreement was also to come into force from the beginning of the first pay period commencing on or after 12 March 1996 and to remain in force for a period of two years. That provision is contained in the certification of Agreement. It is inconsistent with the provision in cl 6(1) of the Agreement which provides that it shall operate for a period of two years commencing from the beginning of the first pay period on or after the date of the certification pursuant to the Industrial Relations Act. It is not in dispute between the parties that the Agreement remained in force as at the date of the relevant decisions on 3 July 1998. 186 The effect of cls 3 and 5 of the Agreement is that it does not apply to work done by persons who are not employees of the GPA nor to employers other than it.
3.4 The Award 187 The Award is dated 21 May 1996. It was made pursuant to an application for a consent award under s 111(1)(b) of the Industrial Relations Act 1988 (Cth). By cl 7 of the Award it is provided the Award would come into operation from the beginning of the first pay period to commence on or after 28 March 1996 and continue in force for twenty‑four months. It is not disputed the Award was in force as at the date of the relevant decisions. 188 By cl 5 the Award applies in respect of employees engaged by the GPA on work done in or in connection with but not limited to the administration, construction, maintenance, stevedoring and Port operations of the GPA and the mooring and unmooring of vessels. By the same clause the Award is expressed to be binding on the GPA; employees of the GPA whether a member of the following organisations or not; and officers and members of the MUA and the Australian Maritime Officers Union. 189 By cl 6 the Award, in addition to superseding any other prior agreement, was expressed to: "(a) Regulate the conditions of employment relevant to GPA employees in the performance of all Port operations. (b) Provide a complete and final resolution of all matters relating to the operation of an integrated Port labour force. (c) …" The GPA admit that the second applicants are persons entitled to the benefit of the Award. I accept the submission for the GPA that the Award does not apply to work done by persons who are not employees of the GPA; that is, it does not apply to work done by persons who are employees of stevedores operating in the Port. In order to be a person having the benefit of an award, a person must be entitled to bring proceedings for breach of the award: Leontiades v FT Manfield Pty Ltd (1980) 43 FLR 193.
3.5 The alleged unlawfulness 190 The unlawfulness which is central to the pleading of unlawful conspiracy and relevant in any event to the alleged breaches of substantive law arises from the abovementioned statutory provisions, the requirements of which are addressed below.
4.1 Credit 191 For the applicants an extensive challenge to credibility is mounted in respect of Mr Durant, Mr Ramage and Mr Burrows and Mr Altham. It is said that they gave demonstrably false evidence on a variety of matters so as to render them unreliable and untrustworthy witnesses. This position is said to have been reached either by a sustained unwillingness to give frank and informative answers or by the frequency by which they gave false evidence or a combination of the two. Accordingly it is submitted they are not witnesses upon whom reliance should be placed unless their evidence is confirmed by some independent and satisfying means. As a consequence it is said that their untruthfulness may be a factor to be taken into account as strengthening one of competing inferences. 192 It is further submitted for the applicants that some of the false testimony can only be explained by way of consciousness of guilt. Where that is a proper inference the applicants rely upon it as further demonstrating the witnesses' true state of mind on the matter the subject of the untruthful testimony. 193 I do not consider any of these witnesses gave false evidence. However, in varying degrees, they were less than frank and informative in circumstances where they could be expected to have been fully informed. Mr Ramage's testimony was exceptionally guarded. Mr Durant, while cautious, was on occasion genuinely confused by the issues he was required to address. I do not make any general adverse findings of falsity but I approach the evidence of each of the witnesses referred to on a cautious basis with the considerations raised for the applicants in mind in weighing their evidence. 194 Then the attack for the applicants turns to Mr Charlton. It is said that his lengthy answers often had little to do with the question asked. That is the case but I do not consider it affected his credibility. As a former minister and politician it was apparent that Mr Charlton thought in terms of policy objectives and was prompted by questions to engage into an excursus into policy matters ranging beyond the particular question. I do not accept that he was thereby careful to ensure that he did not tell the truth.
4.2 Jones v Dunkel inferences 195 For the applicants it is contended the prima facie case made out by them was that the restructure undertaken by the GPA in the relevant decision of 3 July 1999 was to produce a reduction in cost to the users of the Port as a result of majority of the workforce no longer working under the Award and the Agreement and ensure a continuity of service through a reduction in the influence of the MUA, with consequent injury to the workforce and the MUA. It is submitted a number of witnesses were possessed of detailed knowledge relevant to those primary issues and might reasonably have been expected to be called by one or more of the respondents. 196 The persons concerned are Mr Tony Clarke, whom I have found in earlier reasons given in tis proceeding to be a consultant to the GPA; Ms Janelle Criddle, a member of the staff of Mr Charlton; Mr Tony Finnucane, adviser appointed by the State Government to assist regional Ports in waterfront reform and mentor to Mr Durant at various times; Mr Greg Trenberth, senior policy adviser to Mr Charlton and Mr Stuart Hicks, former Director-General of Transport and a consultant offered by the Department to advise regional Ports on implementation of the State Government's reform program. 197 The rule in Jones v Dunkel (1959) 101 CLR 298 applies where a party is "required to explain or contradict" something (at 321) and where evidence is given of facts "requiring an answer" (at 322). It applies where it would be natural for one party to produce the witness or the witness would be expected to be available to one party rather than the other; unless there are excusing circumstances: Payne v Parker [1976] 1 NSWLR 191 at 201‑2. Only in the case of Mr Clarke was there evidence of circumstances which may arguably have been excusing but the evidence arose in the cross-examination of Mr Durant and he was not re‑examined on the issue so that the evidence is inconclusive. 198 The applicants' contentions depend on the accuracy of the primary contention that their case raises a prima facie position. That is one to be reached by inferences. It is not open to the Court, as I see it, by application of the rule in Jones v Dunkel to more readily draw the overall inferences the applicants' case seeks to have drawn. Rather the rule should be applied to particular issues and matters. The issue should therefore arise on the occasion of the need to draw each inference. 199 I accept that no explanation has been given by the respondents why these witnesses were not called save that there was no issue they were required to address.
4.3 Standard of proof 200 For the respondents it is submitted that the standard of proof should be the Briginshaw standard. The classic statement of principle in this respect is to be found in the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, a case concerned with a petition for divorce on the ground of adultery : "..reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences…[E]xactness of proof is expected"((1938) 60 CLR 336 at 362-363 per Dixon J. 201 The High Court has, relatively recently, made it clear that Dixon J's approach remains authoritative. See Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ. I do not accept the submission for the applicants that what was there said by the majority in the High Court was to the effect that the high end of the civil scale of proof is generally reserved for civil cases in which a finding about dishonesty or fraudulent behaviour is required. Reference to the dicta of Dixon J in Briginshaw makes this apparent. 202 von Doussa J in Beach Petroleum NL v Johnson (1993) 115 ALR 411 at 435, applied the principles recognised by Dixon J in Briginshaw in a case alleging an unlawful conspiracy between several individuals and corporations when he said: "The allegations of the applicants include those of fraud and conspiracy. Notwithstanding that conspiracy is also a crime, the ordinary civil rule as to the sufficiency of proof applies. The Applicants must prove their case on the balance of probabilities. However, the strength of the evidence required may vary according to the gravity of the fact to be proved. Where a charge of fraudulent and dishonest conduct is made, the court will require a higher degree of probability than it would if it were considering an allegation such as negligence. The seriousness of the allegation must affect the answer to the question whether these issues have been proved to the reasonable satisfaction of the court: Briginshaw and NeatHoldings." Again this relies on "the seriousness of the allegation" to the determination of whether proof has occurred to the reasonable satisfaction of the Court. Nevertheless the conspiracy alleged in Beach Petroleum was a conspiracy to defraud (see at 430). 203 The allegations in this proceeding are that the GPA acted unlawfully in breaching the three statutory provisions previously referred to. It is further alleged that the GPA, Mr Charlton and Mr Criddle conspired to injure the applicants by unlawful means. All respondents submit that these allegations are so serious that the Briginshaw principle should apply. 204 In support of these submissions for Mr Criddle it is said that the seriousness of the allegations derives from the fact that he is a serving Minister of the Crown in relation to whom it is alleged he conspired to injure the applicants through the apparent device of promulgating lawful government policy involving the breach of State and Federal statutes. 205 The critical question is whether the nature of these allegations or the gravity of the consequences flowing from a particular finding are so serious that the Briginshaw principle should be invoked even in the absence of a pleading alleging fraudulent conduct. 206 In my opinion the allegations against the respondents are serious in character. This derives from the fact that the claim of conspiracy is made on the basis that in executing their public duties the respondents, without realising it, unlawfully harmed the applicants. Leaving aside the issue whether an intention to harm is a necessary element of the tort of unlawful conspiracy, the allegation is serious. It also has about it an inherent unlikelihood of occurrence in the absence of an intention to harm. Adverse findings against the respondents would raise an event of "grave moral delinquency": cf Briginshaw at 363. 207 However, there are other factors which I consider more significant. The applicants spent approximately twenty days cross-examining the witnesses of the respondents. The character of the cross-examination was directed to the meaning of and state of mind behind the documents. Questions were phrased with great attention to exactitude. Submissions concerning credibility of a number of the respondent's witnesses were based on a lengthy and detailed analysis of questions and responses. The whole trial was conducted by all parties with great attention to exactitude. 208 In all those circumstances I consider the claims of the applicants require resolution by a "careful weighing of testimony, close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion" : Briginshaw at 354 per Rich J. This, however, is still an application of the civil standard of proof on the balance of probabilities. 209 In any event I am bound by s 140(2) of the Evidence Act 1995 (Cth) to take into account the nature of the cause of action and defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.
4.4 State of mind 210 The evidentiary issues arising in relation to determining the state of mind of the GPA are considered below in relation to prohibited reasons.
4.5 Conspiracy and the Ahern principle 211 Evidentiary issues arising in relation to the claim of conspiracy are considered below in relation to that claim of conspiracy.
4.6 Cabinet documents 212 In reasons for judgment delivered on 3 March 1999 I held over the applicants' motion for further and better discovery of two Cabinet documents identified as documents 4 and 5 until submissions were heard in the course of trial on what were defined as "the Expressions". These included "direct employer/employee relationship" and "continuity of service". The purpose of that order was to allow the Court to hear what significance and meaning the applicants' case attached to those expressions. In that context the Court would then be able to judge whether exceptional or very exceptional circumstances existed for the production of those Cabinet documents. I will return to the motion at the conclusion of these reasons.
5.1 Pleadings 213 By par 28 of the second further amended statement of claim the applicants plead that the GPA's conduct referred to in pars 13 to 18 inclusive, constitutes a contravention of s 298K in that the GPA has (a) threatened to dismiss the employees (the second applicants) and other employees who are members of the MUA ("the MUA employees", sometimes in the evidence described as "the maintenance employees"); (b) threatened to injure or has injured them in their employment; (c) threatened to alter or has altered their position to their prejudice; or (d) refused to employ as casual employees, employees who were customarily employed as such and who are members of the MUA ("the MUA casual employees") - for the reason or for reasons that include the reason that they are entitled to the benefits of the Award and/or the Agreement. 214 Paragraph 29 of the statement of claim is identical to par 28 except that it pleads that the GPA has done or threatened to do the matters outlined in (a)-(d) "for the reason, or for reasons that include the reason that the employees are members of the MUA". 215 The elements of the contravention of s 298K as pleaded are: (1) that the GPA was an employer (the GPA's defence admits it was an employer) in relation to its former employees, and remains the employer of its current employees: pars 2(a)(2) and 5(a)), which (2) threatened to dismiss, threatened to injure or injured in employment, threatened to alter or altered the position of, or refused to employ, the identified employees; (3) for a prohibited reason. 216 Paragraphs 28 and 29 of the statement of claim identify two prohibited reasons which it is alleged were the reasons, or were included in the reasons, for which the GPA carried out the acts identified in pars 13 to 18 of the statement of claim. Those reasons are that the MUA employees and the MUA casual employees were: (1) members of the MUA; and (2) entitled to the benefits of the Award and the Agreement. 217 In par 30 of the statement of claim, it is alleged that the MUA employees have been injured in their employment with the GPA in five respects, in that they: (a) have been changed to day work; (b) have been denied irregular shift work; (c) have been denied overtime work; (d) have had their annual leave entitlements reduced to four weeks per annum; and (e) have had other leave entitlements changed adversely. 218 In par 31 of the statement of claim, it is alleged that by reason of the changes to the provision of stevedoring services operating from 1 February 1999, the MUA casual employees have not been employed to do stevedoring work by the GPA at the Geraldton Port. In par 33 it is alleged that these employees have suffered loss and damage as a result. By par 21B of its defence, the GPA admits that it has "not engaged casual employees for the purpose of providing their labour to stevedores operating in the Port". In par 34 of the statement of claim, it is alleged that Mr Charlton (until July 1998) and Mr Criddle thereafter have caused, contributed to, encouraged and/or influenced one or more contraventions of s 298K by the GPA. In the case of the Mr Criddle, it is alleged that he continues to do so.
(1) Statutory provisions 219 Section 298K so far as is relevant reads: "(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) …" It is to be read with s 298L which relevantly provides: "(1) Conduct referred to in subsection 298K(1) … is for a prohibited reason if it is carried out because the employee, … or other person concerned: (a) is … [a] member of an industrial association; or … … (h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or …" Section 298V provides, so far as is relevant,: "If: (a) (a)in an application under this Division relating to a person's … conduct, it is alleged that the conduct was, or is, being carried out for a particular reason …; and (b) (b)for the person … to carry out the conduct for that reason … would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason …, unless the person … proves otherwise." Section 298K falls in Pt XA of the Workplace Relations Act. Section 298A provides that as well as the objects set out in s 3 of the Workplace Relations Act, the Part has the following objects: "(a) to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and (b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations." That provision does not as the applicants submit in reply, show the object of the Part as "clearly to protect employees and independent contractors". It applies equally to employers.
(2) Onus of proof 220 Unlike its statutory predecessors (Industrial Relations Act 1988 (Cth) s 334 and Conciliation and Arbitration Act 1904 (Cth) s 5), a contravention of s 298K is not an offence: s. 298X. The civil onus of proof is applicable. Therefore, while the cases decided under the earlier offence provisions offer some guidance on the operation of s 298K, it is necessary to exercise some caution in applying principles developed under the previous statutes to the present provisions. 221 If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: s 298V; Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J. The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267.
(3) Whether onus of proof can be discharged by establishing prohibited reason not "substantial and operative" 222 For the applicants it is submitted it is no longer necessary, as was the case under the statutory predecessor to s 298K, to prove that the prohibited reason was a "substantial" or "operative" reason for the employer's action. In General Motors-Holden's Pty Ltd v Bowling (1976) 12 ALR 605 the High Court was concerned with an allegation that a shop steward had been dismissed from his employment for a prohibition reason (as defined in s 5(1) of the Conciliation and Arbitration Act 1904 (Cth)). The subsection relevantly prohibited an employer dismissing an employee "by reason of the circumstance" that the employee was an officer, delegate or member of an industrial organization. Mason J concluded (at 616‑617) that an employer was actuated by a particular reason or circumstance if that reason or circumstance was "a substantial and operative factor" although not "sole or predominant" influencing him to take that action. Gibbs, Stephen and Jacobs JJ agreed with Mason J's analysis. Barwick CJ dissented. For Mr Criddle (with the agreement of the other respondents) it is argued Mason J's approach has been accepted and followed in numerous industrial relations cases since 1976 and should be followed here. See Lewis Construction Co Pty Ltd v Martin (1986) 70 ALR 135 at 137 per Woodward, Jenkinson and Gray JJ; AMIEU v Sunland Enterprises Pty Ltd (1988) 24 IR 467 at 477 per Gray J; Curran v Cornwall's (Wholesale) Meat Co Pty Ltd (1988) 25 IR 394 at 394 per Keely J; Johns v Gunns Ltd (1995) 60 IR 258 at 267 and 271 per Northrop J; Kelly v CFMEU (No.3) (1995) 63 IR 119 at 126 per Moore J; and Howarth v Frigrite Kingfisher Pty Ltd [1998] FCA 612 (29 May 1998) per Murphy JR. 223 For the respondents it is then contended s 298L(1) of the WR Act employs the term "because" rather than "by reason of". It is said there is no sufficient distinction between the statutory language under consideration by the High Court in Bowling and the terms of s 298L(1) to warrant a departure from the long-standing statement of principle established in that case. It is submitted this Court should therefore construe s 298L(1) to require the GPA to establish (having in mind the effect of s 298V) that the alleged prohibited reasons were not the substantial and operative factor for the GPA's conduct. It is said it is not enough, to make out a breach of s 298K(1), for the applicants ultimately to establish that a particular prohibited reason was merely a reason for the GPA's conduct. 224 In my view the words "or for reasons that include a prohibited reason" in s 298K(1) effect a change to the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the "substantial" reason. It would have, of course, to be "operative" - that is it would have to be a reason. Section 298L is to be understood subject to that requirement.
