Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union - [2019] FCA 451 - FCA 2019 case summary — Zoe

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Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union

[2019] FCA 451

Federal Court of Australia|2019-04-02|Before: Lee J

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Court

Federal Court of Australia

Decision date

2019-04-02

Before

Lee J

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

Introduction 165 This basis for the respondents contending that there was no relevant "industrial action" was, as finally articulated, advanced in the RS at [23]-[41]. As noted above, the Union contends that clause 1.3 does not require proven contraventions of the Enterprise Agreement, rather, the clause is conditional upon the existence of a suspected breach. 166 It was common ground that this calls for the Court to consider whether, on the part of either the Union or the employees or an employee, "there was some basis for a genuinely held belief that the [Enterprise] Agreement had been breached". 167 It is said that the clauses of the Enterprise Agreement relevant to the Suspected Breach Dispute are clauses that create both substantive and procedural obligations upon Patricks. Clause 12.5 requires Patricks to ensure compliance with norms relating to work health and safety and Clauses 12.7 and 14 generally create obligations to consult. The relevant clauses (and some additional subclauses to provide context) are set out below: 12. OCCUPATIONAL HEALTH AND SAFETY AND REHABILITATION … Regulation of Workplace Health and Safety 12.5 The Parties will ensure compliance with all relevant WHS Acts and regulations; Stevedoring Guidelines (2009); Codes of Practice issued by SafeWork Australia, and the AMSA Marine Orders. The Safety Committee will determine other relevant guidelines. … Consultation 12.7 The Company commits to, as far as is reasonably practicable, consult with employees and Health and Safety Representatives (HSRs) about matters as required by the WHS Act. 12.8 Consultation will include sharing with employees and HSRs information about health and safety matters; giving the employees a reasonable opportunity to express their views; and, taking into account those views and advising employees of the outcome of any consultation in a timely manner. … 14. CONSULTATION AND CHANGE 14.1 The parties are committed to working together to consult over change that impacts employees covered by this Agreement. This clause sets out the processes through which the Company, employees and the Union will consult about significant change. 14.2 This clause applies if the Company has made a definite decision to introduce a significant change. 14.3 Without limiting the generality thereof, significant change includes redundancy, changes in the composition, operation or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. 14.4 Once the Company makes a decision that it intends to proceed with any significant change it shall advise the employees and the Union of: 14.4.1 the nature of the change; 14.4.2 the reason for it; 14.4.3 the timing of it; and 14.4.4 any other relevant information. 14.5 After providing the above information the Company, prior to implementing the change, will consult with the employees and consider any views or advice from the Union or employees in relation to the proposed change. This consultation will be conducted over a period that is appropriate to the scope and urgency of the change, and will be a minimum of two weeks. 14.6 After the above notification and discussion has taken place the Company, after careful consideration of the views of employees, may implement change with 21 days' notice. This sub-clause does not affect all, and any rights of the Union or employees in accordance with Schedule 1 of the Agreement. 14.7 Where employees disagree with the change, subject to there being no stoppage of work other than in accordance with Schedule 1 of this Agreement, the employee or the Union, may at any stage refer the matter in dispute to the FWC in accordance with the Dispute Resolution Procedure set out in Schedule 1 of this Agreement. 14.8 Consultation in respect of major technological change will be undertaken in accordance with Schedule 11.

[2]