(4) Concepts of "injury in employment" and of "position" 225 The word "injury" includes the meanings "wrongful actions or treatment; violation or infringement of another's rights; suffering wilfully inflicted" and "hurt or loss caused to or sustained by a person or thing; harm, detriment; damage": The New Shorter Oxford English Dictionary p 1731. The word "prejudice" is defined as "harm or injury to a person" ibid p 2333. "Harm" is defined as "hurt, injury, damage, mischief": ibid p 1191. 226 In s 298K(1) the word "injury" is used in relation to "an employee in his or her employment". The word "prejudice" is used in relation to an alteration of "the position of an employee" to that employee's prejudice. 227 The same words are used in s 170MU of the WR Act where it is provided: "(1) An employer must not: (a) dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; or (c) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action." The concepts of injury in employment and prejudicial alteration of position have been considered in a number of cases arising under the Conciliation and Arbitration Act and the Industrial Relations Act. In Roberts -v- General Motors Holden Employees' Canteen Society Inc. (1976) 25 FLR 415 at 419, Smithers, Woodward and Evatt JJ accepted that "in the case of injury in employment, a series of acts extending over a period, rather than a single act, may be involved." 228 In Linehan v North West Exports Pty Ltd (1981) 57 FLR 49 at 61‑62 Ellicott J held that where an employee is a regular or permanent employee and is terminated so that he lost his status and the expectations and benefits of annual leave and sick leave payments which went with it, his position was altered to his prejudice. 229 The concept of "position" was considered in Childs v Metropolitan Transport Trust (1981) IAS Current Review 946. Smithers J there held that the test of prejudicial alteration to position had been added to cover a position where injury was not manifested to the employee. He said: "It is possible to read the word 'position' in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word 'position' should be read rather to refer to a man's employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment. Fear of alteration of any of those terms or of the entitlements thereunder would be as potent a factor inhibiting an employee from operating the Act as fear of dismissal, or loss of pay or something in the nature of an immediate injury. I think therefore that cancellation or repudiation of a term of employment which has been agreed upon, cancellation or repudiation by an employer which the employee is in no position, legal or otherwise, to resist or oppose, although he may get some legal rights in relation to it, by withdrawal of a promise of secure employment in a position for an agreed term is an alteration in the employee's position within the meaning of s. 5, and I think it takes place on the day of cancellation or repudiation of the promise that was made. From then on his position is substantially altered. The term has gone." He added (at 948): "I cannot help thinking that 'injury' refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank." 230 Evatt J adopted and applied these views in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 290-292. In doing so he stated (at 290): "It is clear in my view that the words [or alter his position to his prejudice] were added to the section to overcome a situation in which an employer did something short of dismissing an employee but which was something which could be said to be harmful to him in his employment." The concept of injury in employment was examined further by Ellicott J in Squires v Flight Stewards Assn of Australia (1982) IR 155. At 164 he held that an employer in standing down an employee on full pay for a month injured the employee in his employment because the employee was singled out by the employer and treated differently to other employees for reasons not associated with the manner in which he was performing his work, particularly where the standing down was because of a request by the union. Ellicott J continued: "The words 'injure in his employment' are in the context of s. 5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial. Singling him out to be stood down from his employment for a period in circumstances where his fellow employees won't work with him for that period is in my view clearly an injury to him in his employment." The decisions in Childs and Blair were considered in Kimpton v Minister for Education of Victoria (1996) 65 IR 317 at 319 by North J in the course of considering a motion to dismiss an application as disclosing no cause of action where the alleged injury or prejudice arose from a requirement by the respondent for the applicant to participate in an investigative process. North J did not regard it as hopeless or untenable to contend that the requirement could amount to a relevant injury or prejudicial alteration. However, he considered the matter should be resolved at trial in the light of the available evidence. 231 The concept of "singling out" a member of a union for denial of a wage increase was held by Marshall J in Health Services Union of Australia v Tasmania (1996) 73 IR 140 at 145 to constitute an "injury" to the employee in "his or her employment" within s 334(1)(a)(i) of the Industrial Relations Act 1988, applying Squires at 164. Furthermore, he held that an employer's reneging on an assurance to pay a wage increase during a period in which bans and limitations had been imposed, contrary to prior assurances, resulted in an alteration to the positions of the employees to their prejudice, applying Linehan at 62. 232 In relation to the concepts utilized in s 170MU Ryan J said in Independent Education of Union of Australia v Canonical Administrators (1998) 157 ALR 531 at 548 that s 170MU(1) "precludes an employer from discriminating against an employee wholly or partly for the same reason, by, for example, the allocation of less congenial shifts or rosters or affording fewer opportunities for overtime than are extended to other employees". This is a reference to the issue of "singling out". 233 The concepts were further considered in Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 77 FCR 456 at 462 per North J. There certain employers prior to 23 September 1997 owned assets and business of a stevedoring operation at particular ports as well as employing labour for the operation. On that date they sold the assets and business to Patrick Stevedores ESD Pty Ltd under business purchase agreements. Each of the employers also entered into a labour supply agreement with ESD under which they agreed to provide labour and carry out certain services. The effect of the action of the employers and transferring their businesses and entering into the labour supply agreements was that ESD had the power to bring to an end to the only significant asset of the employers rendering each employer insolvent and, as a consequence, to allow the employers to claim the workforce was redundant. North J said at 462: "The concepts of injury and prejudicial alteration referred to in s 298K(1)(b) and (c) are concepts of wide operation. They are capable of referring to the effect of a commercial transaction entered into by an employer which has, or may have, an unfavourable impact on employees: Kimpton v Minister for Education (Vic) (1996) 65 IR 317. In my view, there is a serious question to be tried that the employers injured the employees in their employment or altered the employees' position to their prejudice by entering into the BPAs and the LSAs or by appointing administrators." cf Grayndler v Cunich (1939) 62 CLR 573 at 594‑595 per Evatt J.
5.3 Evidence 234 On 7 September 1998 Mr Durant on behalf of the GPA wrote to each of the employees advising that the GPA had made a decision to no longer provide stevedoring labour. He said as a result there were various options and opportunities available to the employee. He enclosed documentation containing relevant information concerning these. A voluntary redundancy package "consistent with industry standards" was offered. Certain payments were provided for in addition to any other Award entitlements. The offer was to remain valid whilst the GPA was involved in its restructuring program which was expected to be concluded by the end of 1998. 235 For employees who wished to seek other employment opportunities within the Port or external employment it was advised the GPA would be advertising a number of positions internally. Where an employee remained with the GPA he would be offered new employment conditions under workplace agreements. It was further advised that "employees should understand that choice remains and if they are not satisfied or uncomfortable with workplace agreements, they are able to remain under the Award/Agreement conditions". Assistance was offered to employees interested in seeking employment elsewhere. 236 It was also advised that for those employees who at the end of the process had not been able to find any other employment a voluntary redundancy package would be available or alternatively employees would be placed on redeployment lists. It was advised that during the time of redeployment an employee would be employed on his base award rate of pay but be expected to perform whatever duties were required of him within his competency and so long as it was safe to do so. Furthermore, employees would be obliged to accept job relocation to other agencies within the State Government structure if the GPA could not provide them with meaningful ongoing work. 237 The voluntary redundancy package was only available to employees who expressed an interest prior to 31 December 1998. 238 Redundancy payments were made to a number of former employees of the GPA by the GPA between late October and mid‑November 1998. These employees voluntarily resigned. 239 Mr Winch-Buist was advised on or about 30 December 1998 that employees remaining in the employ of the GPA were to be re-classified from irregular shift workers to day workers after 31 January 1999. Further communication to the employees was made by notice dated 2 January 1999. 240 The ten MUA employees have likewise been reclassified as day workers. Their annual leave entitlement has been reduced from five weeks to four weeks as a consequence. 241 The second applicants and Frank Praprotnik were told their labour will not be allocated for stevedoring work after 25 March 1999. They continue to be allocated to stevedoring work only because of the GPA's undertaking pending the outcome of this trial, or the GPA's decision to withdraw the undertaking. They now face the prospect of redeployment pursuant to the Public Sector Management Act 1994 (WA) ("the PSM Act"). Sections 94(2)(b), 94(3)(c) and 94(4); Public Sector Management (Redeployment and Redundancy) Regulations 1994 ("the PSM Regulations"), reg 13. The five employees may be dismissed without entitlement to severance pay if they refuse a direction: PSM Act, ss 86(3)(a), 86(9)(b)(i), 88(1)(b)(i) and 89(1);PSM Regulations 1994, reg 10. 242 Mr Criddle applied for and obtained an exemption under reg 22(2) of the PSM Regulations from reg 22(1) which prohibited re-employment by a private contractor in the Port in the event of a government employee being made redundant. This was necessitated by the isolated location of Geraldton and its few alternative sources of employment as well as the age and skill level of the employees.
(1) Consequences of voluntary redundancy 243 For the applicants it is contended those employees who accepted the voluntary redundancy package received the greater than normal redundancy package but they had lost their jobs. They could give up work, seek employment with one of the stevedoring licensees, seek employment at the BHF as a stevedore, seek some alternative type of employment or fail to obtain any alternative employment at all. The applicants therefore contend evidence establishes (1) there was an inevitability that those who took redundancy and wished to continue at the Port would not be able to obtain such employment; (2) those who did obtain employment either at the BHF with GSA or with one of the stevedoring licensees would just as inevitably be employed on worse terms and conditions; and (3) the redundancy benefit received would not make up for the losses incurred over the balance of the employee's working life. This was not pleaded as proscribed conduct or a threat of such. However it appears in the submissions for the applicants from time to time as if it established or assisted in establishing injury in employment or prejudicial alteration to position of an employee. 244 It is not necessary to proceed to detailed fact finding on these propositions because I consider s 298K(1)(b) has the following effect in respect of voluntary redundancies: (1) an offer of voluntary redundancy is not a threat to injure an employee in his or her employment. It is an offer the employee may accept or reject. (2) Acceptance by an employee of payment of redundancy, a fortiori payment at an enhanced rate, is evidence of absence of injury in the employment to which the redundancy relates. (3) Once accepted by the employee, the redundancy takes effect and the employment ceases. There is therefore no relevant employment against which to measure any alleged injury arising from the redundancy. (4) Consequently, allegations of worse terms and conditions being inevitable on engagement in new employment are not relevant to alleged injury in the former employment. Section 298K(1)(b), even given its wide connotation, does not address employment as a general condition but is referable to the particular employment in which the injury is said to have occurred or been threatened. Cf Australasian Meat Industry Employees' Union v R J Gilbertson (Queensland) Pty Ltd (Gray J, Federal Court of Australia, 8 December 1988) unreported, 15-17.
(2) Threat to dismiss 245 The plea of threat to dismiss in par 28 is not supported by particulars. In par 13(bb) it is pleaded that the threat to dismiss was constituted by the advice to the second applicants that if they did not take redundancy they would be redeployed within the public sector in Western Australia followed by a resolution of the GPA on 16 January 1999 to register the second applicants and Frank Praprotnik for redeployment. 246 However, an offer of voluntary redundancy under the PSM Act and consequent redeployment is not a dismissal. The PSM Act provides for dismissal only in limited circumstances which are in any event distinguished from redundancy and redeployment: see ss 86(3)(a), 86(9)(b)(i), 88(1)(b)(i) and 89(1). Consequently, a threat of redeployment does not constitute a threat of dismissal. This would apply equally to any proposal of redeployment in respect of the MUA employees.
(3) Injury in the employment or threat of such injury; prejudicial alteration to position or threat of same
(a) Change to day work/irregular shift work/denial of overtime 247 There is no evidence that the second applicants have been injured by changes to day work, denial of irregular shiftwork, denial of overtime work, reduction in annual leave entitlements or adverse change to leave entitlements. This is because as a result of undertakings given they have continued in the employment of the GPA in stevedoring work. 248 The case for the applicants is that there has been a threat to injure the second applicants in one or all of the following ways, change to day work with denial of irregular shiftwork and consequent denial of overtime; redeployment; redundancy. 249 As to the threat of denial of overtime there is no threat of "denial" of overtime. The claim rather is that there is a reduced opportunity to perform overtime work. 250 On 22 January 1999 the second applicants and the MUA employees were advised that their terms and conditions of employment were changing. Employees would no longer be classified as irregular shift workers and would instead be classified as day workers. As a result, amongst other changes, their hours of work were increased to forty hours per week, they would not be given overtime on a rostered basis but on the basis of an offer by their supervisor and their annual leave would be reduced from five weeks to four weeks per annum. This was consequent upon the relevant decision to cease stevedoring work. 251 The evidence of Mr Winch-Buist was that prior to the restructure overtime was allotted according to a points roster displayed on a notice board. The result was that the people lowest on the roster could be allocated to jobs which would give them the most reward. 252 The evidence of the amount expended by the GPA on overtime work in respect of stevedoring and in respect in mooring and unmooring work in the period from 21 June 1997 to 26 March 1999 showed the following average hours of overtime worked: TABLE OF AVERAGE OVERTIME Date Monthly Average Hours Mooring and Unmooring Overtime Monthly Average Hours Stevedoring Overtime Total Monthly Average Hours Overtime 21-06-97-18-07-97 4.21 9.17 13.38 19-07-97-15-08-97 3.77 14 17.77 16-08-97-12-09-97 3.45 20.72 24.17 13-09-97-10-10-97 5.05 14.83 19.88 11-10-97-07-11-97 6.59 11 17.59 08-11-97-05-12-97 4.68 12.73 17.41 06-12-97-02-01-98 11.61 28.59 40.20 03-01-98-30-01-98 6.07 15.55 21.62 31-01-9827-02-98 6.12 20.12 26.24 28-02-98-27-03-98 4.39 34.37 38.76 28-03-98-24-04-98 4.81 38.11 42.92 25-04-98-22-05-98 3.34 12.77 16.11 23-05-98-19-06-98 5.69 18.85 24.54 20-06-98-17-07-98 6.15 20.04 26.19 18-07-98-14-08-98 4.11 10.58 14.69 15-08-98-11-09-98 2.93 13.4 16.33 12-09-98-09-10-98 4.17 16.36 20.53 10-10-98-06-11-98 4.51 12.63 17.14 07-11-98-04-12-98 9.86 17.86 27.72 05-12-98-0101-99 10.94 16.73 27.67 02-01-99-29-01-99 9.75 22.13 31.88 TOTAL 122.20 380.54 502.74 30-01-99-26-02-99 18.02 13.28 * 31.3 * 27-02-99-26-03-99 7.92 6.04 * 13.96 *
*MUA employees could not have shared equally due to time constraints 253 For the applicants it is submitted in its reply that the loss of stevedoring work will have a "dramatic effect". However, the evidence of Mr Winch-Buist was that the MUA employees would not be excluded from stevedoring work but rather would only be "available to undertake stevedoring work outside of their normal working hours which are 8.00 am‑5.00 pm". Additionally he deposed that if a MUA employee was required by the GPA to be available to moor or unmoor a vessel, that employee would not be available to be allocated stevedoring work even when the employee was required to undertake mooring work outside of normal working hours. He testified that the only regular overtime that would be available to the MUA employees would be mooring and unmooring work. This latter evidence was supported by Mr Durant's affidavit evidence. 254 Mr Winch-Buist with the assistance of information provided by Mr Treasure (the finance officer of GPA), estimated that the MUA employees would earn approximately $5,000 per annum in overtime for mooring and unmooring work. On the basis of these figures be estimated that the MUA employees would lose individually between $24,058 and $7,513 per annum, although most of the losses would be in the order $20,000. 255 For the GPA it is contended that the MUA employees are continuing to earn overtime at or about the same level which they have done since 21 June 1997. This is supported by reference to figures extracted from the evidence which establish the following: "· From 21-6-97 - 29-01-99 (21 Months) the 10 named employees collectively averaged 354.77 hours overtime per month. · In the 2 months commencing 30-01-99, the 10 named employees collectively averaged 333.50 hours overtime per month. · From 21-6-97 - 29-01-99 (21 Months) the 10 named employees individually averaged 35.48 hours overtime per month. · In the 2 months commencing 30-01-99, the 10 named employees individually averaged 33.52 hours overtime per month." 256 Overtime is provided for in cl 24 of the Award. The starting proposition is that "an employee shall work reasonable overtime where required by the employer". Overtime is applicable in respect of "all time worked in excess of the rostered ordinary hours of duty" and all time worked on a rostered day out is treated as overtime. For all time worked in excess of or outside the ordinary hours of work the provision is that the rate of pay shall be twice the ordinary rate Monday to Saturday and two and a half times the ordinary rate on a Sunday or a Public Holiday. Provisions are made in respect of different rates to apply where an employee is engaged on irregular shiftwork immediately prior to the commencement of or following the conclusion of a shift in ordinary hours of work. 257 Rostering arrangements are provided for in cl 23 of the Award. By subcl (1) an employer may roster employees in accordance with the Award to perform irregular shiftwork. Although subcl 22(2) provides the agreement of the employee and the GPA is needed for a change in status from designation as a day worker to irregular shift worker or vice versa it has not been contended that any employee has a right to perform irregular shiftwork. The case for the applicants is presented on the basis that it is a fact they have been engaged on irregular shiftwork and hence enjoyed the levels of overtime reflected in the above table. From consideration of this evidence I make the following findings: (1) There is no evidence of a denial of overtime to the second applicants or to the MUA employees. That was the injury or prejudicial alteration which was pleaded. It is not made out. (2) There is no contention there has been a denial of a right or entitlement on the part of either the second applicants or the MUA employees to earn overtime. (3) There is no evidence that any one of the second applicants or the MUA employees have been singled out nor is it contended that the action said to injure them in employment or prejudice their position is constituted by "singling out". However, I do not consider s 298K(1) is only applicable to conduct in which an employee is singled out. (4) There is no evidence to the end of the relevant period (26 March 1999) that there has been any present reduction in overtime paid to the second applicants or the MUA employees. Consequently no present loss of overtime is established in respect of any of them. (5) It is more probable than not that the overtime able to be earned by the second applicants and the MUA employees in the future will be reduced below that which they earned to 26 March 1999. It is not possible to quantify the extent of the reduction with certainty because of at least the following factors: (a) the month by month variation in the availability of overtime work at the Geraldton Port exemplified in particular by February 1999. (b) the fact that there will be a lesser number of persons sharing in the overtime. (c) the continuing effect of the undertakings given in this proceeding in the figures for February and March 1999. (d) the fact that MUA employees are able to participate in earning overtime from stevedoring. (e) the uncertainty concerning the likely extent of overtime available in respect of mooring and unmooring work.
Is there an injury in employment or prejudicial alteration to position? 258 Clause 24 of the Award does not guarantee any particular level of overtime. There is therefore no definite benchmark derivative from the Award against which to measure injury or prejudice. 259 The evidence of the overtime in the above Table gives some guidance. On the authorities previously referred to it is likely that the probable reduction will reduce the earnings of the second applicants and the MUA employees from overtime below the average levels earned during the 21 month period prior to the changes for which figures are available as reflected in the Table. 260 In my opinion the prospect of reduction in overtime earnings of the second applicants and the MUA employees comes within the understanding in the case law of the concept of prejudicial alteration to their positions. The change in that respect is one which qualifies therefore as conduct pursuant to s 298K(1)(c). 261 I do not consider the conduct by the GPA in advising the second applicants and the MUA employees that they had been moved to irregular shiftwork (see Mr Durant's letters of 29 December 1998 and 22 January 1999 respectively) could be characterised as action which "threatened" injury or prejudicial alteration. Rather, the injury and prejudicial alteration are the consequences of that action and accordingly I find no action was taken to threaten the relevant employees in that respect pursuant to s 298K(1).
(b) Threat of redeployment 262 As to the threat of redeployment, it is not possible for the GPA to redeploy people to areas outside Geraldton. Under the PSM Regulations the Minister can only direct "registered employees" (i.e. employees who are surplus to requirements and who have been placed on the "register" pursuant to reg 11) to take up positions elsewhere in the public sector where there is "suitable employment' for these employees. Section 94(6) of the PSM Act provides that 'suitable employment" must be suitable having regard to the respective responsibilities attached to it at the time the relevant offer is made; suitable having regard to the experience, qualifications and competence of the employee; and does not require change of residence. 263 For the applicants the contention is made that threat of redeployment can nevertheless can be a threat of injury because there is no requirement in those provisions that any "suitable" job be remunerated at the same rate. Reference to the PSM Regulations shows that to be the case. For the purposes of those regulations "suitable employment" is defined as having the meaning given by s 94(6) of the PSM Act as read with subregs 3(2) and (3). The relevant portion is that which appears in subreg 3(2) as follows: "(2) For the purposes of paragraph (c) of the definition of 'suitable office, post or position' or 'suitable employment' in section 94(6) of the Act, the prescribed criteria to be satisfied by an office, post or position or employment as the case requires, are that - (a) it is the most suitable actually available; and (b) the maximum pay applicable to the office, post or position or employment is- (d) (i) as close to that applicable to the former office, post, position, or employment as is reasonably practicable; and (ii) in any case, subject to subregulation (3), is not less than 80% nor more than 110%, of the maximum pay applicable to the range of classification within which the office, post or position or employment occupied or formerly occupied by the employee in question is or was situated." 264 Subregulation 3(2)(b)(ii) makes it apparent that upon redeployment an employee can be relocated in "suitable employment" although he or she is receiving 80 per cent of the salary in the prior position. However, likewise, the new position could yield not more than 110 per cent of the prior maximum pay. 265 In my opinion it follows that prospect of redeployment cannot in itself necessarily constitute a threat to injure or a threat to alter the position of an employee to the prejudice of that employee. Until the facts of the redeployment fall out it is not known whether they will be injurious or prejudicial. It remains open, as the PSM Regulations expressly acknowledge, that redeployment could take place either without injury or prejudice or with enhancement. The second applicants cannot therefore now establish a threat to injure in employment or a threat to alter their position in this respect. Evidence which established that the isolated location of Geraldton meant that redeployment in that area would be difficult is not evidence which establishes the necessary injury or prejudicial alteration. In the circumstances of this matter s 298K(1)(b) cannot operate in respect of a threat to redeploy and would only operate where there was evidence arising from a particular proposed redeployment. Even then, the fact that provision for redeployment formed part of the conditions of employment would require close consideration. 266 There is a supplementary argument that there is a threat to injure the second applicants or prejudicially alter their position because a refusal of an offer of redeployment by any of them (for example for a reason that it required a change in place of residence) could lead to their dismissal. The right to dismiss arises from application of PSM Regulation 13(2) which enables the Minister administering the PSM Act, upon refusal of an offer of suitable employment by a registered employee, to direct the registered employee to accept that offer. Non‑compliance with that direction would then arguably give rise to rights of dismissal pursuant to the PSM Act. An offer of redeployment will not necessarily have those outcomes. Any dismissal would result from an act of the employee in refusing the direction to redeploy. Furthermore, the conditions of the employment of the employee would be subject to the provisions of the PSM Act and the PSM Regulations so that the conditions of the employment would include that condition. There is therefore no basis for concluding that an offer of redeployment becomes injurious or prejudicial because of that posited ultimate outcome. 267 These reasons applicable to the second applicants also apply to Mr Praprotnik.
(c) Change in Leave Entitlements 268 Clause 27(1)(b) of the Award provides: "The fifth week's annual leave is in recognition of the fact that employees to whom this clause applies are available for work on any shift for the full seven days of a working week, may be required to work on both the Saturday and Sunday of a week or a holiday and from time to time actually attend for work on both the Saturday and Sunday and/or holiday." It is apparent therefore that the Award of extra annual leave is to compensate employees for the inconvenience of working irregular shiftwork. 269 It follows that losing the week of additional leave provided as specific compensation for adverse working conditions cannot be an 'injury' or prejudicial alteration as it was a provision agreed to in the Award. Furthermore the MUA is a party to the Award from which it may be inferred that it accepted that four weeks annual leave for day workers was not injurious or prejudicial. The foundation for this inference is that the MUA agreed to the terms of the Award. Additionally no witnesses were called on behalf of the applicants to testify that they were disadvantaged, injured or prejudiced. 270 There was no evidence that other leave entitlements had changed or would change adversely.
(4) Refusal to employ 271 In par 33 loss and damage on the part of the MUA casual employees is pleaded on the basis that "full particulars will be provided prior to trial". No such particulars were provided. No evidence of any such damage was called. However Mr Winch-Buist deposed that since 1 February 1999 the MUA casual employees had not been allocated by the GPA so that as a result they no longer had the opportunity to undertake work. 272 It is clear that the GPA has not refused to employ the MUA casual employees. In any event the casual employees had no ongoing expectation of work and no right to expect work. The GPA has always been free to employ or not employ the MUA casual employees as it saw fit.
(5) Other claims 273 There is no basis for the claim that Mr Charlton or Mr Criddle caused, contributed to, encouraged and/or influenced the conduct engaged in by the GPA which is said to transgress s 298K(1). It is founded on the notion that in encouraging or influencing the GPA to implement State Government policy Mr Charlton and Mr Criddle were necessarily encouraging or influencing conduct which was injurious and prejudicial and hence unlawful under s 298K(1). This view is rejected in the reasons relating to the claim of conspiracy. 274 There is no basis for considering loss of membership or power and influence by the MUA, if established, come within s 298K(1) save that it may be arguable the second applicants have suffered injury in their employment as a consequence of such loss of power. There is no evidence to support this.
(1) Non-application to threats 275 The case for the GPA contends as follows: "Section 298K(1) prohibits an employer from taking, or threatening to take, one of the actions specified. The prohibited reasons for engaging in the conduct referred to in s 298K(1) are listed in s 298L(1). Section 298L(2) deals with the situation where an employer threatens to engage in conduct referred to in s 298K(1) rather than carries out the conduct. Section 298L(2) applies only to prohibited reasons which refer to a person doing or proposing to do a particular act, or not doing or proposing to do a particular act, eg to join in industrial action or to become a member of an industrial association. However, s 298L(2) does not apply where the reason referred to in s 298L(1) involves a continuing state of affairs ie an employee is a member of a union or is entitled to the benefit of an award or agreement. Those reasons do not refer to a person doing or proposing to do a particular act or not doing or proposing not to do a particular act. Accordingly, in this case, the GPA cannot have contravened s 298K(1) by threatening to do one of the things referred to in that section for reasons specified in ss 298L(1)(a) and (h). The GPA can only have contravened s 298K(1) by doing one of the things specified in that subsection for reasons including reasons specified in s 298L(1)(a) or (h)." I do not accept this submission. In my opinion s 298L(2) is a provision which has the effect of stating that in the particular case of the circumstances of a threat falling within pars (a), (b) and (c), the threat is to be taken to have been made for the prohibited reason. It is not a provision which seeks to specify the only conditions in which any threat can be taken to have been made for a prohibited reason.
(2) Effect of s 349(1): ascertaining state of mind 276 Section 349 of the WR Act provides: (e) "(1) Where it is necessary to establish, for the purposes of this Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and (b) that the officer, director, employee or agent had the state of mind. (2) Any conduct engaged in on behalf of a body corporate by: (a) an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or (b) any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent; (f) shall be taken, for the purposes of this Act, to have been engaged in also by the body corporate. (g) (h) (3)A reference in this section to the state of mind of a person includes a reference to the knowledge, intent, opinion, belief or purpose of the person and the person's reasons for the intent, opinion, belief or purpose." 277 Section 349(1) is in the same terms as s 84(1) of the Trade Practices Act 1974 (Cth) was considered by Lockhart J in Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 36 where he said: "Although the two subsections apply to proceedings for contraventions of the Act (only Pt V in the case of s 84(1)) they apply also to proceedings for injunctions, damages and orders under s 87. Where a contravention of a provision of PT V of the Act requires an intent by the corporation, without s 84(1) the corporation would not be guilty unless the requisite intention was a state of mind of one or more of the persons who constituted the directing mind and will of the corporation, the test enunciated by the House of Lords in Tesco Supermarkets Ltd v Nattrass [1972] AC 153. But s 84(1) adopts a different test to Tesco: see Universal Telecasters (QLD) Ltd v Guthrie (1978) 32 FLR 360 and Tubemakers, case (supra). Under s 84(1) it is not necessary for the intent to be that of a person who possesses the directing mind and will of the corporation, it is sufficient if the person having the intent is a servant or agent of the corporation, it is sufficient if the person having the intent is a servant or agent of the corporation. This is a large extension to the organic theory enunciated in Tesco." For the applicants it is submitted that the effect of s 349(1) is that the state of mind of any one of the board members who engaged in the particular conduct is sufficient to establish the intent or purpose of the GPA. In my opinion Section 349(1) is not to be understood in that way. Although the subsection uses the words "it is sufficient to show" the section has to be understood in the context of the common law as it appears in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 and other cases. The effect of the subsection is that stated by Lockhart J in Walplan namely to extend the sources of evidence of the state of mind of the GPA. However the sufficiency in that respect arises only where the named persons including directors act "within the scope of his or her actual or apparent authority". In the case of the making of the relevant decisions by the GPA no director had the actual or apparent authority to alone make those decisions. They were required to be the decisions of the GPA. It is therefore necessary to consider (below) how a decision of the GPA is constituted. 278 Section 349(1) is relevant to a consideration of satisfaction of the requirements of s 298K(1) because that latter section makes it necessary to establish the state of mind of the GPA as a body corporate in relation to particular conduct being the passing of the relevant decisions on 3 July 1998 "for reasons that include a prohibited reason". The purpose and reasons of the GPA form part of its state of mind: s 349(3). 279 The states of mind which are relevant are those of the members who made the relevant decisions. Mr Durant was not one of them so that whether he was an employee or agent for the purpose of s 349(1) is not relevant to that question. 280 However, there is no reason why the evidence of the state of mind of each of the members should not be considered in the context of evidence leading up to the making of the relevant decisions and their implementation. For that purpose it is necessary to consider whether Mr Durant was an employee or agent for the purpose of s 349(2).
(3) Effect of s 349(2): conduct 281 Section 349(2) is concerned with conduct not intention: cf Walplan at 36 per Lockhart J. However the conduct to which it relates is conduct to which regard has to be taken "for the purposes of this Act". It is not therefore determinative in relation to the claim for conspiracy which is not a claim made under the WR Act. 282 For the respondents it is contended that Mr Durant is not "an employee and agent" of the GPA and so cannot come within the operation of s 349. It is submitted for them that Mr Durant is a Crown servant or agent, the GPA being a corporation which is a Crown agent. It is submitted that it cannot be vicariously liable for the torts of its servants because the Crown agent is not the master. It is said the law is that the Crown agent is treated as if it were an individual Crown servant. Because an individual Crown servant is not liable for the torts of subordinate servants, neither is a Crown agent: PW Hogg, Liability of the Crown (2nd Ed) p 90, pp 255 and 257‑258). 283 However s 18 of the GPA provides: (i) "(1) The Governor, on the nomination of the Port Authority may appoint a general manager and on recommendation of the Port Authority may dismiss the general manager. (j) (k) (2)The Port Authority may appoint such other officers and servants as may be necessary for the administration of this Act and may dismiss any of those officers or servants. (l) (m) (3)All persons appointed pursuant to subsection (1) or (2) of this section are subject to the control of the Port Authority. (n) (o) (4)Notwithstanding anything in this Act, to the extent that there is in the case of a person who is appointed under subsection (1) or (2) to be the general manager or any other officer or servant, and who is a member of the Senior Executive Service within the meaning of the Public Service Act 1978 [now the PSM Act] an inconsistency between this Act and that Act shall prevail." The applicants point to subs 18(2) and the reference in it to "other officers and servants" as confirmatory of the intention of Parliament in enacting the section that the General Manager appointed pursuant to subs 18(1) is also be an officer and servant of the GPA: cf Sydney Harbour Trust Commissioners v Ryan (1911) 13 CLR 358 at 363-365, 367, 369-370, 373‑374. Hogg at p 90 accepts that statute may change the general rule that servants of a Crown agent are servants of the Crown itself. 284 I accept that s 18 changes the general rule so far as it applies to an appointment by the Governor on the nomination of the GPA of a General Manager, berthing master and wharf master. However, Mr Durant was not appointed by the Governor. He was engaged under a contract of employment between the Premier as "employing authority" under the PSM Act and himself. In my opinion the circumstances of Mr Durant's appointment do not bring him within the operation of subs 18(1). The consequence is that the primary common law rule is not displaced by statute in his case. 285 Finally for the applicants it is contended that nevertheless Mr Durant should be seen as the GPA's agent simply on the application of ordinary principles of agency in that he clearly acted on behalf of the GPA in the course of execution of his duties. Therefore it is said the GPA should be liable for his wrongful acts in his capacity as agent: cf Colonial Mutual Life Assurance Ltd v The Producers and Citizens Co‑operative Assurance Company of Australia (1931) 46 CLR 41 and New Zealand Guardian Trust Company Ltd v Brooks [1995] 1 WLR 96. 286 In my opinion Mr Durant is an "employee or agent" for the purposes of s 349 of the WR Act. That Act defines "employee" in s 4(1), subject to appearance of contrary intention, to include any person whose usual occupation is that of employee but to exclude a person who is undertaking a vocational placement. The matters arising as a consequence Mr Durant's status as a Crown agent are relevant to a determination of whether he committed a tort for which the GPA is liable. That is not alleged here. Apart from statute, the scope of a Crown servant's authority to bind the Crown by contract is determined by the general law of agency: Verrault v A-D QUE [1977] 1 SCR 41 cited in Hogg at p.168. Mr Durant was acting within the scope of his authority as General Manager of the GPA. There is no basis upon which his status as a Crown servant can preclude from the evidentiary matrix the effect of his actions taken on behalf of the GPA. 287 Likewise s 349(2) extends to any conduct engaged in by other persons falling within the ambit of par (b) (such as Mr Clarke) if that evidence is otherwise admissible.