Union Submissions 168 In his email sent the day after the 11 April Direction, Mr Jayson Laing, a Union Health and Safety Representative, a member of the Site Committee, and the Safety Facilitator, emailed Mr Frawley, the National Health, Safety and Environment Manager and said (Exhibit N 881): I am trying to make sure that all the Cube (sic) truck drivers, that I was made aware of today that are now running containers into the rail area are compliant with our site procedures. I was made aware today that once again without any consolation that these 8 truck drivers are now running containers out of Cube through our truck grid area. Then re-entering into our rail area whilst all using our terminal radios and channels. I am seeking the proof that these guys have: 1. Current ID cards 2. Signed Assessments with date. 3. Are all on the contractor database. 4. Also that our trainers have induced these drivers. As per the EBA. As well as teaching radio standard operating procedures while on site. 169 Mr Laing's email also referred to light vehicles exiting the Terminal through the truck exit lanes, and asked to see the risk assessment of that procedure so that the topic could be discussed at an upcoming safety committee meeting. It is said Mr Laing's email identifies a range of suspected breaches of the Enterprise Agreement and that his "consolation" (sic) was a reference to the consultation obligations found in clauses 12.7 and 14. The suspicion of failure to abide by site procedures, or failure to carry out a risk assessment, it is said, suggests a potential breach of the obligations referred to in Clause 12.5 of the Enterprise Agreement. 170 A dispute arose as a consequence of the suspected breaches identified by Mr Laing in this email, which had been forwarded by Mr Guy to Mr Graham. Mr Laing emailed again on 17 and 19 April 2017, reiterating his concerns and raising further concerns. The email of 17 April 2017 again dealt with compliance with site procedures (Exhibit N 2999-3000): … 11 Cube (sic) employees were rushed through their inductions the next day on Thursday at approximately 10 am … While we are on company procedures, I am very concerned with contractor's having access to one of our safety tools being a hand held radio, with access to all our channels which is used for Patrick employees in our operational areas… They need to go through the correct procedures if they need to access an operational area … Another concern that has been brought to my attention is the rail trucks being given permission to overtake trucks in the truck grids…Maybe we need to have a closer look at maybe a PIN notice (b)eing placed to resolve some of these issues … Hopefully someone has some answers and can help resolve these issues. I'm sure the dispute notice that is currently gone to fair work will help sort some of these issues out. But in the meantime we all still have a duty to make sure we have a safe workplace. Looking forward to someone replying this time. 171 Again, Mr Laing's email raised suspected breaches and referenced obligations under the Work Health and Safety Act 2011 (NSW) (WHS Act) incorporated by clause 12.5. It is submitted that there is no doubt that the matter was one of pressing concern to Mr Laing. Moreover, Mr Guy was aware, by 19 April 2017, that the Union and the workforce were relying upon clause 1.3 in respect of the dispute (Exhibit C at [54]-[56]). It is said to follow that Mr Guy must have appreciated that the Union was contending that there was a dispute arising from a suspected breach of the Enterprise Agreement. 172 Although a later risk assessment finalised at the end of May 2017 did not identify any further or other risks, the respondents submit that this is beside the point: the real issue is that the accepted practices at the Terminal had changed such that it was necessary to conduct a risk assessment so as to conform to the obligations in clauses 12.5 and 12.7. The failure to undertake that risk assessment, it is contended, not only gave rise to a suspected breach of the Enterprise Agreement but also an actual breach of s 19 of the WHS Act. 173 The respondents also note that the obligation to consult arising under clause 14 of the Enterprise Agreement, is conditioned, by clause 14.2, on a definite decision to introduce a significant change. As might be expected, the submissions as to significant change repeat, at least in part, the submissions made as to why the direction should be characterised as being to require "employees to work different (sic) to accepted practice/s". Hence it is said the Sublease Area stored a very large number of containers (possibly thousands) within the Terminal near the Rail Yard. Trucks entering the Sublease Area exited through a road which runs through the middle of the Terminal. Volumes of containers being moved through the Terminal increased in the order of 500 movements per week (between 10 and 20% of existing volume). The change led to an increase in manning in the Rail Yard (Exhibit A [34], [35]). 174 Patricks denied any obligation to consult, claiming in the letter of 24 April 2017, that there was no significant change as there was no impact on the Patricks' workforce (Exhibit N 1259). It is contended that this claim is contrary to the evidence of the changes referred to above.

[3]

Submissions of Patricks and Qube 175 In broad summary, Patricks summarises the case made by the respondents as Mr Laing sending two emails which referred to a number of safety issues. Mr Laing, it is contended, did not assert that those issues were breaches of the Enterprise Agreement, save in relation to one point about which it is asserted "he was clearly wrong". Additionally, and importantly, it is asserted that there is no evidence that the matters he raised were genuinely held concerns. No employee, let alone any of the rail employees, has given evidence of genuine belief relating to suspected breach of the Enterprise Agreement, including as to safety. 176 What the respondents do is to invite the Court to infer two things: first, that there was a dispute about whether the WHS Act had been breached (notwithstanding that Mr Laing did not assert this, nor give evidence that he held such a suspicion); and secondly, because the respondents assert that the Enterprise Agreement requires compliance with the WHS Act (which is denied by Patricks), in substance what Mr Laing had done was raise a dispute about a suspected breach of the Enterprise Agreement (notwithstanding that he did not say that). In substance it is said that this amounts to an argument that the Court conclude that because there was arguably a basis for some dispute about a suspected breach of the Enterprise Agreement (which is denied), that is in fact what happened. 177 Additionally, to the extent that Mr Laing raised concerns, the emails were the first time that such safety related concerns had been raised. None of the concerns related to the actual work undertaken by the rail employees and were instead of a general nature relating to the operation and movement of trucks by Qube in the Terminal. 178 Irrelevantly in my view, the applicants also point to the fact that consistent with the absence of any safety concerns relating to the work the subject of the Ban, the Rail Employees unloaded empty containers on trucks operated by Qube in accordance with the Direction on at least four occasions between 12 and 19 April 2017. 179 Finally, it is asserted that there was no change in relation to the work undertaken by the employees or the rail employees as a result of the 11 April Direction being issued, let alone a significant change for the purposes of clause 14 of the Enterprise Agreement. In this regard it is instructive that clause 14.3 defines "significant change" to include changes such as redundancy, change in the composition, operation or size of the workforce, the elimination or diminution of job opportunities or in the skills required and so on. 180 It follows that there was no reasonable basis for any rail employees to have held the belief that Patricks breached the Enterprise Agreement and therefore clause 1.3 was not engaged.