(4) What constitutes the reasons of the GPA 288 Questions arising at a meeting of the GPA are decided by a majority of the votes of the members present and voting: GPA Act s 16(7). The relevant issue is what constituted the reasons of the GPA in making the relevant decisions. 289 The issue of determining the reasons for decision of a multiple member corporate body arose in IW v City of Perth (1997) 191 CLR 1, on appeal from the Full Court of the Supreme Court of Western Australia. The relevant issue concerned the reasons for the Perth City Council voting not to give planning approval for a drop-in centre for persons who were affected with HIV. The Council voted by 13 votes to 12 not to approve the application. At first instance Murray J held it would be sufficient if the vote of one councillor was produced by or grounded in the prohibited consideration. In the Full Court there were three views. Ipp J concluded that only a state of mind possessed collectively by a majority of councillors voting could be attributed to the Council. Wallwork J considered that a reason might be attributed to the Council if a majority of Councillors possessed that state of mind. Scott J considered the evidence did not establish the grounds for the Council's decision. See Kirby J at 62. 290 In the High Court the majority decided the case on a different ground and did not deal with this issue. Toohey and Kirby JJ addressed the issue. Their Honours found that if the decision would have been different but for some Councillors taking into account the unlawful reason, then the decision was made for reasons that included the unlawful reason. 291 On the approach of Ipp J the GPA would not have done the relevant acts for reasons including a prohibited reason unless the unlawful reason can be attributed to all the members. On the approach of Toohey and Kirby JJ the GPA would have done the relevant acts for a prohibited reason if three members of it were actuated by a prohibited reason. 292 I consider that I should follow the approach favoured by two justices of the High Court. 293 I reject the submission for the applicants that it is implicit in the submission for the GPA on this issue that it accepts at least some of the members entertained proscribed reasons. The issue arises properly and without any such implication because the GPA bears the onus of establishing the relevant decisions were not made for a prohibited reason.
(5) The necessity for reasons to have causal effect 294 I agree with the submission for the GPA that the words 'for' in s 298K(1) and 'because' in s 298L(1) require a causal connection between the act of the employer which injures the employee in his employment or alters his position to his prejudice and the status of the employee as a union member, in the case of s 298L(1)(a), or as a person entitled to the benefit of the Award or Agreement, in the case of s 298L(1)(h). The enquiry is directed to the reasons of the employer. 295 I also agree the fact that there is some connection between the employer's act and the employee's union membership or entitlement to the benefits of an award does not mean that the employer did the act because the employee was a union member or entitled to the benefit of the award. Whether an employer was actuated by a prohibited reason or reasons which included a prohibited reason is a question of fact. It will often involve questions of judgment and the characterisation of the employer's reasons: cf Wood v City of Melbourne (1979) 26 ALR 430. For example, if an employer made a decision to make his operation more efficient or to facilitate the provision of services to the service users at a lower cost (and for no other reason) that action is not open to the inference of having been taken for reasons which include that the employees are members of a union or have the benefit of an award. The critical question, however, is what were the actual reasons of the GPA and hence of each of its members. 296 I additionally agree that if members of the GPA were aware and welcomed a reduction in payments of penalty rates or the power and influence of the MUA as a probable, or even inevitable, consequence of its conduct, it does not follow that the GPA engaged in that conduct for reasons which included those reasons: Australian Builders Labourers Federated Union of Workers - Western Australian Branch -v- J-Corp Pty Ltd (1993) 114 ALR 551 at 562-565. At that passage the Full Court (Lockhart, Spender and Gummow JJ) relied on the following passage from Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 383: "It suffices, for present purposes, to say that, in my view, the question to be answered in determining whether conduct was engaged in for a 'purpose' mentioned in s 45D(1) of the Act is, to adopt the words of Viscount Simon LC in Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 444‑5, to be answered not by reference to whether it was appreciated that the relevant conduct might have the specified effect but by reference to the real reason or reasons for, or the real purposes of, the conduct and to what was in truth the object in the minds of the relevant persons when they engaged in the conduct in concert. In so far as the union was concerned, its purpose must, of course, be determined by reference to the purpose of those through whom it acted." I regard that passage as important in the context of this case; relying as it does on Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 444‑445, which is one of the important cases in the development of the law of the related issue of conspiracy. The full text of the relevant passage is: "The question to be answered, in determining whether a combination to do an act which damages others is actionable, even though it would not be actionable if done by a single person, is not 'did the combiners appreciate, 'or should they be treated as appreciating, that others would 'suffer from their action,' but 'what is the real reason why 'the combiners did it?' Or, as Lord Cave puts it, 'what is 'the real purpose of the combination?' The test is not what is the natural result to the plaintiffs of such combined action, or what is the resulting damage which the defendants realize or should realize will follow, but what is in truth the object in the minds of the combiners when they acted as they did. It is not consequence that matters, but purpose;…" The references to Lord Cave are from Sorrell v Smith [1925] AC 712. For reasons which appear elsewhere, I place no reliance on any emphasis which the decision in Veitch places on predominancy of purpose. That aspect plays no part in the passage cited.
(6) Application to organisational restructure 297 The following submissions are made for the GPA: "Sections 298K(1) and 298L(1)(h) do not take away from an employer the right to reorganise a business and reduce a staff or to cease business altogether when working expenses can be reduced or the operation made more efficient by ceasing to employ employees covered by an award. Where an employer reduces a workforce so as to reduce working expenses which are affected by an award and for no other reason, the employer does not contravene s 298K(1). In such a case the employer is not actuated by the reason that the employees are entitled to the benefit of an award but because the operations are otherwise unprofitable: Klanjscek -v- Silver (1961) FLR 182; Connington -v- Council of Municipality of Kogarah (1913) AR (NSW) 40; Grayndler -v- Broun (1928) 27 AR (NSW) 46: Grayndler -v- Cunich (1939) 62 CLR 573 where Evatt J excepted the case of ceasing business. See also Kelly-v-CFMEU (1995) 63 IR 119; Martin Howarth -v- Frigite Kingfisher Pry Ltd (1998) 612 FCA (29 May 1998, Murphy JR); Wood v City of Melbourne Corporation (1979) 26 ALR 430; Roberts -v- General Motors Holden Employees Canteen Society Inc. (1975) 25 FLR 415; Moss -v- Fantil Pry Ltd (1994) 58 IR 118; Fraser -v- Fletcher Construction Ltd (1996) 70 IR 117. Where an employer reduces the workforce for the reason only that the employer no longer wishes to operate some non-core part of the business, such as providing labour to stevedores, the employer does not contravene s 298K(1). In such a case the employer does not act because the employees are members of a union or have the benefit of an award but by reason that the operations are no longer to include non-core business operations." 298 The applicants challenge the relevance of the cited cases. More fundamentally their case contends that if the last proposition is true the protection of s 298K could be circumvented at the instance of an employer by allowing an employer to characterise business as "core business" and "non-core business". Essentially the argument for the applicants is that for an employer to injure or prejudicially alter the position of an employee or threaten to do either for reasons which include the reasons that there cannot be a reduction in costs of the Port whilst an employee is entitled to the benefits of the Award, is to entertain a prohibited reason under s 298L. The argument is similarly in respect of a reason that there can be no reliable service at the Port whilst the workforce remain members of a union. 299 In my view there is a fallacy in the way in which this argument is formulated for the applicants. The proposition is right so far as the reference to "an employee" is taken to refer to any of the applicants in respect of whom it is pleaded that s 298K(1) has application - that is the second applicants, the MUA employees and the casual employees. The proposition has no application beyond that to a workforce of the future in respect of whom there is no alleged proscribed conduct. That is, restructuring of the port for reasons designed to reduce costs by diminishing the influence of the Award and the Agreement generally beyond the pleaded workforce is not proscribed conduct. Likewise in respect of the MUA s 298K(1) has no application. Consequently the respondents are correct in submitting that s 298K(1) does not inhibit a reduction in workforce provided the method of implementation selected is one which does not lead to proscribed conduct under that subsection. 300 However, the central issue still remains to find what were the reasons for the GPA making the relevant decisions and implementing them.
(7) Scope of onus of proof 301 It is submitted for the GPA that it is not required by the WR Act that it must establish positively what its reasons for the relevant conduct were. The onus is on the GPA to displace the hypothesis raised on behalf of the applicants. One sure way of discharging that onus is to adduce evidence from which it is established that the GPA was actuated solely by non‑prohibited reasons. That is, to establish what the reasons were, as they lie peculiarly within the knowledge of the respondent: cf Bowling at 617 per Mason J. In my view that is not to preclude the onus being discharged in some other way. Here however the case for the GPA seeks to establish the actual reasons of each of the members and hence of the GPA. 302 I agree with the further submission for the GPA that the existence of reasons for such conduct which do not fall within s 298L of the WR Act will assist the Court in concluding that proscribed reasons were not included among the reasons for the conduct.
(8) Absence of cross-examination on central question 303 It is submitted for the respondents the Court should not reject the evidence of a witness in the absence of cross-examination: Byrne & Heydon, Cross on Evidence (4th Aust Ed 1991) par 17455. It is said each member of the Board was cross-examined about reasons, or 'factors', in his decision but it was not put to him that his reasons included that the relevant employees were members of the MUA or had the benefit of the Award or Agreement. That alone, it is submitted, should make the Court hesitate before rejecting their evidence to the effect their reasons for making the relevant decisions did not include those matters. I do not accept this submission. Reference to Cross on Evidence in the cited passage makes apparent that what is required is regard to the whole course of cross‑examination not absence of such a particular obvious question.
(9) Similarity in affidavit evidence of members 304 The reasons set out in the affidavit of the members contain paragraphs sworn in largely identical terms. These relate to negating the presence of prohibited reasons in their mind in making the relevant decisions and their positive reasons for doing so. The applicants point to the common form as a reason for finding lack of credibility in the affidavit evidence. In my view that is a consideration to have in mind in assessing that evidence in the context of the circumstantial evidence and oral testimony.
(10) Absence of discussion on 3 July 1998 305 In par 50 of his affidavit Mr Ramage swore: "The reason for the decision to cease providing stevedoring labour from the Authority' s own employees to stevedores who operated in the Port which were discussed by the Board at the meeting on 3 July 1998 did not include the reason that the persons employed by the Authority were employed under the Award or Agreement or were members of the MUA." Other members swore in their affidavit to similar effect. 306 For the applicants it is submitted that this should be disbelieved on the ground that on 3 July 1998 there was no discussion about whether a decision should be made to exit the provision of stevedoring labour. Consequently it is submitted that the evidence of each of the members was false and highly misleading. 307 I agree with the submission for the GPA that par 50 of the affidavit of Mr Ramage (and the similar paragraphs in affidavits of other members) had the effect and purpose of saying that the discussion at the meeting on 3 July 1998 did not include reasons which were prohibited reasons being advanced in favour of the decisions . It was a negative statement of what was not discussed. Accordingly there is no inference of falsity or misleading character able to be drawn on the basis the statement was falsely portraying a board discussion. 308 In any event, a reading of the testimony of Mr Anderson and Mr Burrows leads me to the view there was very little discussion on whether to proceed at the Board meeting on 3 July 1998, with most of the discussion directed to implementation. The absence of substantive discussion at the meeting of 3 July adds credence to the applicants' submission that between meetings Mr Durant spoke to members and obtained their attitude to the GPA proceeding in a particular way. This supports the significance of the circumstantial evidence to establishing the context in which the direct evidence of members is to be weighed. I agree with this submission.
(11) Factors and reasons 309 The evidence from Mr Durant and some other witnesses for the respondents distinguished between "factors" present in their minds and their "reasons" for the decision. This distinction was also relied upon in the submissions for the GPA. A "factor" is "a circumstance; fact; an element or component of something; a measured or quantifiable property". A "reason" is "a fact or circumstance forming a motive sufficient to lead a person to adopt or reject some course of action". See the New Shorter Oxford English Dictionary at p 204 and p 2495 respectively. These definitions suggest a distinction between factors as relevant circumstances and reasons as factors which have motivated a result. 310 The Macquarie Dictionary takes a slightly different approach in defining "factor" as "one of the elements that contribute to bringing about any given result" (p 62). It defines "reason" as "a ground or cause, as for … action". I proceed on the basis that what the WR Act requires to be negated are the presumed prohibited "reasons". Whether a factor is a reason is a question of fact. When there is evidence of factors being in the mind of the decision-maker it is necessary to decide whether it is credible they could be in the mind without being "objects in the mind": Crofter at 445. It is to be borne in mind consequences of action may be in the mind without being reasons: Tillmann at 383 applying Crofter at 444‑445. The significance of the reverse onus of proof is that it requires the presumptions of reasons be rebutted in that context. 311 The issue of "factors" arose in the trial because Mr Durant sent a document dated 29 June 1998 to Ms Mills who had the responsibility of handling the publicity of the Port surrounding the announcement of the relevant decisions which made reference to "Factors in Exiting Stevedoring". Those "factors" included: "6) Union sought and obtained a 'declaration of loyalty' to itself as a priority against loyalty in an employer/employee relationship (see petition attached). 7) The cheap shots fired into the local media by the MUA which are inimical to the GPA competitive position in respect of Geraldton, the future threat of competition from Oakajee and the real existing competition with Esperance and Kwinana. 8) … 9) Appearance of union challenge against the GPA's accountability and responsibility for management and administrations. 10) … 11) The constant view expressed by the union that current practice is excellent and repeated rejection of acknowledgement of the potential of continuous improvement. 12) System inimical to continuous improvement and pursuit of best practice by 'monopolising' waterfront practice, being 'unfriendly' to encourage of new entrants, not flexible with alternative working methods and being over protective aggressively, to the current club and cult. 13) … 14) Constant veiled and not so veiled threats of strikes and international reaction by union. 15) … 16) System 'over generous' to its members by broad industry standards. 17) Behavioural aspects that see the 'union' as running the port." In the document listing "factors" was a reference to "ludicrous practices". This referred to a document provided by Mr Durant to Ms Mills and members of the Board which listed rates of pay, time rates allowances, leave provisions and what were called "other generous practices". It was sent to members of the Board a few days prior to the meeting on 3 July 1998. It is a significant document in assessing the credibility of the evidence given by the members of their reasons. 312 The state of mind of the members of GPA is addressed in evidence in section I of the applicants' submissions which is to be read with sections E and F. 313 What is required essentially is that the affidavit evidence of each member of the GPA be considered in the context of that members cross-examination and the circumstantial evidence of the matters with which the GPA and Mr Durant were concerned in the time leading up to the making of the relevant decisions. This must be done in the context of the reversed onus of proof.
(a) Affidavit evidence 314 Mr Ramage deposed that his reasons did not include the prohibited reasons. He stated this in a variety of ways. His only positive statement of what his reasons were was that he "favoured the proposal [of ceasing to provide labour to stevedores] because ceasing to provide labour to stevedores would assist the [GPA] in carrying out its maintenance program."
(b) Discussion of over-manning and undesirable work practices 315 In relation to Mr Ramage's evidence the applicants say that its veracity is put in issue by evidence that the question of over-manning and undesirable work practices were the subject of continuous discussion between members of the GPA over at least the six month period prior to 3 July 1998. 316 It is also submitted for the applicant that if board members were constantly concerned with overmanning over a period of six months and then took steps to address the problem by the making of the relevant decisions, it cannot be said that overmanning was not one of the reasons for taking those steps. It is said there is an air of artificiality and unreality about the reliance which they place on the affidavits of the members in those circumstances. The submission is that it is not possible for the members to extricate from a reasoning process the prohibited reasons which were clearly present and pretend they did not exist when the weight of evidence establishes they were significant in the deliberations of each the members and other relevant persons in the GPA prior to the making of the relevant decisions. 317 For the GPA that proposition is accepted for the purposes of the argument and it is then submitted that it says nothing about the reasons of the members for making the relevant decisions which they made.
(c) Compliance with State Government policy and Mr Charlton's objectives 318 In the case of Mr Ramage there is no evidence that he made any decision to comply with State Government policies.
(d) Reduction in costs to users by avoidance of Award 319 Mr Ramage's evidence that he was in favour of making every effort to introduce wage payments that reduce the impact of overtime and shift penalty rates and wanted workplace agreements only for information purposes. 320 Mr Criddle's evidence was that Mr Ramage told him of his concerns about the costs problem and had done so with reference to the restructuring programs in relation to the Port. Mr Ramage had also told him of his concerns in relation to award conditions. 321 Mr Durant had said Mr Ramage had stated "we should be reducing the need for people to work overtime and incur shift penalty payments". 322 Mr Ramage was referred to the list of "ludicrous practices". He testified he was not aware these items came from the Award but agreed they were generous if in the Award. 323 When the list of "factors" was put to Mr Ramage he only accepted items 14 and 16 of those referred to above as relevant and purported not to understand the other items.
(e) Need to reduce MUA influence 324 Mr Ramage testified he agreed the objectives set out in a "Justification for Workplace Agreement" document were all correct. He therefore agreed with the statement that "the real benefits of the workplace agreement are the return of the right to manage without third party involvement, total flexibility and workplace practices, including hours of work in shifts and ability to implement change on an employer-employee basis". Mr Ramage did not agree that was a reason for any relevant decision or action by him.
(f) Finding of his reasons 325 Viewed in the context of all the matters which the evidence shows the Board was aware of as factors, Mr Ramage's sworn reason for supporting the relevant decisions and their implementation is not credible. It is far too narrow in the circumstances. His inability to grasp the list of factors evidenced his unwillingness to give full and frank evidence on matters which as chair of the Board he was bound to be familiar with. His agreement with the statement referred to under "Need to reduce MUA influence" establishes that he had in mind the objectives of the State Government policy. In my view his evidence as a consequence of its guarded character fails to negate the presumption that he acted for a prohibited reason.
(a) Affidavit evidence 326 Mr Burrows testified the reason for his agreement to the change in the BHF was that "it was being operated in an inefficient manner with ongoing costs being passed to the Authority and maintenance of the asset being neglected". He testified his principal reason for agreeing to the decision to cease engagement of the GPA in providing stevedoring labour was the potential exposure to liability of the GPA. In addition he considered it would be more efficient to have stevedores provide their own labour; it would overcome the lack of control of employees which the GPA had when providing its employees to third parties; and it would overcome the difficulty of the GPA not supervising or controlling the safety of employees working for the third party. He denied the alleged prohibited reasons were his reasons for making the relevant decisions.
(b) Compliance with State Government policy and Mr Charlton's objectives 327 Mr Burrows gave evidence that the main reason for his agreeing to the decision was in relation to the issue of supervision of employees. He then said implementation of State Government policy was an important matter and was part of the reason for making the relevant decisions. Mr Burrows gave evidence he agreed that an aim of the State Government in achieving direct employer-employee relations in order to guarantee continuity of service was 'a by-product of what we achieved or hoped to achieve He then agreed with counsel for the applicants that it was 'part of a reason for doing it' but qualified this answer by adding that it was 'not a major part'.
(c) Reduction in costs to users by avoidance of Award 328 Mr Burrows' evidence was that he agreed with the resolution that every effort should be made to reduce costs by reducing things like overtime and shift penalty rates.
(d) Need to reduce MUA influence 329 Mr Burrows' evidence was: "I think if we were to compare it to, say, the Patricks case, for instance, where there was apparently - and I'm no expert on the case - quite a loss of numbers of labour and therefore, I guess, union members, in this case I don't think that is necessarily the case." Mr Burrows' evidence was that whilst the MUA might see the decisions as leading to a loss of numbers and loss of members, this was not necessarily the right way to see it. That is, the alternative view was that union numbers may stay the same or increase. Mr Burrows was not asked whether a potential loss of union numbers had anything to do with his reasons for the decisions. 330 Mr Burrows was asked which of the "factors" operated on his mind. He testified the only points so operating were numbers 1, 3 and 4. These referred to "not a relevant business" for the GPA; management requirements and engagement in stevedoring distracts focus from primary mission of "trade facilitation". He said none of the other factors were in his mind.
(e) Adverse reaction from the Workforce 331 Mr Burrows stated that an adverse reaction was anticipated from the workforce if the GPA was going to exit the business of providing stevedoring labour. He did not give evidence concerning the reasons for his belief that this adverse reaction would follow.
(f) Finding of his reasons 332 Mr Burrow's evidence acknowledged that part of his reasons involved the implementation of State Government policy. On this basis his affidavit evidence cannot be accepted as a complete statement of his reasons. As State Government policy (for reasons given in relation to conspiracy) included the objectives of diminishing the influence of the MUA and the Award and the Agreement it follows that those objectives must have formed part of Mr Burrow's reasons, on his own evidence. Consequently his evidence does not negate the presumption of the presence of prohibited reasons.
Affidavit evidence 333 Mr Anderson deposed in substantially the same terms as Mr Burrows. Additionally, he added as specific reasons for cessation of stevedoring that provision of labour to stevedores in the Port was not part of the GPA's core business and maintenance was being neglected. He also denied the presence of the alleged prohibited reasons in his reasons. (a) Compliance with the State Government policy and Mr Charlton's objectives 334 Mr Anderson testified one of his reasons for agreeing to lease the BHF was to act in accordance with Mr Charlton's and the State Governments' commercialisation plans. He also testified part of the reasons was also to obtain continuity of service. He also agreed that as workplace agreements were part of the State Government's policy the GPA should provide them. He said the GPA had a duty to promote the Minister's policy provided it was sensible.
(c) Reduction in costs to users 335 Mr Anderson testified that one of the reasons why the GPA sought workplace agreements was because they would override whatever Award was applicable. He agreed that as workplace agreements were part of the State Government's policy, the GPA ought to try and deliver them. 336 The "Factors in Exiting Stevedoring" were put to Mr Anderson. He testified that some of the 17 "factors" were matters which he had taken into account in making his decision to support the exit from stevedoring. Mr Anderson considered the "ludicrous practices" would be better described as "over generous".
(d) Need to reduce MUA influence 337 Mr Anderson's evidence was that he agreed with Mr Charlton's objective to have less union influence in the Port.
(e) Finding on his reasons 338 On his own evidence Mr Anderson's affidavit evidence cannot be accepted as a full statement of his reasons. His other evidence established the presence of reasons relating to the implementation of State Government policy. Consequently, his evidence does not negate the presumed presence of prohibited reasons.
(a) Affidavit evidence 339 Mr Altham deposed to having had reasons in the same terms as Mr Anderson. He also denied the presence of any alleged prohibited reason in his reasons.
(b) Compliance with State Government policy and Mr Charlton's objectives 340 There is no evidence that Mr Altham made any decisions so as to comply with State Government policies.
(c) Reduction in costs to user avoiding the Awards 341 Mr Altham testified that one of his reasons was to achieve a reduction in costs. 342 Mr Altham also testified that was no reduction below what the Award allowed in respect of benefits to the MUA employees. He did not consider any reduction in costs in this way was a saving. However he testified it was not a reason. He considered reduction in costs was the result of the relevant decisions.
(d) Need to reduce MUA influence 343 Mr Altham's evidence was that there would be no lessening of union influence at the Geraldton Port because the MUA would represent the men on the Geraldton wharf even on the establishment of a direct employer/employee relationship. 344 In relation to this factor and the preceding factor Mr Altham was cross-examined on the "factors in exiting stevedoring". Of those listed above he agreed with factors 9, 11, 12. As to the "ludicrous practices" he considered that these were neither ludicrous nor over generous but were what was in the Award.
(e) Finding on his reasons 345 Mr Altham's oral testimony did not give rise to matters which made his affidavit evidence not creditable. In reliance on his affidavit evidence I consider that he has discharged the reverse onus of proof and it is not established that he held prohibited reasons.
(a) Affidavit evidence 346 Mr Halbert deposed in terms closely similar to those of Mr Anderson and Mr Altham.
(b) Compliance with State Government policy and Mr Charlton's objectives 347 Mr Halbert gave evidence that the GPA was in a position where it had to consider State Government policy and would take into account the Minister's request to abide by Government policy, provided the GPA considered it to be for the overall improvement of the Port.
(c) Reduction in costs to users by avoidance of Award 348 Mr Halbert testified he was not aware all the matters listed after the heading 'Ludicrous Practices' were in the Award. However he accepted that annual leave, sick leave, allowed days off and public holidays referred to in the list of such practices would be in the Award. He was not aware of the document containing these matters in February.
(d) Need to reduce MUA influence 349 Mr Halbert testified he recalled the "factors" document being presented to the Board. He said the factors listed would have been "considerations" for the Board, although they would not have been the only factors.
(e) Finding on his reasons 350 I do not consider Mr Halbert's primary evidence is shown to lack credibility. On his evidence the "factors" did not play a part as reasons. His evidence rebuts the presumption.
(17) Conclusion in relation to GPA 351 As I have found that three members of the GPA have not rebutted the presumption of the presence of prohibited reasons, it follows the GPA acted for the alleged prohibited reasons in making the relevant decisions and their implementation. 352 That however will not in itself create any unlawfulness unless the decisions so made and implemented were implemented by conduct which falls within s 298K(1). I have earlier held that the only conduct in that category was the threat to injure or prejudicially alter the position of the second applicants and the MUA employees by loss of overtime resulting from the prospect of transfer from irregular shiftwork to day work.
(18) Relief 353 The MUA employees are not a party to these proceedings so that no relief is pleaded on their behalf. Their inclusion in argument relating to breach of the WR Act would appear to have been necessary in connection with the claim in conspiracy. 354 In relation to the second applicants there is no basis for any award of damages, no loss having been experienced. 355 A form of order is proposed in the application in the following terms: "(a) that the first respondent: (i) continue to employ the second applicants to perform stevedoring work at the Port on the conditions prescribed by the Award and Agreement; (ii) allow the second applicants and the MUA employees (as defined in paragraph 28 of the further amended statement of claim) to undertake shift work and overtime work and to make them available for stevedoring work." I do not presently see any basis for making orders in respect of the MUA employees. However I consider that the position of the second applicants should be protected against the prejudicial alteration found. Whether that requires an order for continuance in stevedoring work of the second applicants on an irregular shift basis with eligibility for overtime without prejudice to redeployment on terms and conditions which do not injure them in their employment or prejudicially alter their position within the meaning of s 298K(1) is a matter for submission. The right should also be reserved for the GPA to make a further offer of voluntary redundancy. Counsel should be heard as to the form of these orders and whether these objectives can be achieved in ways other than that in the application. One difficulty to be addressed in submissions is that I do not consider the prejudicial alteration is presently quantifiable.
6.1 Pleadings 356 The statement of claim pleads that conduct of the GPA set out in pars 13 to 18 constitutes duress to enter Australian Workplace Agreements ("AWA's") upon the employers who would propose to tender for the provision of services under the RFP and upon employees who would seek to work for such employers including GSA in contravention of s 170 WG of the WR Act. 357 In the application, the applicants seek: (1) the imposition of a penalty upon the GPA under s 170VV of the WR Act and (2) injunctions directed to the GPA. 358 The only conduct of the GPA pleaded in paragraphs 13 to 18 of the statement of claim which arguably relates to the application of duress in relation to an AWA is: (i) In or about April and May 1998 the GPA distributed to the parties who had expressed an interest in undertaking the on ship bulk handling activities the RFP in relation to the provision of specific stevedoring and related cargo handling activities at the Port. The RFP required as a condition of a grant of a licence that the licensee propose and confirm that its workforce would be engaged on contracts of employment or workplace agreements under the WR Act or the WA Act to which only the employer and employee were parties. (ii) On or after 9 June 1998 the GPA required GSA to put in place an employee relations plan and to ensure the immediate execution of relevant agreements with the intention that GSA would only employ workers (including workers who undertake stevedoring work formerly undertaken by members of the IPLF) using workplace agreements. 359 The applicants have not pleaded any acts by the GPA which constituted the application of duress to any other 'employer who would propose to tender for the provision of services under the RFP'. There is no evidence of such conduct. 360 The applicants' case is, and is confined to, the allegation that the GPA applied duress to GSA in connection with an AWA in that the GPA required as a condition of a grant of a licence to operate the BHF that GSA engage its employees on AWA's. 361 I do not accept the submission for the GPA that the applicants have not pleaded any acts by the GSA which constituted the application of duress to the employees of the GSA. It is apparent from par 24 of the claim that it is alleged the conduct of the GPA (that is, its conduct in relation to the GSA) constitutes the application of duress upon the employees of GSA as well as upon the employer GSA.
6.2 Law 362 The claim for duress rests upon s 170WG of the WR Act which provides: "170WG (1) A person must not apply duress to an employer or employee in connection with an AWA or ancillary document." An "AWA" is defined to mean an Australian workplace agreement under Pt VID of the WR Act. 363 I accept the expression "in connection with" is broad in its scope. 364 I also accept that the unlawfulness provided for in s 170WG cannot be presumed to establish the concept of "duress". What is required is that the concept of "duress" is fulfilled to establish the unlawfulness. 365 While "duress" is not defined in the WR Act, it is a concept well understood in the law. The rationale of the doctrine of economic duress "is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party when the law regards that pressure as illegitimate": Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40 at 45 (per McHugh JA, with whom Samuels and Mahoney JJA agreed). 366 The rationale for section 170WG "is to ensure that processes that might lead to the making of an AWA occur in a way that ensures that free choice is exercised": Peter Schanka & Ors v Employment National (Administration) Pty Ltd (Moore J, Federal Court of Australia, 9 September 1998, unreported) at 12. 367 Duress, "like undue influence, focuses upon the effect of pressure, upon the quality of the consent or assent of the pressured party, rather than the quality of the conduct of the party against which relief is sought": Westpac v Cockerill (1998) 152 ALR 267 at 289 per Keifel J. While generally speaking the types of pressure considered to be illegitimate will involve unlawful threats or pressure that amounts to unconscionable conduct, the categories of conduct are "not closed" and "otherwise lawful conduct may in certain circumstances amount to illegitimate pressure": Crescendo Management Pty Ltd v Westpac Banking Corp at 46. 368 These general law propositions are applicable to section 170WG. It can be duress in relation to an AWA in contravention of section 170WG to refuse to deal with someone if they do not enter into an AWA with an employee or to not employ someone except on an AWA, or to threaten an existing employee with loss of employment if he or she does not enter into an AWA: Schanka. An enquiry into an allegation of duress for the purposes of section 170WG must involve a consideration of the "possible or probable impact of the conduct" of the party applying duress to the other party: Schanka at 12.
6.3 Evidence 369 The RFP to undertake the management and operation of the BHF which was distributed by the GPA in May 1998 stated: "Respondents will be required to clearly demonstrate that they will create a direct 'employer/employee relationship through Contracts of Employment or workplace agreements, State or Federal.' Respondents will be required to propose workplace practices to Contracts of Employment or workplace agreements, State or Federal, to which only the employer and employee are signatories, thereby establishing a direct 'employer/employee' relationship… Respondents are advised that this is a fundamental requirement of the RFP, and, ultimately, no lease will be granted to any respondent which fails to establish arrangements that are satisfactory to the GPA in this regard." 370 The applicants' case in this respect is said to be supported by evidence of Mr Brown of GSA. His firm had operated the BHF at the Geraldton Port for seven and half years. It had done so under a contract which at the time of the issue of the RFP was on a further extension of six months. 371 Mr Brown testified that the most important condition in the RFP for the tender to be successful was the requirement for the workplace agreement to be in place. He further understood that there was a requirement that a continuity of service clause be incorporated into the workplace agreement. He testified his attitude to meeting such a condition was: "I did not really have any big problem with it. I mean, it was part of the requirement for the tender process. I was prepared to fulfil that requirement." He gave this evidence on the basis that he was very anxious to be the successful applicant because he had been managing the operation for seven years and employed six people whom he would have had to put off if he had lost a portion of normal income. When asked whether he believed he had a choice he said "I certainly believed I had no choice". He also testified that had he not been faced with the condition imposed by the GPA he would not have required his employees to sign workplace agreements. He understood WPA's were being used more and more in industry. His understanding was that a WPA replaced an Award rather than overrode it. 372 As part of GSA's tender it submitted an employee relations management plan in which it was stated that future and present employees would be expected to abide by the individual workplace agreement that had verbally been agreed to by all present employees. A copy of the agreement was attached. 373 Mr Brown testified he had sought assistance in preparing the workplace agreement from Mr Gavin Treasure of the GPA. He was also offered the assistance of a Mr Clarke, an offer which he did not pursue. Having drafted a model workplace agreement he showed it to Mr Treasure who gave him advice on it. Mr Brown was left in no doubt that a workplace agreement was a condition of the tender document. He had not been told that he had a choice as to whether to sign up his employees to such an agreement or keep them under the existing conditions provided by the Award. This had been made clear to him in the early stages by Mr Treasure and Mr Durant as a requirement of the new tender. 374 Mr Treasure told Mr Brown that he should contact the Commissioner of Workplace Agreements and discuss the matter with him and the Commissioner would arrange the registration of it. 375 Having prepared the agreement Mr Brown submitted it to the Commissioner of Workplace Agreements who suggested a couple of minor changes which were made and the agreement was then submitted for registration. The workplace agreement was registered with the Commissioner for Workplace Agreements on 31 July 1998. The contract resulting from the tender was due to commence on 1 August 1998. Each of Mr Brown's employees executed workplace agreements prior to that date. 376 Approximately two or three weeks into the contract he became aware that the GPA had changed its view in relation to the necessity for a workplace agreement. He was told that by Mr Treasure. No reason was given. 377 Mr Durant did not dispute the evidence of Mr Brown. 378 For the applicants it is submitted that a Jones v Dunkel inference should be drawn because the GPA did not call Mr Treasure despite his prominent role in the relevant events. Such an inference could only be drawn when a matter arose which required an answer by Mr Treasure. Mr Durant accepted the account given by Mr Brown. There was no issue to be answered. The question which then arose was whether the conduct the subject of the evidence qualified as duress within the requirements of s 170WG of the WR Act. That was a legal question not an issue which required Mr Treasure to give evidence. Accordingly no Jones v Dunkel inference is appropriate in that respect.