[4]

Conclusion on Suspected Breach Dispute 181 The submissions of the applicants should generally be accepted. Moreover, there is an answer to the suggestion that there was a Suspected Breach Dispute on the evidence. Central to the respondents' case was the truth of the representations contained in the emails of Mr Laing. Despite its length, it is necessary to set out an extract from the transcript dealing with the basis upon which these emails were admitted into evidence (T386.26-388.24): HIS HONOUR: … the document in exhibit N, C881, be limited - there be a limitation, pursuant to section 136 of the Evidence Act, that it not be evidence of the truth of the representations contained in it, but of the fact of the communication, and not evidence of the subjective view of Mr Laing. Are you content with that, Mr Reitano? MR REITANO: Just pardon me for a moment. Only the last bit, your Honour. It is evidence of his subjective view. HIS HONOUR: Yes, but if you go[t] in for that purpose it would operate unfairly in circumstances where - I'm not sure whether that's in issue or not, Mr Laing's subjective view; is it? MR FERNON: Well, we don't concede that that's a subjective view. It's a communication that we received and we dealt with, but we don't accept or admit that it's a subjective view of Mr Laing. HIS HONOUR: Well, there's two ways of dealing with this. Strictly speaking, if you're putting in issue the fact that Mr Lang believed what he said in that email, it would be up for Mr Reitano to call him. You could challenge the fact that he held that view at that time or not. What I'm trying to get at is, if he was called, would that be in issue or not? Because if it is in issue, then I could understand the objection. If it isn't, in truth, in issue, then it seems to me to be - if it is in issue, I can understand the unfairness that would be occasioned with letting it in without a limitation; if it isn't in issue, then I can't. MR FERNON: It would be in issue, your Honour. HIS HONOUR: It is in issue. Yes. MR REITANO: Well, it's not raised in their submissions, your Honour, as being in issue. All of their submissions proceed on the basis that it's not in issue, as do ours. This has come about after the close of their case - the attempt to limit this document. HIS HONOUR: No, this issue was deferred at the same time - - - MR REITANO: I accept that. HIS HONOUR: - - - they closed their case, Mr Reitano, and if you say it operates as any unfairness to you then I would allow you to revisit the decision that you made in relation to who you proposed to call, and whether you wish to go into evidence. If you tell me that takes you by surprise, then of course I would not - I mean, the fact is you didn't go into evidence. MR REITANO: No. HIS HONOUR: And you have to prove, for example, suspicion. MR REITANO: Yes. HIS HONOUR: Genuinely held. MR REITANO: Yes. HIS HONOUR: Now, I don't know whether a submission is going to be made, in terms, it's impossible for you to prove the subjective state of mind of people in circumstances where you haven't called any of them. MR REITANO: We say it is apparent from the face of the document, and that's why we want to put the document in. HIS HONOUR: Well, I appreciate that, and that's why I understand - - - MR REITANO: Mr Frawley - - - HIS HONOUR: - - - it's an issue, but it seems to me that you can't seek to prove the subjective state of mind of people through the back door through the tender of a business record, in circumstances where that would operate an unfairness, because plainly the other side is then deprived of the opportunity of testing the genuineness of that subjective state of mind. MR REITANO: Well - - - HIS HONOUR: It's a fairly standard approach to limitations in business records, if issues such as condition of mind are in play. MR REITANO: If it please, your Honour. HIS HONOUR: But I would allow you, Mr Reitano - so the limitation that I identified, that it's not evidence of the state of mind of Mr Laing, I will make, but if you wish to have an adjournment, or if you wish to call Mr Laing, or somebody else, in order to seek to prove the subjective state of mind of either Mr Laing or somebody else, then, in the light of that ruling, I'm very happy to give you the opportunity of doing so, if you were operating - because, strictly speaking, you're quite correct. I mean, these things are happening - I mean, they are only happening because I raised the issue of what limitations, and until all the issues have been resolved concerning what the metes and bounds of the applicant's case are, you are perfectly entitled not to nail your colours to the mast and make whatever forensic decisions you wish to make upon the entire picture of the applicant's evidence, including any limitations, have been both in evidence and also any limitations have been resolved. MR REITANO: Thank you, your Honour. 182 All three relevant emails that sought to prove the subjective state of mind of Mr Laing were limited in this way. Accordingly, there is no evidence of the truth of the representations as to the genuine concern of any person on behalf of the Union as to safety issues. It would have been easy to adduce such evidence if it existed and a forensic decision was made not to do so. In those circumstances, I am not prepared to find that any of the employees including Mr Laing had the subjective belief of the type the respondents submit they had. If a subjective view was to be proved, it should have been done properly. Inferences about motivations lying behind business records are not enough when the issue was squarely in play. It would be quite unfair for evidence as to subjective belief to be adduced, absent an ability of a party challenging the fact or genuineness of that belief to be able to test the evidence. Fair work litigation should not be some type of Galápagos Islands where evidentiary rules and notions of fairness applying in other types of litigation as to proof of knowledge do not apply.

[5]

VI Conclusion on No Industrial Action Contention 183 It will be recalled that the opening words of clause 1.3 provide that its operation is restricted to "[w]here a dispute arises in the workplace as a consequence of the Company directing employees to work different (sic) to accepted practice/s or a suspected breach of the Enterprise Agreement". Given I have concluded that neither a Work Change Dispute nor a Suspected Breach Dispute was relevantly in existence (as those concepts are properly understood), the contention that "work [was required to] continue as existed prior to the dispute arising until the matter has been determined through the [DRP]" is misconceived and must be rejected. 184 I have dealt with the argument of the respondents on the merits. I should record, however, that the submission was made by Patricks that there "is in fact no justiciable controversy before the Court as to whether clause 1.3 operates to authorise an employee to refuse to unload containers from the [Sublease Area] and to load onto train in the Rail Yard". This is because, it is submitted, that Deputy President Booth of the FWC found on 4 May 2017 that the FWC was unable to exercise the power of arbitration in clause 1.3 and that it followed, as a consequence, that there was no restriction on Patricks giving the 11 April Direction requiring that work be performed. In these circumstances, Patricks made reference to the decision of the Full Court in Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146; (2018) 281 IR 319 (which had upheld an argument by a union that as the Full Bench of FWC had finally determined the dispute under its power of private arbitration, the controversy between the parties had been extinguished, and there was no longer any matter arising under the FW Act for the purposes of this Court's conferred power under s 562 of the FW Act to enliven its jurisdiction). 185 Despite being raised by the Court, the issue of a want of jurisdiction or abuse was unpleaded, the point was only mentioned in passing, the submission was undeveloped, and no other party provided assistance. In the circumstances, there is no need to tarry to deal with it.

[9]

H.1 Alleged contraventions of s 340(1) 191 As noted above, Patricks also ran an adverse action case. Section 340(1) of the FW Act provides: A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. 192 It is asserted that in organising the industrial action, Mr McAleer and Mr Keating took "adverse action" as a means to place pressure on Patricks not to direct employees to perform work connected to the Sublease Area, as part of its campaign against those developments: s 342 Item 7(2)(a). It is further asserted that pursuant to s 363(1), the action taken by Mr McAleer and, to more limited extent, Mr Keating, is taken to be an action of the Union, such that all three respondents have contravened s 340. 193 Clause 8.4 of the Enterprise Agreement provided that: The Company Management has rights and responsibilities and nothing within this Agreement shall be taken to diminish these in any manner. In accordance with clause 15, the Company at any time may determine which positions, structures and work practices shall exist and the manner in which employees placed by the Company to those positions and structures carry out their duties. 194 Clause 15.2 of the Enterprise Agreement, provided that: An employee of the Company shall perform any work as the Company may reasonably require including any function for which the employee is qualified including work of a higher or lower grade provided that the employee is remunerated in accordance with the Award and this Agreement. 195 The Enterprise Agreement also incorporated clause 9.7.1 of the Stevedoring Industry Award 1999, which provided that: An employee will perform such work under this award as the employer, from time to time, reasonably requires. 196 These provisions allowed Patricks the right to have employees perform work Patricks reasonably required. I accept the submissions of Patricks that this is a benefit under a "workplace instrument" (that is, the Enterprise Agreement) and hence a "workplace right" within the meaning of s 341(1)(a) of the FW Act. The only answer advanced to this case is the contention of the respondents that they did not organise the ban or limitation because of the exercise of a workplace right by Patricks, but rather the campaign against Patricks was "connected with its restructuring of its operations". 197 The difficulty for the respondents is that they bear the onus to disprove that they organised industrial action with the alleged intent: FW Act s 361(1). The respondents would appear to submit that the presumption under s 361 that the respondents organised industrial action for the reason that Patricks exercised or proposed to exercise a workplace right has been displaced. Although I accept that the material in evidence demonstrates that the Union had an ongoing community and social media campaign against Patricks connected with its "restructuring of its operation", this is not to the point. In the absence of any evidence in relation to the respondents' intentions, the respondents have failed to discharge that onus insofar as the allegation is advanced against them: see, for example, Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452; (2006) 161 IR 9 at 14 [29]. 198 My finding is that the industrial action commenced on 20 April, following the "escalation" of the dispute and communications between Mr Balzan, Mr Keating and Mr McAleer. Mr McAleer intended "escalation" once aware, the day after the 11 April Direction, that Qube was "running boxes into the rail". It was just before a Qube train was to be unloaded at 10:30am on 20 April that the phone calls between Mr Balzan, Mr Keating and Mr McAleer took place. The ban on unloading the Qube truck then was put in place and the General Stoppage of Work, in which Mr McAleer was particularly instrumental, followed. As noted above, the industrial action was manifestly directed towards stopping the work pursuant to the 11 April Direction and because Patricks maintained the requirement that the Qube trucks be unloaded in the Rail Yard. 199 Moreover, as Patricks submit, the FW Act recognises that there may be multiple reasons for which adverse action is taken and it is enough to establish a contravention that one such reason be unlawful. Patricks alleged that each respondent took adverse action for reasons including reasons proscribed by the FW Act, and as my finding reflects, all the evidence points to the correctness of that allegation. No evidence has been led explaining why the respondents acted as they did. Accordingly, I am satisfied, in the absence of any relevant evidence from the respondents, that they contravened s 340(1) of the FW Act as pleaded. 200 In addition to having organised the employees' contraventions of s 340, it was submitted that by reason of s 550 of the FW Act the respondents were also "involved" and "knowingly concerned" in either all (or in the case of Mr Keating, only some) of the employees' contraventions. On each occasion that an employee engaged in industrial action, "adverse action" was taken: FW Act s 342(1), item 5(b). The employees did so for the same reasons as the respondents and by taking adverse action for those reasons, the employees contravened s 340(1). 201 As my findings indicate, the respondents had knowledge that the employees would and did engage in industrial action; that Patricks had workplace rights under the Enterprise Agreement and were exercising rights by requiring the employees to do the relevant work. They also knew the reason for the employees taking industrial action was Patricks' actual and proposed exercise of its workplace rights. The evidence establishes that each of the respondents (to the extent pleaded) abetted, counselled and advised the employees to engage in the conduct which constituted the contraventions and that they procured it. It follows inexorably, that they were each "involved" in the employees' contraventions, and hence are taken to have contravened s 340(1) in this respect. 202 Finally, for completeness, the submission that Mr McAleer (and therefore presumably the Union) acted in accordance with their view of the Enterprise Agreement and clause 1.3 is no defence. Whether or not that is so (and again, there is no evidence that it is), they have not disproved that they also acted in part for the reasons alleged by the applicants. Mr McAleer's belief that his conduct was lawful does not make it so: see Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; (2017) 92 ALJR 106 at 111 [2], 124-125 [61] (Kiefel CJ, Keane, Nettle and Edelman JJ).