6.4 Applicant's contentions 379 For the applicants it is contended the evidence establishes that the GPA, through its officers, Mr Durant and Mr Treasure, applied duress against both GSA and against GSA's employees. In reference to the officers of the GPA, the submission is supported by reference to s 349 of the WR Act. 380 It is also submitted the pressure applied went beyond acceptable commercial pressure in all the circumstances. It did not enable GSA and its employees to make a "free choice" about entering into a workplace agreement as required by s 170WG: Peter Schanka & Ors v Employment National (Administration) Pty Ltd [1998] FCA 1123. 381 It is said the conduct constitutes the type of "unconscionable conduct" to which McHugh JA referred in Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40. It is said the GPA knew the importance to GSA of being awarded the tender to continue to manage the BHF. Managing the BHF represented a significant aspect of GSA's business, which it had conducted for approximately seven and a half years.
(1) Non-applicability of the section 382 GSA is not an employer or employee of GPA. For the GPA it is submitted that a person does not contravene subs 170WG(1) by applying duress to a second person who is not in an employment relationship with the first person merely because the second person happens to be an employer or employee of some other person. It is submitted that if such a meaning was intended the subsection would not have used the term "employer or employee" but would have said simply "another person". Consequently it is said that any relevant conduct engaged in by the GPA in relation to GSA is not the application of duress "to an employer or employee". 383 It is said that interpretation is confirmed by s 170VB(2) which provides: "In relation to a proposed AWA or ancillary document, a reference to the employer or employee is a reference to the person who will be the employer or employee when the AWA or ancillary document starts to operate." It is additionally submitted that because subs 170WG(1) is a penalty provision the phrase "to an employer or employee" should be construed, if it is ambiguous, in the limited way contended for. 384 In my opinion a plain reading of subs 170WG(1) shows that the reference to "a person" is intended to be wider than the reference "to an employer or employee". The subsection is directed to the application of duress to an employer or employee. There is no reason in legal policy why the source of that duress should be limited to someone in an employment relationship with the person applying the duress. The relevant activity to which penalties are sought to be attached is the application of duress itself. I do not therefore accept that this argument is a reason for the non-application of the section.
(2) Pressure referable to State workplace agreements 385 For the GPA it is then submitted if it can be found from the above evidence that any pressure was applied by it to GSA to enter workplace agreements, the pressure was to enter State workplace agreements, not AWA's. 386 The Commissioner of Workplace Agreements referred to in the evidence of Mr Brown is an officer appointed under Pt 7 of the WA Act. It was he from whom Mr Brown sought advice and with whose office the workplace agreements were subsequently registered. 387 There is no evidence that there was ever any discussion between Mr Brown and anyone on behalf of the GPA in connection with an AWA, as distinct from a State workplace agreement. There is no evidence that any pressure of any sort was ever brought to bear on GSA in relation to an AWA. There is no evidence that an AWA was ever produced or drafted. No AWA or proposed AWA has been identified in the evidence. Consequently there was no "ancillary document" as that is defined in s 170VA, subject to the appearance of contrary intention, as a variation agreement, an extension agreement, a termination agreement or a termination notice all of which require an AWA to relate to. 388 I consider these submissions are correct. If there was duress it was not duress which attracted the application of s 170WG of the WR Act because it was not in the event made referable to an AWA.
(3) No pressure to enter AWA's 389 I accept the submission for the GPA that it did not require the GSA to enter into a particular form of arrangement with its employees. This is supported by a reference to the terms of the RFP and the evidence of discussions between Mr Brown of GSA and Mr Durant and Mr Treasure of the GPA. The ends sought were one of three alternatives: an AWA, a State agreement or contracts of employment. Two of these lie outside s 170WG. A choice was offered. It is true Mr Brown thought the options offered amounted to the same thing but the evidence negates any inference he was led to that view.
(4) Absence of illegitimate pressure 390 Next it is submitted for the GPA that it did not apply illegitimate pressure to the GSA in any event. 391 It is in the area of economic duress that the problem of drawing a line between legitimate and illegitimate pressure is particularly acute: see N C Seddon and M P Ellinghaus, Cheshire and Fifoot's Law of Contract (7th Australian edition, 1997) p 526‑530, pars 13.7‑13.9. This derives from recognition by the courts of realities of market play in the world of commerce. Ordinarily commercial pressure will not be illegitimate: Pao On v Lau Yiu Long [1980] AC 614. A threat not to enter into a future contract may not be illegitimate pressure: Deemcope Pty Ltd v Cantown Pty Ltd (1995) 2 VR 44 at 55-56. 392 The factor which supports a finding of illegitimacy in the conduct of the GPA (if it related to AWA's) is that Mr Brown (and therefore GSA) did not have a choice because he had a major investment in the continuation of the business of GSA. 393 Factors which support a finding of legitimacy in that conduct are (1) Mr Brown had "no big problem" with the requirement and was prepared to fulfil it; (2) there was no evidence from any of the employees who entered into the workforce agreements: cf Schanka at 294. (3) the means used were not coercive because the conduct allegedly constituting duress emanated from the statement in the RFP to which Mr Brown was free not to respond. 394 The issue is a difficult one. However, duress focuses upon the effect of pressure upon the quality of the consent or assent of the pressured party: Westpac v Cockerill at 289. Mr Brown's evidence was both that he was untroubled by the requirement and realised he had no choice. His response is relevant evidence but there is no evidence the GPA shaped the requirement to exploit a particular sensitivity of GSA: cf Cheshire and Fifoot, op cit p 529 par 13.9. The requirement in the RFP was of general application. 395 In those circumstances I would not make a finding of illegitimate pressure in the conduct of the GPA if it related to AWA's. Consequently duress would not be established so that the unlawfulness under s 170WG would not be established.
(5) Whether offer of employment via AWA necessarily constitutes duress 396 It is further submitted for the GPA that in any event on its proper construction s 170WG(1) does not prevent an employer from offering employment on the basis that the employee enter into an AWA. At the foundation of this submission is the concept that if there is an absence of choice in the offer that does not necessarily constitute duress. I am inclined to the view the section does not prevent an employer making such an offer but whether the section is contravened will depend upon the particular circumstances. 397 This is the view reflected in Item 11.99 of the explanatory memorandum upon the introduction of the section. In ASU v Electrix Pty Ltd Marshall J doubted that the subsection was accurately summarised in that memorandum and expressed no concluded view. 398 For the GPA it is submitted that the explanatory memorandum is consistent in its terms with the authorities to the effect that a threat not to enter into a future contract is not duress. However, that submission requires consideration in relation to the effects of s 170VB(2) which builds the notion of future employer or employee status into the concept of an AWA. 399 As it is not necessary to do so, I reach no concluded view on this issue of statutory construction.
7.1 Pleadings 400 Paragraph 27 of the claim states the GPA has contravened s 71 of the Workplace Agreements Act 1993 (WA) ("the WA Act"). Aside from citing that section in par 22 the pleadings are barren of further particulars.
7.2 Legal requirements 401 Section 71 of the WA Act provides: "71. (1) A person must not - (p) (a)in the course of carrying on any trade or business refuse to deal with or threaten to refuse to deal with an employer on the ground that - (i) the employer is, or is not, a party to a workplace agreement with the employer's employees; or (ii) a workplace agreement between the employer and the employer's employees contains, or does not contain, any particular provision; or (q) (b)cause, encourage, or procure another person to do anything that contravenes paragraph (a). (2) For the purposes of subsection (1) references to refusing to deal with an employer mean - (r) (a)refusing to make use of, or refusing to agree to make use of, any service offered by the employer; (s) (b)… (t) (c)… " 402 "Workplace Agreement" is defined in s 3 of the WA Act as an agreement of the kind described in s 5 of that Act. Section 5, in turn, provides that "workplace agreements" are agreements - (u) "(a) made between employers and employees; and (v) (w) (b) providing for some or all of the rights and obligations that employers and employees have in relation to one another, including rights and obligations that are to take effect after termination of employment." 403 A prosecution in respect of an offence alleged under s 71 may be brought by, in addition to a person authorised by the Minister, a person who has made a complaint of the offence and where the Court is satisfied the complainant has been affected by the conduct complained of. No unlawfulness will be established until an offence is established beyond reasonable doubt. Under s 65 of the WA Act any person may seek an injunction in respect of an alleged breach under the section.
7.3 Applicants' contentions 404 The case against the GPA is based on an actual refusal to deal and a threat of refusal to deal. Furthermore the case is based on a refusal "to make use of, or refusing to agree to make use of, any service offered by the employer": s 71(2)(a). 405 For the applicants it is contended the Court should draw an inference that the GPA required the GSA to enter into a workplace agreement within the meaning of the WA Act as a consequence of the terms of the RFP. 406 It is submitted the GPA refused (contrary to s 71(i)(a)(ii)) to deal with the GSA, in the sense of refusing to make use of GSA's services in managing the BHF, until such time as it became a party to a workplace agreement with its employees and that this was a contravention of s 71(1)(a)(i) of the WA Act.
7.4 Evidence 407 The relevant evidence has been set out in relation to duress.
7.5 Legal issues 408 This matter was reserved for decision and submissions were received prior to the decision of the High Court in Re Wakim; Ex parte McNally [1999] HCA 27. It is apparent from that decision that this Court is not vested with any jurisdiction in respect of the WA Act. 409 Even if that were not the case the Court would have no jurisdiction to find an unlawfulness pursuant to the WA Act in the absence of a prosecution finding beyond reasonable doubt an offence was established. The obligation on a court under s 65 to establish the conditions for an issue of an injunction involve only a judgment that conduct "amounts to, or would amount to, a breach of s 71". That would not establish an actual unlawfulness and would involve the application of the tests appropriate to the issue of an injunction rather than the criminal standard of proof necessary to establish unlawfulness. 410 No submissions were received by the Court in respect of whether in issuing the RFP the GPA was acting "in the course of carrying on any trade or business".
7.6 Absence of refusal to deal 411 The GPA did not refuse to deal with GSA. GSA accepted the invitation. At no time did GSA indicate that it did not wish to have workplace agreements with its employees or that it wished to take the BHF lease from the GPA but not to make workplace agreements with its employees. GSA never proposed or requested that it take the lease from the GPA but not make workplace agreements with its employees. The point was not reached where the GPA declared a tender from GSA to be non‑conforming or omitted. 412 The residual question is whether the terms of the RFP by the GPA in itself constituted a threat to refuse to deal with the GSA by refusing to agree to make use of a service offered by it unless a workplace agreement was made a requirement of the new tender. In my view the terms of RFP would arguably constitute such a threat. However, for the reasons previously given, this Court cannot make a finding of unlawfulness in that respect.
7.7 Option to choose other agreements 413 The second response made for the GPA in relation to s 71 of the WA Act is that the RFP did not require the lessee to enter a State workplace agreement. It required, as previously set out, respondents "to propose workplace practices through contracts of employment or workplace agreements State or Federal". The result was that the GSA as an employer considering tendering was free to meet the GPA's requirements through a choice of mechanisms - a State workplace agreement, a Federal workplace agreement or some other contractual arrangement that met the GPA's employment requirements. 414 For the GPA it is submitted that it did not refuse or threaten to refuse to give the BHF lease to GSA unless it entered into State workplace agreements because the GSA could have chosen to sign up its employees on an AWA or a contract of employment. This submission has not been answered in reply for the applicants. 415 For these reasons I consider that nothing arises to assist the applicants' case from a consideration of s 71 of the WA Act.
8.1 Pleadings 416 By par 14 of statement of claim the applicants allege that from about September 1997, the GPA, Mr Charlton and Mr Criddle wrongfully conspired to injure the applicants by unlawful means. This is particularised as: "The first, third and fourth respondents agreed to restructure the terms and conditions under which stevedoring employees generally would work at the Port, whereby the positions of the second applications would be altered to their prejudice and the second applicants would be injured in their employment and the first applicant would be injured by reducing its membership and its role." 417 Paragraph 15 pleads the overt acts said to have been done in pursuance of the conspiracy from 16 October 1997. A large number of the overt acts pleaded are documents set out previously in the chronology and marked with an asterisk. 418 Paragraph 16 pleads that the conspiracy "was entered into for the purpose of injuring the applicants". It was particularised in the following terms: "The purpose of the conspiracy was to achieve a position where stevedoring services were provided at the Port of Geraldton by persons in employment arrangements which involved a direct employer-employee relationship, which did not involve the MUA as a party so that the MUA had no, or no significant, role in protecting or enhancing the interests of its members. Its purpose was also to remove or hinder the ability of the Employees to negotiate collectively and to reduce their conditions of employment and diminish their employment security." 419 The statement of claim further alleges that certain of the overt acts identified in par 17(a) were unlawful because they were done for reasons prohibited by s 298K of the WR Act; and that those alleged in par 17(c) were unlawful because they involved or constituted a contravention of s 71 of the Workplace Agreements Act (WA) and/or a contravention of s 170WG of the WR Act. The prohibited reasons pleaded were those in s 298L(a) and (h) of the WR Act. 420 Paragraph 18 pleads that the applicants have suffered, and will suffer, injury, loss and damage by reason of the conspiracy. The MUA claims to have lost subscription income and suffered diminishment in its standing. The second applicants claim to have lost the opportunity to undertake stevedoring work as employees of the GPA and been forced to accept alternative employment on less favourable terms.
8.2 Legal requirements 421 To establish the tortious conspiracy pleaded by the applicants, it is for the applicants to prove the following matters. (a) each of the alleged three co-conspirators were a party to an agreement or combination with either of the other two co-conspirators. (b) the purpose of that agreement or combination was to injure the applicants by unlawful means. (c) the agreement or combination was carried into effect by the commission of agreed unlawful acts. (d) those unlawful acts caused damage to the applicants. (See, generally, Clerk & Lindsell on Torts (17th Ed, London, 1995) at pars 23‑76 to 23‑90; Trindade & Cane, The Law of Torts in Australia (2nd Ed, Melbourne, 1993) at pps 222‑231; and Fleming, The Law of Torts (9th Ed, Sydney, 1998) at pp 771-777).