[10]

H.2 Alleged contraventions of s 343(1) 203 This is not the end of the way Patricks put its case. Section 343(1) of the FW Act provides that: A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or (b) exercise, or propose to exercise, a workplace right in a particular way. 204 As has been said by Dowsett and Rares JJ, "[i]t is important to recognise that coercion is a particularly serious form of industrial (mis)conduct": Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 at 480 [97]. When this is understood, it is passing strange that the allegation of coercion was made by Patricks without detailed argument as to why such a contravention should be found being developed in any substantive way - either orally or in writing. It is perhaps because of this that the respondents did not engage with the argument in any detail. 205 The word "coerce" in the relevant context means to negate choice, and entails a high degree of compulsion being brought to bear, and not merely an intent to influence, persuade or induce. It is essentially a practical matter as to whether the pressure brought to bear leaves the person to whom it is directed with a realistic choice as to whether or not to comply. It is an assessment to be made on the basis of a detailed review of all of the evidence, including any principled engagement of the reversal of onus provision in s 361 of the FW Act. 206 As the Full Court explained in Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 277 IR 75 explained at 88 [25]-[26]: It is well-established that the expression "intent to coerce" in ss 343 and 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39; 258 IR 396 at [174] (Buchanan J, with whom Siopis J agreed at [1]). We interpose that this conclusion and the line of authorities relied upon to reach it do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see Esso Australia Pty Ltd v Australian Workers' Union (2017) 92 ALJR 106; 271 IR 210 at [61] (Kiefel CJ, Keane, Nettle and Edelman JJ). Furthermore, and most importantly for present purposes, the Full Court also held in Esso that the intent aspect of the expression "intent to coerce" applies to the negation of choice element. This contrasts with the other element, the use of unlawful, illegitimate or unconscionable conduct, which is to be assessed objectively (see Esso at [194]). It follows that the relevant particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate choice. It follows further that, for the presumption in s 361 to operate with respect to a contravention of those sections, the particular intent that must be alleged in the application is an intent to negate choice. Conversely, alleging that the particular intent was an "intent to coerce" creates ambiguity because that expression does not refer to an intent per se, but rather, as discussed above, refers to the two elements of coercion, only one of which relates to the alleged contravener's intent. 207 Patricks dealt with this submission substantively in just five paragraphs of its lengthy closing submissions. It was stated that the respondents "sought in a practical sense to negate the choice" of Patricks to continue to require that employees at the Rail Yard handle empty containers. Further, it was said that the actions of the employees left Patricks with a choice between having work in the Rail Yard done on the terms which the respondents dictated, or not at all. 208 In order to understand how Patricks put this part of its case, it is necessary to go to Section F of the third amended statement of claim (alas there are two "Section F"s, but the s 343 contraventions are pleaded in the second of these sections, at [207X]). This is important not only for the purpose of understanding Patricks' coercion case, but it also serves to illustrate the cumbrous and confusing nature of the pleading. Before getting to Section F, it is necessary to reproduce some earlier sections of the pleading being [10A], [10B] and [207A]. These were in the following terms: 10A. It is a term of the Enterprise Agreement that an Employee will perform such work as [Patrick Holdings] from time to time reasonably requires. Particulars Clause 6.1 of the Enterprise Agreement; clause 9.7.1 of the Stevedoring Industry Award 1999. 10B. It is a term of the Enterprise Agreement that [Patrick Holdings] may at any time determine which positions, structures and work practices shall exist and the manner in which Employees carry out their duties. Particulars Clause 8.4 of the Enterprise Agreement. 207A. By reason of the terms pleaded in paragraphs 10A and 10B above, [Patrick Holdings] at all relevant times had workplace rights as defined in section 341 of the FW Act to direct the work which is to be performed by Employees (Rights to Direct). 209 The pleading continues: F SECTION 343 CONTRAVENTIONS 207X. Additionally and alternatively to paragraphs 207DB and 207DC above [which dealt with the alleged s 340 contraventions], on each occasion that an Employee named in Schedule 1-8 engaged in an instance of the Port Botany Industrial Action, he or she did so with the intent to coerce [Patrick Holdings] not to exercise its Rights to Direct at all. 207Y. Additionally and alternatively to paragraph 207X above, on each occasion that an Employee named in Schedule 1-8 engaged in an instance of the Port Botany Industrial Action, he or she did so with intent to coerce [Patrick Holdings] to exercise its Rights to Direct in a particular way, namely in a manner different to that in which it would have exercised them in the normal course of its operations and in the absence of the Port Botany Industrial Action. 207Z. Where an Employee engaged in any instance of the Port Botany Industrial Action for multiple reasons including either or both of those pleaded in paragraphs 207X and/or 207Y above, then the Employee engaged in that action for that reason or reasons. Particulars Section 360 of the FW Act. 207AA. It is presumed that each Employee named in Schedule 1-8 engaged in each instance of the Port Botany Industrial Action in which he or she participated for the reasons pleaded in paragraphs 207X and 207Y above, unless each relevant Employee proves otherwise. Particulars Section 361 of the FW Act. 207BB. By reason of the matters pleaded in paragraphs 207C-207DE and 207X-207Y above, each Employee, or alternatively the Employees, named in each of Schedules 1- 8, contravened s 343 of the FW Act on each occasion that he or she engaged in an instance of the Port Botany Industrial Action. 207CC. In the premises, each Employee, or alternatively the Employees, named in each of Schedules 1-8 contravened a civil remedy provision as defined in s 539 of the FW Act on each occasion that he or she engaged in an instance of the Port Botany Industrial Action. (i) Contraventions by the 1st Respondent 207DD. By reason of the matters pleaded in paragraphs 207C-207G, [the Union] organised actions against [Patrick Holdings] in the form of each instance of the Port Botany Industrial Action. 207EE. By reason of the matters pleaded in paragraphs 26A, 26B, 207B, 207J and 207DD above, [the Union] organised actions against the [Patrick Holdings], in the form of each instance of the Port Botany Industrial Action, with the intent to coerce [Patrick Holdings] not to exercise its Rights to Direct at all. 207FF. Further or in the alternative to paragraph 207EE, by reason of the matters pleaded in paragraphs 26A, 26B, 207B, 207J and 207DD above, [the Union] organised actions against [Patrick Holdings], in the form of each instance of the Port Botany Industrial Action, with intent to coerce [Patrick Holdings] to exercise its Rights to Direct in a particular way, namely in a manner different to that in which it would have exercised them in the normal course of its operations and in the absence of the Port Botany Industrial Action. 207GG. By reason of the matters pleaded in paragraphs 207DD-207FF above, [the Union] contravened section 343 of the FW Act with respect to each instance of the Port Botany Industrial Action. 207HH. Additionally and alternatively to paragraphs 207DD to 207GG, by reason of the matters identified in paragraph 207KA above, [the Union] was involved the contraventions of s 343 of the FW Act pleaded in paragraphs 207BB and 207CC above in relation to in each instance of the Port Botany Industrial Action in that it: a. aided, abetted, counselled or procured each instance of such action; and b. further and in the alternative, was directly or indirectly knowingly concerned in or party to each instance of that action. 207II. In the premises, by reason of s 550 of the FW Act, [the Union] is taken to have contravened s 343 of the FW Act 146 times, being once in relation to each of: a. the 3 Employees named in Schedule 1 who engaged in the 20 April Day Shift Rail Action; b. the 49 Employees named in Schedule 2 who engaged in the 20 April Evening Shift Action; c. the 30 Employees named in Schedule 3 who engaged in the 20 April Night Shift Action; d. the 44 Employees named in Schedule 4 who engaged in the 21 April Day Shift Action; e. the 5 Employees named in Schedule 5 who engaged in the 26 April Day Shift Rail Action; f. the 5 Employees named in Schedule 6 who engaged in the 26 April Night Shift Rail Action; g. the 5 Employees named in Schedule 7 who engaged in the 27 April Evening Shift Rail Action; and h. the 5 Employees named in Schedule 8 who engaged in the 1 May Day Shift Rail Action, or in the alternative, 8 times, being once with respect to each instance of the Port Botany Industrial Action. (ii) Contraventions by [Mr McAleer] 207JJ. By reason of the matters set out in paragraphs 207C-207D and 207L-207N above, [Mr McAleer] organised actions against [Patrick Holdings] in the form of each instance of the Port Botany Industrial Action. 207KK. By reason of the matters pleaded in paragraphs 26A, 26B, 207B, 207Q and 207JJ above, [Mr McAleer] organised actions against [Patrick Holdings], in the form of each instance of the Port Botany Industrial Action, with the intent to coerce [Patrick Holdings] to exercise its Rights to Direct at all. 207LL. Further or in the alternative to paragraph 207KK, by reason of the matters pleaded in paragraphs 26A, 26B, 207B, 207Q and 207JJ above, [Mr McAleer] organised actions against [Patrick Holdings], in the form of each instance of the Port Botany Industrial Action, with intent to coerce [Patrick Holdings] to exercise its Rights to Direct in a particular way, namely in a manner different to that in which it would have exercised them in the normal course of its operations and in the absence of the Port Botany Industrial Action. 207MM. By reason of the matters pleaded in paragraphs 207JJ-207LL above, [Mr McAleer] contravened section 343 of the FW Act with respect to each instance of the Port Botany Industrial Action. 207NN. Additionally and alternatively to paragraphs 207JJ to 207MM, by reason of the matters identified in paragraph 207KA above, [Mr McAleer] was involved in the contraventions of s 343 of the FW Act pleaded in paragraphs 2078B and 207CC above in relation to each instance of the Port Botany Industrial Action in that he: a. aided, abetted, counselled or procured each instance of such action; and b. her and in the alternative, was directly or indirectly knowingly concerned in or party to each instance of that action. 207OO. In the premises, by reason of s 550 of the FW Act, [Mr McAleer] is taken to have contravened s 340 of the FW Act 146 times, being once in relation to each of: a. the 3 Employees named in Schedule 1 who engaged in the 20 April Day Shift Rail Action; b. the 49 Employees named in Schedule 2 who engaged in the 20 April Evening Shift Action; c. the 30 Employees named in Schedule 3 who engaged in the 20 April Night Shift Action; d. the 44 Employees named in Schedule 4 who engaged in the 21 April Day Shift Action; e. the 5 Employees named in Schedule 5 who engaged in the 26 April Day Shift Rail Action; f. the 5 Employees named in Schedule 6 who engaged in the 26 April Night Shift Rail Action; g. the 5 Employees named in Schedule 7 who engaged in the 27 April Evening Shift Rail Action; and h. the 5 Employees named in Schedule 8 who engaged in the 1 May Day Shift Rail Action, or in the alternative, 8 times, being once with respect to each instance of the Port Botany Industrial Action. (iii) Contraventions by [Mr Keating] 207PP. By reason of the matters pleaded in paragraphs 207C-207O and 207S, [Mr Keating] organised action against [Patrick Holdings] in the form of the 1 May Day Shift Rail Action. 