(1) Agreement or Combination 422 The nature of conspiracy was addressed by the High Court in Ahern at 93 as follows: "Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence." On the method of proof appropriate for a conspiracy the Court said (also at 93): "This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement." The Court supported this by the following reference: "Thus it was said in Tripodi ((1961) 104 CLR at p 6) that proof of the crime of conspiracy "may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment". For example, it may be possible in a case of conspiracy to commit armed robbery to conclude from the fact that one accused wearing a disguise was present in a bank at the same time as another accused, similarly disguised, was waiting outside the bank in a motor vehicle with the motor running, that both were engaged in a common enterprise to rob the bank. For the purpose of reaching that conclusion it is permissible to use the acts and declarations of each, even in the absence of the other, not as proof of the truth of any assertion or implied assertion of the participation of the other, but as facts from which the combination might be inferred." This was further supported by reference to the Coal-Vend case as follows (at 94): "It was such a situation that Isaacs J had in mind in R and Attorney-General (Cth) v Associated Northern Collieries ("the Coal-Vend Case") ((1911) 14 CLR 387) when he pointed out that both the fact of combination and the participation of the participants may be proved by the same evidence. He said ((1911) 14 CLR at p 400): '…though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.' 423 The word "combination" is defined in the New Shorter Oxford English Dictionary at p 445 to include the meaning "the association of people for a common (formerly usually illegal) purpose". 424 Of the concept of "combination" Clerk and Lindsell on Torts (op cit at par 23-78) state: "Of the various words used to describe a conspiracy, "combination" has been preferred on the grounds that "agreement" might be thought to require some agreement of a contractual kind, whereas all that is needed is a combination and common intention. - Buckley LJ in Belmont Finance Corpn v Williams Furniture Ltd (No 2) [1980] 1 All ER 393 at 404; cf Viscount Simon and Lord Wright in Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 439-440 and 461. But judicial description still speak of "concerted action taken pursuant to agreement" per Lord Diplock in Lonrho Ltd v Shell Petroleum Co. Ltd [1982] AC 173 at 188, cf Lonrho plc v Fayed [1992] 1 AC 448 at 462-465, per Lord Bridge. A party to a conspiracy need not understand the legal effect of it: but he must know the facts on which the combination is unlawful. Belmont Finance Corpn v Williams Furniture Ltd [1979] Ch 250 at 261 and 271; Prichard v Briggs [1980] Ch 338 at 414 and 424; applying Churchill v Walton (No 2) [1976] 2 AC 224, per Viscount Dilhorne at 237. But there must be a combination; lack of overt acts or an uncommunicated intention to join a conspiracy may show there has not been an effective combination. Marrinan v Vibart [1963] 1 QB 234 at 238-239; Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 439, 461 and 510; Midland Bank Trust Co Ltd v Green (No 3) [1979] Ch 496 at 524; affirmed [1982] Ch 529, CA; cf Atlantic Sugar Co Ltd v Att.-Gen Canada (1981) 115 DLR (3d) 21 (tacit intent not enough); and on "overt acts": Galland v Mineral Underwriters Ltd [1977 WAR 116." Other relevant issues were addressed in a further paragraph in the same text at 23-79: "The conspirators need not all join in at the same time, nor need they have exactly the same aim in mind; but the possession of a separate aim may be evidence that the party concerned has not participated in the combination at all, at any rate if he acted throughout in ignorance of the true facts. The question is how far the defendant was aware of the plan and then "joined in execution" of it. A person may be a party to a combination to use unlawful means, even though he himself cannot commit the unlawful acts in question, for example a person who joins parties to a contract in threats that they will break that contract, thereby constituting a conspiracy to intimidate. On the other hand, persons who participated in meetings which formed part of the combination but who played no active role will not be parties to the conspiracy. The question is whether a particular defendant, having regard to his knowledge, utterances and actions, was sufficiently a party to the combination and the common design." (Footnotes not cited) 425 It follows that in examining the evidence of the actions of each particular respondent as to knowledge, utterance and actions it is necessary to find whether it is established that each or any two of the respondents formed the common purpose based on knowledge of the facts on which the combination was unlawful. Essentially, on the applicants' case, this means finding whether any such respondents shared the common purpose to implement government policy, it being the applicants' case that the government policy necessarily involved unlawful harm to the second applicants.
(2) Unlawful Act 426 For the purposes of civil conspiracy by unlawful means, the 'unlawfulness' may be a tort or an activity constituting a breach of statute: Williams v Hursey (1959) 103 CLR 30 at 76-9 per Fullagar J and 104-8 per Taylor J; Coal Miners Industrial Union of Western Australia, Collie v True (1959) 33 ALJR 224.
(3) Intention to injure 427 For the applicants it is contended that it is well established that it is unnecessary for specific intent to be proved where a conspiracy involves unlawful acts or unlawful means. For that proposition the applicant's case relies primarily upon the decision in Williams v Hursey and particularly the statement by Fullagar J at 78. 428 The case was one of unlawful means conspiracy, the unlawful means consisting of a breach of section 44 of the Stevedoring Industry Act 1956 (Cth). The section prohibited a person from preventing, hindering or persuading another person by violence from working as a waterside worker. 429 In an oft-cited judgement, Fullagar J at 78 described the cause of action as "a combination to do unlawful acts necessarily involving injury" (emphasis added). Dixon CJ (at 45) and Kitto J (at 86) agreed with the judgment of Fullagar J. 430 Taylor J considered that it was sufficient to establish an actionable wrong in a case of unlawful means conspiracy for the plaintiff to establish that he or she "had suffered damage as the result of the unlawful acts of the defendants … performed in furtherance of a common agreement" (at 108). Menzies J (at 122-3) considered that it was: "quite clear that an agreement to do something, either as an end or as a means to an end, it being something that would, if it were done by an individual, be a criminal offence, is a tortious conspiracy if another suffers damage by reason of action pursuant to the agreement. The same it seems is true if the agreement is to do something which, if done by an individual, would be a tort …" 431 The High Court had earlier considered the tort of conspiracy in McKernan v Fraser (1931) 46 CLR 343. Gavin Duffy CJ and Starke J accepted the authority of Sorrell v Smith [1925] AC 700 at 724 that "in an action against a set or persons in combination, a conspiracy to injure, followed by actual injury, will have a good cause for action, and motive or intent when the act itself is not illegal is of the essence of the conspiracy". See also the discussion by Dixon J at 359-362 and by Evatt J at 404-411. See also O'Brien v Dawson (1942) 66 CLR 18 at 26-27, and 41-42. In Cox v Journeaux (No 2) (1935) 52 CLR 712 at 717 Dixon J said: "To succeed in an action for conspiracy to injure where there is no illegality actual or threatened in the end in view or the means adopted by the defendants, a plaintiff must establish that, in combining, the defendants were animated by a desire to harm him." This statement admits that where the conspiracy is for an unlawful purpose that may be manifest "in the end in view or the means of adopted by the defendants". 432 For the applicants it is contended that in recent years a number of cases decided by both the State Supreme Courts and the Federal Court have considered and applied the law in accordance with the understanding which the applicants have of what was decided by the High Court of Australia in Williams v Hursey. It is necessary therefore to go to the chain of authority which followed that decision. 433 In Latham v Singleton [1981] 2 NSWLR 843 Nagle CJ at CL, although referring to Williams v Hursey, accepted in his resolution of a claim of a tort of unlawful conspiracy that it was necessary to consider the necessary ingredient of the intent to harm the plaintiff. As to this he said at 872: "in considering the proof or absence of this element, it is not to be confused with any inquiry about what secondary objects were hoped to be attained. Certainly the element must be the predominant object of the actor. A certain result foreseen but not aimed at is not enough." The headnote to the report wrongly states his Honour's reasoning in that respect. 434 In Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 at 687 Brooking J said the following in relation to a claim of unlawful conspiracy: "One concession made by Mr Bongiorno will somewhat shorten these reasons. While reserving his right to challenge the decision in a higher court, he accepts that I must, having regard to Williams v Hursey, accept that in the case of an unlawful means conspiracy it is unnecessary to prove that there was a predominant intention to injure. He accepts that the motive for combining is irrelevant as long as the defendants combine with the intention of pursuing an unlawful object or employing unlawful means in the pursuit of their object. A good deal of discussion of authority is thus rendered unnecessary." For Mr Charlton it is submitted that all that this passage records is a concession of senior counsel in relation to proof of a predominant intention which is said to be not inconsistent with there being a need to prove the requisite intention to injure. 435 The House of Lords in Lonrho PLC v Fayed [1992] 1 AC 448 held that in an action for conspiracy to injure by unlawful means it was unnecessary for the plaintiff to prove the intention on the part of the defendant to injure the plaintiff was the "predominant purpose" of his alleged unlawful action. It was sufficient to show the defendant had an intention to injure the plaintiff by the alleged unlawful act. That distinguished unlawful conspiracy from lawful conspiracy where it was necessary for the plaintiff to prove not merely that there was an intention to injure the plaintiff but also that injury to the plaintiff, rather than advancement of the defendant's own interests, was the predominant purpose of the conspiracy. 436 Understood in this context the concession made by counsel in the Ansett case and the reference by Brooking J to predominant intention is not to be understood as a concession requiring the absence of proof of an intention. 437 The decision of the House of Lords was followed by the decision in Goodchild Fuel Distributors Pty Ltd v Holman (1992) 59 SASR 454. There White ACJ said at 481: "In Australia it is not necessary for the plaintiff to prove that the dominant purpose of the concerted tortious conduct is to cause harm to the victim. It suffices to prove that harm is the natural and reasonable result of the tortious (unlawful) conduct." The latter portion of the statement by White ACJ was doubted by Windeyer J in Womboin Pty Ltd v Reichelt (unreported, New South Wales Supreme Court, 25 August 1995). In its terms what was said by White ACJ in the former portion of the passage quoted was referable solely to dominant purpose and is consistent with the decision of the House of Lords in Lonrho. Windeyer J was also of the view that a combination to do an unlawful act as a means to an end being injury to the plaintiff was the tort of conspiracy to injure and must therefore require some intent or conduct directed at the plaintiff. 438 In Beach Petroleum NL v Johnson (1993) 43 FCR 1 von Doussa J considered a claim of unlawful conspiracy based on breaches of directors' common law and statutory duties. He said (at 19): "As the alleged conspiracy is one involving unlawful means, it is sufficient merely for the applicants to prove that the combination of the defendants to do one or more of [the] unlawful acts resulted in damage to them. It is not necessary for the applicants to further prove that the predominant purpose of the conspirators was an intention to injure the applicants: Lonrho PLC v Fayed [1992] 1 AC 448; Williams v Hursey (1959) 103 CLR 30." The citation of Lonrho makes apparent that this passage is to be understood with reference to the predominancy of the purpose and not the necessity of proof of intention to harm as a necessary element in the tort of unlawful conspiracy. 439 In Northern Territory v Mengel (1996) 185 CLR 307 at 342 the High Court said in relation to the tort of conspiracy that it required an intention to cause economic harm. Cited in support were Quinn v Leathem [1901] AC 495; Williams v Hursey; and McKernan v Fraser. The High Court therefore did not consider that Williams v Hursey was authority for the view that in the case of an unlawful conspiracy it was unnecessary to prove intention to harm. 440 The necessity for a pleading of intention to injure formed part of the reasoning of Drummond J in Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR at 150 where he said: "The requirement that a plaintiff claiming damages for [unlawful] conspiracy must plead overt acts evidencing not just an agreement to commit an unlawful act but an agreement made with an intention to injure the plaintiff is no mere technical requirement: it is an essential element of the second form of conspiracy, as the applicant now acknowledges, that the agreement to commit the unlawful act be made with an intention to injure the plaintiff (even though that need not be the conspirators' predominant intention for combining)." 441 The applicants also place reliance upon Coomera Resort Pty Ltd v Kolback Securities Ltd [1998] QSC 20 (unreported, Supreme Court of Queensland, McKenzie J, 20 February 1998). I accept the submissions for Mr Charlton that the proper understanding of what was there said by his Honour was that he was not prepared to strike out the statement of claim by reason of a failure to plead an intention to injure but he nevertheless regarded that as a required element of the tort. The case concerned the pleading point. 442 It follows I do not accept the submissions for the applicants that as a matter of law flowing from what was said by Fullagar J in Williams v Hursey at 78 it is sufficient for them to establish that the acts of the conspirators necessarily involved injury to the applicant and that the applicant was a person reasonably within the contemplation of the conspirators as a person likely to suffer damage. In my view the statement by Fullagar J in Williams v Hursey is to be understood in the context in which it arose. That context was of a group deliberately forming an unlawful picket line so as to prevent the plaintiffs from getting to work and so earning their living. The acts were such that the intention to harm followed necessarily from them.
(4) Whether intention to harm can be inferred from nature of unlawful means 443 It follows that the nature of the offence which conspirators agree to commit and the facts of a particular case may inevitably lead to the conclusion that it was intended to cause damage to a particular person: cf Coomera Resort Pty Ltd at [31]. A court may be able to infer the relevant intention "where conduct is aimed or directed at the plaintiff and damage to the plaintiff is the obvious result of such conduct": Womboin at [58]. Those will be circumstances where, like Williams v Hursey, the intention to harm is plainly implicit in the nature of the unlawfulness. 444 In my opinion, it is arguable the nature of the unlawfulness alleged by the present applicants is such as could give rise to a finding of such implicit intention. The case is that the respondents shared the common purpose of implementing State Government policy which necessarily occasioned breach of the WR Act and injury contrary to that Act. If it is established the respondents so combined and participated it could follow they had an intention to injure. That would not be because the law does not require proof of an intention to injure but because the nature of unlawfulness comprising the common purpose necessarily involved such an injury.
(5) Loss and damage 445 Proof of damage is necessary to establish the tort.
8.3 Ahern principle 446 Once there is evidence that establishes that two or more persons are bound together in the pursuit of an unlawful object (or the pursuit of a lawful object by unlawful means), "anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others": Ahern v The Queen (1988) 165 CLR 87 at 95 (Mason CJ, Wilson, Deane, Dawson and Toohey JJ). 447 The reason for so admitting the evidence of the acts or words of one co-conspirator against another in cases of criminal conspiracy is that "the combination or pre-concert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others": Tripodi v The Queen (1961) 104 CLR 1 at 7 (Dixon CJ, Fullagar, Windeyer JJ). 448 The evidence so led is not led to prove against the others the truth of any assertion or implied assertion made by the maker of the statement, but to prove either the fact of the combination or the participation of the participants or both. Accordingly, the evidence will not offend the rule against the admission of hearsay evidence: Ahern at 93‑4. 449 Although Ahern and Tripodi both concerned criminal conspiracies, the principles espoused in them are equally applicable to cases of civil conspiracy: Beach Petroleum NL v Johnson (1993) 115 ALR 411 at 436; Coomera Resort P/L v Kolback Securities & Ors. 450 The High Court held that there are three conditions that must be satisfied before evidence in the form of acts done or words uttered outside a person's presence by another person who is alleged to be a co-conspirator will be admissible to prove the first person's participation in the conspiracy. The conditions are: (1) there is a combination of the type alleged; (2) the acts were done or the words were uttered by a participant in furtherance of its common purpose; and (3) there is "reasonable evidence", apart from the acts or words, that the defendant was also a participant: Ahern v The Queen (1988) 165 CLR 87 at 100. 451 The Court doubted whether there is any difference between the expression 'reasonable evidence' and a 'prima facie case' but preferred the former as it achieves the aim which is to limit "the use which might be made of a co-conspirator's acts or declarations …when its admission might operate unfairly against an accused" (at 100); see also Milandinovic v The Queen (1993) 47 FCR 190 at 193.
Whether a combination 452 The applicants' submission states: "The common purpose of the respondents was as follows: 1. That the GPA pursue agreed action which necessarily involved the GPA breaching the provisions of the Workplace Relations Act 1996; 2. That the agreed action of the GPA would produce injury to the MUA and/or the members of the IPLF employed by the GPA." It is said the prejudice and alteration of the position of the employees of the GPA is said to have been undertaken for the prohibited reasons that they were members of the MUA and they were entitled to the benefit of the Award or the Agreement. Also it alleged it was undertaken for the purpose of reducing the power and influence of the Union and undermining the conditions established by the Award and Agreement and thus reducing costs by reducing payments and benefits to employees. Those simple propositions, it is argued, establish an unlawful act, namely breach of s 298K of the WR Act, for which relief is sought. It is said the agreement between the GPA and Mr Charlton and Mr Criddle establishes along with the unlawful act, an actionable conspiracy, a conspiracy the completion of which has been prevented as a result of these proceedings and from which the applicants seek relief. When these submissions refer to "an agreement" I read them as including reference to a combination of the character which establishes a conspiracy. 453 The evidence relied upon by the applicants to establish the requisite common purpose is set out in sections E and F of the applicant's written submissions (read in the context of sections G & I). The factual statements there appearing were not contradicted on behalf of the respondents although the conclusions from those facts are in high contest. The statements appearing in sections E and F include on occasion reference to documents the subject of an Ahern objection and I have ignored those documents in considering whether there is evidence of a common purpose. The case for the applicants relies on the nature and content of the communications between the alleged conspirators rather than the fact or frequency of communications. 454 I find as follows from that evidence and those submissions: (1) In November 1995 the State Government issued the document entitled "The Role of Ports in Western Australia". In it Mr Charlton stated "This Government has been committed to having port authorities pursue a role of trade facilitation by operating in a commercial and efficient manner". The document stated under a heading "Focus on User Charges" that "at the core of this role is a pre‑eminent attention to the cost and quality of services provided." Under the heading "Statements of Corporate Intent" the report stated that: "To provide port authorities with a focus and framework to fulfil their role in facilitating trade there is a need to develop an agreement between the port authorities and the Minister, as the representative of the Government, on the future direction, objectives, targets and performance indicators for each port authority". Under a heading "Support Needed From Government" the document stated: "while there are many improvements that port authorities can make within the existing framework, support from Government in some key areas will greatly enhance the port authorities' ability to improve their commercial performance". It is the submission for the applicants that the inevitable consequence of the application of these policies by the GPA would result in breaches of the WR Act in that it would produce injury to the applicants. (2) Mr Charlton and subsequently Mr Criddle held the following views concerning the State policy. The need for the policy of reform was based on the perception that Australian ports were unreliable, inefficient and costly. What was required was reliability, meaning no industrial disputation, so that there would be continuity of service. Unreliability was the result of the actions of the MUA. The introduction of a continuity of service provision into the workplace of ports could only come about through a direct employer/employee relationship. To achieve the goal of reduction in user charges it was necessary to eradicate work practices which loaded excessive additional costs onto port users. This involved, firstly, removal of inflexible work practices which inhibited such reduction. Secondly, it involved a downsizing of the workforce by port authorities and to this end a proposal was submitted to the Federal Government seeking an agreement for access to the redundancy program for Western Australian regional ports. (3) The above views were conveyed from time to time by each of the Ministers in writing to port authorities including the GPA. In addition, they were communicated in occasional visits to the GPA; by conversation with Mr Durant and through visits of the Minister's staff or communications with them. In addition, the Ministers each stated their views publicly and these were circulated to the GPA. (4) It was the view of Mr Charlton with which Mr Criddle subsequently agreed, that the State Government objectives of reliability, reduced cost to user, flexible work practices and downsizing of the labour force could only be achieved by reducing the influence of the MUA and the Award and Agreement. 455 This was not stated expressly in government documents or correspondence. It arises as a matter of inference from the testimony and effect of the documents relied upon in the applicants' submission to this end. In reaching that conclusion I do not accept the applicants' submission that the need for contingency plans following the making of the relevant decisions illustrates the recognition by Mr Charlton and the GPA that the objectives being pursued would have had that effect because they would be likely to lead to industrial unrest. Other reasons for the belief that there may be industrial unrest are open to inference. 456 This finding is not affected by further testimony from Mr Charlton that there was no objective of removing the power and influence of the MUA in the negotiation of terms and conditions of stevedores. (5) The members of the GPA were aware of and understood the State Government's policy and the objectives of Mr Charlton and Mr Criddle to achieve reliability at the Port through continuity of service and direct employer/employee relations. I base this finding on the testimony of Mr Anderson, Mr Halbert and Mr Ramage in the context of the evidence of Mr Charlton and Mr Criddle as well as Mr Durant. (6) The members of the GPA and Mr Durant also understood the objectives of Mr Charlton and Mr Criddle and the State Government's policy concerning the objective of seeking reduced costs to users. There was evidence from Mr Anderson and Mr Ramage which directly supports this finding. Mr Burrows was aware of Mr Charlton's wish that the restructure addressed the issue of loaded excessive additional costs. Mr Altham understood that reduction of costs was one of the GPA's aims in the restructure process. The finding is supported by reference to the evidence of Mr Durant on this issue. (7) The GPA understood the policy of the State Government and Mr Charlton and Mr Criddle's objectives in seeking to reduce the perceived dominance and influence of the MUA. The evidence relied upon in the applicants' case establishes this proposition. Although Mr Altham in particular made no acknowledgment of this knowledge there is evidence, particularly from Mr Durant, that all members of the GPA were informed of this ministerial objective. In reaching this conclusion I place no reliance upon the memorandum given to Mr Durant by his human resources manager, Mr Clarke, in June 1998, which has been ruled as not admissible for the truth of its contents. (8) The evidence shows that those directing the GPA shared the Minister's views concerning change in the Port and agreed to act on them. I do not agree with the submission for the applicants that the evidence shows that the members of the GPA "were intent on complying" with Mr Charlton's wishes. The submissions better express it in stating that the evidence discloses the members of the GPA and the General Manager acted in accordance with Mr Charlton's wishes because they agreed with the objectives he was wanting them to pursue. The evidence establishes that Messrs Burrows, Anderson and Halbert accepted that they had to consider State Government policy and apply it where they were able for the overall improvement of the Port. Mr Altham supported the State Government's policy objectives. Mr Ramage's guarded testimony enables no conclusive finding on this point on his state of mind.
Was conduct in parallel or combination? 457 In the light of these findings the question arises whether the conduct of the GPA in relation to State Government policy and ministerial objectives constituted merely conduct "in parallel" or whether it had about it "such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of a pre-concert, or some mutual contemporaneous engagement, or … were themselves the manifestations of mutual consent to carry out a common purpose …": the Coal-Vend case at p.400. 458 A difficulty for judgment on this question arises from the close relationship between the Minister and the GPA deriving from the statutory environment in which the GPA operated. See in particular s 7 of the Functions Act which is the genesis of a close working relationship between the Minister of the day and the GPA. As the submissions for the GPA state: "[I]t must be first recognised that there is a busy pre-existing, lawful and bona fide relationship requiring frequent ongoing contact, communication and direction between all these parties. It is perfectly proper and only to be expected that a Cabinet Minister of the Crown would routinely communicate the policies of a Government to the Government's Crown agents. It is also completely unremarkable that a Crown agent would assiduously seek to be kept informed of, and endeavour to conform with, communicated Government policy. That flows naturally from the existence of a legal relationship under the laws of agency, ie Principal (the State) and Agent (the GPA)." The character and duties of the alleged conspirators as servants or agents of the Crown makes it entirely natural and proper that there would be communication between them and that the GPA would enquire about relevant government policy and act to implement that policy subject to formation of its own views. On the other hand, those circumstances create the conditions in which a finding of combination is made more probable. 459 In addition it was the stated objective of the State Government policy "to develop an agreement between the port authorities and Minister" in relation to future development of ports. It was envisaged both by the policy and, on the evidence, by Mr Charlton and Mr Criddle that the GPA would give effect to State Government policy. 460 The question then becomes what evidence there is of the GPA manifesting its agreement to implement State Government policy. The evidence relating to the conduct of Mr Durant makes apparent he was doing his best on behalf of the GPA to ensure that the steps taken by it were an implementation of ministerial objectives so that when the GPA resolved upon a particular course it was known that it had ministerial approval. 461 I do not agree with the submission for the applicants that the evidence shows the members of the GPA "were intent on complying" with Mr Charlton's wishes. Those submissions better express it in my view in stating that the evidence discloses the members of the GPA and the General Manager agreed with the objectives Mr Charlton was wanting them to pursue and therefore acted in accordance with them. 462 There remains the difficult question whether this constitutes possession of parallel purposes or amounts to a combination. In my opinion the better view of the course of the evidence is that as a consequence of the close working relationships between the ministers and the GPA and the objectives of the State Government policy to work in agreement with port authorities, the point had been reached where there was in respect of the GPA a community of purpose with the Minister on the question of port reform. The circumstantial evidence proves a commonality of purpose and high level of communication between the respondents, the nature and content of which manifested an intention by each respondent to the other of the will to carry out the common purpose.
What was the common purpose? 463 The common purpose as contained in par 16 of the claim is set out above. It was to implement the State Government policy on port reform. It follows from the findings to date that I accept that it was part of the common purpose to achieve a position where stevedoring services at the port involved a direct employer/employee relationship not involving the MUA as a party. 464 In my view the evidence does not support a finding that it was part of the common purpose to remove or hinder the ability of the second applicants to negotiate collectively and to reduce their conditions of employment and diminish their employment security. 465 For the applicants it is contended that the inevitable consequence of the GPA having the common purpose of implementing the State Government policy is that there would be a reduction in the terms of employment and conditions of employment and diminishment in employment security for the second applicants and for that reason the common purpose should be seen to have encompassed those objectives. My view is that this is not the case. 466 Examination of the State Government policy discloses that it does not in its terms necessarily require any reduction in conditions of employment of the second applicants when applied to the Geraldton Port or otherwise. It was the decision of the GPA as to how it implemented that policy. It is not open on the evidence that a necessary concomitant of the willingness of the GPA to implement State Government policy would be a reduction in the conditions of employment of the second applicants. Likewise it was no necessary concomitant of the policy that the second applicants when subject to it would be hindered in their ability to negotiate collectively or that their employment security would be diminished. In my opinion it is not established that this aspect of the pleaded purpose formed part of the common purpose.
Was the common purpose one involving unlawful means? 467 It is important to recall what has been set out above, namely that "a party to a conspiracy need not understand the legal effect of it: but he must know the facts on which the combination is unlawful": Clerk and Lindsell on Torts op cit. It is not therefore a case of finding whether the members of the GPA were aware of proposed unlawful conduct but rather whether they were aware of the conduct which it is alleged was unlawful. 468 The applicants have pressed their case on the basis of an unlawful means conspiracy. I take this to mean that the unlawfulness is bound up in and forms part of the common purpose. That understanding is supported by the fact that the applicants seek a finding that the intention to harm is implicit in the nature of the unlawful means forming part of the conspiracy as pleaded. 469 So far as the common purpose was said to have involved reduction in the power and influence of the MUA, that in itself would not be productive of unlawfulness or breach of the provisions of the WR Act. The unlawful means relied on can only be established where a breach relates to an employee. The proscribed conduct in s 298K(1) has no application to conduct diminishing the power and influence of the MUA. No other provision was said to be applicable. 470 It is not established as pleaded that there was a common purpose to reduce the conditions of employment and employment security of the second applicants. In my view, however, there was a common purpose (not the one pleaded although referred to in the applicant's submissions) to the effect that there would be a reduction in the influence of the Award and the Agreement. Such a common purpose did not carry with it any necessary unlawfulness. 471 That this is so is supported by reference to the resolution leading to the cessation from involvement in provision of stevedoring labour. The GPA resolved to adopt a business plan and "the progressive exit from the provision of providing labour for stevedoring operations". That resolution was preceded by the requirement in the same resolution that "all staff [to] be offered the opportunity to apply for voluntary redundancy". I regard that aspect of the resolution of critical importance because it negates an inference of a shared intention to reduce conditions of employment and diminish employment security as a necessary concomitant of the implementation of State Government policy. Furthermore, the resolution provided that "business [to] continue as normal in the meantime with due allowance for the expectation of staff downsizing". Implementation by voluntary redundancies could not therefore necessarily involve a breach of the provisions of the WR Act provided that, in respect of those not accepting such redundancies, their conditions were maintained. This would mean that if loss of overtime were an actual injury or prejudice, measures would be needed to compensate for it or protect against it. 472 In the opening of the applicants' case it was stated that what had to be established in the case of each respondent was awareness of "the material fact which constituted the contravention". The material facts immediately coming within that description was the decision by the GPA to cease irregular shiftwork for the MUA employees as a consequence of the GPA exiting stevedoring. For the applicants it is contended this is conduct the combiners must have been aware of. However, it was clear from the evidence of both Mr Charlton and Mr Criddle that they left to the GPA the details of implementation. It was open to the GPA to implement the decision to exit stevedoring by means which did not give rise to any unlawfulness e.g. by offering voluntary redundancies. There is plentiful evidence that Mr Criddle sought the achievement of the objectives through voluntary redundancy packages as part of the effective means of implementation. The possibility of the application of the same decision to the second applicants falls in the same category. 473 Accordingly, I conclude that the common purpose involving as it does on the applicants' formulation the notion to injure by unlawful means, is not established. It follows the claim for conspiracy does not succeed. 474 The agreement or combination by unlawful means not being established, it follows also the objections based on the Ahern principle must be allowed.
Associate: Dated: Mr R F Redlich QC with Mr W Friend and Mr P Rozen Counsel for the Applicants:
Solicitor for the Applicants: Maurice Blackburn & Co
Counsel for the First Respondent: Mr R L Le Miere QC with Mr J R B Ley
Solicitor for the First Respondent: Freehill Hollingdale & Page
Counsel for the Third Respondent: Mr K J Martin QC with Mr C J Sweeney
Solicitor for the Third Respondent: McCallum Donovan Sweeney
Counsel for the Fourth Respondent Mr G T W Tannin with Mr M G Lundberg
Solicitor for the Fourth Respondent Crown Solicitor for the State of Western Australia
Date of Hearing: 10-12, 15-19,22-25, 29-31 March; 1, 7-9, 19-23, 27-30 April 1999
WESTERN AUSTRALIA DISTRICT REGISTRY WAG 101 OF 1998
SUMMARY STATEMENT (Read upon delivery of the Reasons for Decision) This matter is listed today for the Court to announce its decision and publish its reasons. I shall do so shortly. However, firstly, I propose to read a summary of the main conclusions in the reasons. This summary is not intended as a substitute for or as an addition to the published reasons which constitute the only authoritative pronouncement of the Courts decisions. These proceedings are brought by the applicants in respect of decisions made by the Geraldton Port Authority on 3 July 1998 and implementation of those decisions. The relevant decisions were (1) to lease the bulk handling facility at the Geraldton Port and (2) to cease to provide labour to stevedores operating in the Port. The applicants made a number of claims in respect of this conduct of the Authority. Proscribed Conduct The first main claim was that the Authority had contravened s 298K of the Workplace Relations Act 1996 (Cth) in the making and implementation of the decisions. The implementation involved the making of offers of voluntary redundancy to employees of the Authority. The second applicants are persons who were offered voluntary redundancy but declined to accept it and therefore remain in the employ of the Authority. In addition, there are employees known as the maintenance employees who have been retained by the Authority. A third group of employees, the casual employees, are no longer engaged by the Authority because of its cessation of engagement in stevedoring work. It was claimed that a threat of redeployment under the Public Service Management Act 1994 (WA) of any employees declining voluntary redundancy would constitute a threat to dismiss or a threat of injury in employment or prejudicial alteration to their position. That claim has not succeeded. It was also claimed the removal of the second applicants and the maintenance employees from irregular shiftwork to day work with consequent diminished opportunity to earn overtime was an injury in employment or prejudicial alteration to the position of those employees. The claim has succeeded so far as it relates to prejudicial alteration of the positions of the second applicants. One consequence of the change from irregular shiftwork to day work was that the annual leave of the second applicants and the maintenance employees was reduced from five weeks to four weeks. As this occurred in accordance with the applicable Award, a claim by the applicants that this constitutes an injury in employment or prejudicial alteration to their positions has not been accepted. A further claim that the Authority refused to employ casual employees has not succeeded. Additionally, a claim that Mr Charlton and Mr Criddle, the third and fourth respondents, were necessarily encouraging or influencing conduct which was injurious and prejudicial and hence unlawful under s 298K has not been made out. Although the MUA as first applicant claimed loss of power and influence, that did not give rise to any infringement of s 298K(1). Duress The second main claim made for the applicants was that the conduct of the Authority had impermissibly applied duress to employees in connection with an Australian workplace agreement or ancillary document contrary to s 170WG of the Workplace Relations Act. That claim has not succeeded. Refusal to deal The third main claim by the applicants was that actions by the Authority contravened s 71 of the Workplace Agreements 1993 (WA) in that the Authority had refused to deal with Geraldton Shipping Agencies (to whom the lease to operate the bulk handling facility was granted by the Authority) except on the basis it entered into a workplace agreement with its employees. That claim has not succeeded. Conspiracy The fourth main claim made on behalf of the applicants was that the Authority, Mr Charlton and Mr Criddle had wrongly conspired to injure the applicants by unlawful means. This was not a claim of criminal conspiracy. It was a claim of civil conspiracy. The conspiracy was said to have been constituted by the sharing of a common purpose between those three parties to carry out a lawful object by unlawful means. Although the Court has found that the Authority did combine with Mr Charlton and Mr Criddle for the purpose of implementing State Government policy relating to Ports, it has held that the common purpose of such combination did not include the conduct relied upon by the applicants to establish the alleged unlawfulness. Consequently the claim of conspiracy has not succeeded. Implied constitutional immunity defence In relation to the matter on which the applicants have succeeded - namely establishing a prejudicial alteration of the position of the second applicants in respect of the prospect of loss of overtime - it is necessary for the Court to shape appropriate orders. On behalf of the respondents it was said that there was an implied immunity of the Authority from the application of any such orders. That claim in defence has not succeeded. [The Full Text of the Court's reasons delivered on 5 July 1999 is available at http://www.austlii.edu.au/au/cases/cth/federal_ct/]
Maritime Union of Australia
Geraldton Port Authority
[1998] QSC 20
(1980) 43 FLR 193
(1959) 101 CLR 298
(1938) 60 CLR 336
(1992) 110 ALR 449
(1993) 43 FCR 1
(1993) 115 ALR 411
(1976) 26 FLR 257
(1976) 12 ALR 605
(1995) 63 IR 119
(1976) 25 FLR 415
(1981) 57 FLR 49
(1982) 61 FLR 283
(1996) 65 IR 317
(1996) 73 IR 140
(1998) 157 ALR 531
(1998) 77 FCR 456
(1939) 62 CLR 573
(1985) 8 FCR 27
(1911) 13 CLR 358
(1931) 46 CLR 41
(1997) 191 CLR 1
(1979) 26 ALR 430
(1993) 114 ALR 551
(1979) 27 ALR 367
(1988) 19 NSWLR 40
(1998) 152 ALR 267
(1995) 2 VR 44
(1911) 14 CLR 387
(1959) 103 CLR 30
(1959) 33 ALJR 224
(1931) 46 CLR 343
(1935) 52 CLR 712
(1992) 59 SASR 454
(1996) 185 CLR 307
(1998) 157 ALR 135
(1988) 165 CLR 87
(1961) 104 CLR 1
(1996) 187 CLR 416
(1985) 159 CLR 192
(1995) 184 CLR 188
(1986) 70 ALR 135
(1988) 24 IR 467
(1988) 25 IR 394
(1995) 60 IR 258
(1978) 32 FLR 360
(1975) 25 FLR 415
(1994) 58 IR 118
(1996) 70 IR 117
(1942) 66 CLR 18
(1993) 47 FCR 190