207QQ. By reason of the matters set out in paragraphs 207C-207D and 207S, [Mr McAleer] organised action against [Patrick Holdings], in the form of the 1 May Day Shift Rail Action, with the intent to coerce [Patrick Holdings] not to exercise its Rights to Direct at all. 207RR. Further or in the alternative to paragraph 207GG, by reason of the matters pleaded in paragraphs 26A, 26B, 207B, 207U and 207PP above, [Mr Keating] organised action against [Patrick Holdings], in the form of the 1 May Day Shift Rail Action, with intent to coerce [Patrick Holdings] to exercise its Rights to Direct in a particular way, namely in a manner different to that in which it would have exercised them in the normal course of its operations and in the absence of the Port Botany Industrial Action. 207SS. By reason of the matters pleaded in paragraphs 207PP-207RR above, [Mr Keating] contravened section 343 of the FW Act with respect to the 1 May Day Shift Rail Action. 207TT. Additionally and alternatively to paragraphs 207PP-207SS, by reason of the matters pleaded in paragraphs 3-4, 16-18, 26, 27A and 68-71B above, [Mr Keating] was involved in the contraventions of s 343 of the FW Act pleaded in paragraphs 207BB and 207CC above in relation to the 1 May Day Shift Rail Action in that he: a. aided, abetted, counselled or procured that action; and b. further and in the alternative, was directly or indirectly knowingly concerned in or party to that action. 207UU. In the premises, by reason of s 550 of the FW Act, [Mr Keating] is taken to have contravened s 343 of the FW Act 5 times, being once in relation to each of the 5 Employees named in Schedule 8, or in the alternative, once with respect to the Employees named in Schedule 8. 210 To illustrate the high level at which this issue was joined, it is then useful to set out the response in the Union's "Amended Defence" (which, in fact, was a defence to the third amended statement of claim). The pleading was as follows: F. SECTION 343 CONTRAVENTIONS 207X. The [Union] denies paragraph 207X. 207Y. The [Union] denies paragraph 207Y. 207Z. The [Union] denies paragraph 207Z. 207AA. The [Union] denies paragraph 207AA. 207BB. The [Union] denies paragraph 207BB. 207CC. The Union] denies paragraph 207CC. (i) Contraventions by [the Union] 207DD. The [Union] denies paragraph 207DD. 207EE. The [Union] denies paragraph 207EE. 207FF. The [Union] denies paragraph 207FF. 207GG. The [Union] denies paragraph 207GG. 207HH. The [Union] denies paragraph 207HH. 207II. The [Union] denies paragraph 207II. (ii) Contraventions by [Mr McAleer] 207JJ. The [Union] does not plead to paragraph 207JJ. 207KK. The [Union] does not plead to paragraph 207KK. 207LL. The [Union] does not plead to paragraph 207LL. 207MM. The [Union] does not plead to paragraph 207MM. 207NN. The [Union] does not plead to paragraph 207NN. 207OO. The [Union] does not plead to paragraph 207OO. (iii) Contraventions by [Mr Keating] 207PP. The [Union] does not plead to paragraph 207PP. 207QQ. The [Union] does not plead to paragraph 207QQ. 207RR. The [Union] does not plead to paragraph 207RR. 207SS. The [Union] does not plead to paragraph 207SS. 207TT. The [Union] does not plead to paragraph 207TT. 207UU. The [Union] does not plead to paragraph 207U. 207W. The [Union] dose not plead to paragraph 207W. 211 It suffices to note that both Mr McAleer and Mr Keating either did not plead to these various paragraphs to the extent that they did not contain allegations against them, or alternatively invoked their privilege against exposure to a civil penalty. 212 The written closing submissions made on behalf of the respondent did not engage with this aspect of the case at all, save for what was written at RS [65]-[66]: Section 340 and 343 So far as it is alleged the respondents contravened s 340 and s 343 by organising industrial action for the reasons pleaded by the applicants, they rely on the applicants' evidence. All of that evidence is contrary to the conclusion the applicants ask the Court to reach regarding the reasons of the respondents. Part of the evidence shows the union had an ongoing community and social media campaign against Patrick, connected with its restructuring of its operations, and not connected with the exercise or proposed exercise by it of any workplace right to direct its employees identified in the pleading. The balance of the evidence shows that Mr McAleer, like the employees, acted in accordance with a view as to the interpretation of the Agreement, and in particular, as to clause 1.3. So far as it is alleged that Mr McAleer and Mr Keating were complicit in contraventions of s 340 and s 343 by the employees, and therefore contravened those provisions by reason of the operation of s 550, they contend that s 361 does not avail the applicants as to their reasons. 213 With respect to all those involved, an allegation of coercion is a serious matter and, if the allegation is pressed, I consider the Court should receive greater assistance in determining the pleaded allegations set out above by reference to my evidentiary findings and the applicable law than I have thus far received. 214 I have made findings relevant to the allegations of contravention including that when the employees engaged in industrial action, they took "adverse action" (FW Act s 342(1), item 5(b)). In the circumstances, I intend to hear further argument as to this aspect of the case, if it is pressed, following the parties having regard to my findings of fact and law in relation to the balance of the liability issues in the case.

[11]

I ADDITIONAL QUBE ALLEGATIONS 215 In the Qube Proceeding, it is claimed that the Ban affected Qube across a number of shifts. This includes three occasions which are not the subject of any claims in the Patricks Proceeding. The three additional periods are: (a) 22 to 24 April 2017, during which period the Ban affected Qube on the 22 April 2017 day shift and 24 April 2017 day shift; (b) 27 April 2017 day shift; and (c) 2 to 8 May 2017. 216 The respondents contend, in part, there was no industrial action by any employees during some of this period on the evidence including, during part of these additional periods, because the employees who would otherwise have worked were absent from work due to illness. 217 There is, however, a more fundamental difficulty for the latter part of this period. As is evident from my findings, on 4 May 2017, the rail employees on the evening shift attended for work and performed work as directed by Patricks and back loaded empty containers. Although the Ban continued to have some consequential effect because of the prior cancellation of Qube trains, it is incorrect to elide the consequences of the Ban with the existence of the Ban itself. On any view of the evidence, it does not establish to the requisite degree that the Union or Mr McAleer engaged in, or organised, industrial action after 4 May 2017. This aspect of the Qube case founders on the evidence. 218 I now turn to the balance of Qube's separate case, being the existence of industrial action: (a) on the 22 April 2017 day shift and 24 April 2017 day shift; (b) during the 27 April day shift; and (c) after the day shift on 1 May 2017 and up until the commencement of work unloading empty containers from Sublease Area work on 4 May 2017. 219 In relation to the period 22 to 24 April 2017, Qube submits that there is no evidence that the Ban then was anything other than general in nature and not limited to the performance of work on any particular shift(s); the rail employees and the respondents were asserting reliance on clause 1.3 and the Court should infer, in the absence of any evidence to the contrary, that the position asserted and maintained from 20 April continued. Additionally, immediately prior to these dates, on 20 and 21 April, it is said the rail employees acted consistently with the Ban being in place by refusing specific directions to unload empty containers across a number of shifts. 220 Qube points to the evidence of Mr Guy to the effect that a decision had been made by Patricks not to require the rail employees to unload empty containers from trucks operated by Qube leading up to Anzac Day to avoid triggering the Ban and creating a situation of increased industrial hostility. Mr Guy further stated that he had expected the rail employees to continue to refuse to do the work the subject of the Ban based on his discussions with Mr McAleer, the events of the previous three days and that no employee had indicated a willingness to do the relevant work. It is noted that Mr Guy was not challenged on that evidence and that it was consistent with the evidence of Mr Graham as to a continuing Ban during the shifts on 22 to 24 April. 221 However, as the respondents correctly point out, Mr Coulton decided, on 21 April, to have the trains sent to Sydney Haulage. That decision was anterior to Mr Guy's decision, apparently made on the afternoon of 22 April, not to bring Qube trucks from the Container Park into the Rail Yard in the period leading up to Anzac Day. There was no relevant refusal in that period because the work was simply not required on those days. The norm contained in s 417 prohibits the organising or engaging in industrial action during the period between approval of an enterprise agreement and its nominal expiry date. I accept the respondents' submission that nothing was relevantly engaged in during the period from 22 April until Anzac Day and there could be no relevant refusal to perform work, or any other action in respect of work, which was not being required. Where no industrial action was engaged in, none could have been organised. 222 In relation to the 27 April day shift, the following was pleaded by Qube: 27 April 2017 (a) 27 April 2017 Day Shift 66. On 27 April 2017, those of the Rail Employees who were rostered on and attended for work during the day shift on 27 April 2017 failed and/or refused to unload empty containers which had been delivered from the Container Park to the Rail Yard on trucks operated by the Second Applicant, so that they could be loaded onto a train operated by the Third Applicant that was scheduled to depart the Rail Yard at 1.00 pm and travel to Narrabri (Eighth Train). 67. The Applicants were informed by Patrick Stevedores that the failure and/or refusal by those of the Rail Employees who were rostered on and attended for work during the day shift on 27 April 2017 to perform the Patrick Stevedores Services was contrary to a requirement that they perform such work and not authorised by Patrick Stevedores. Particulars i. Conversation between Mr Dan Coulton and Mr Bruce Guy (Terminal Manager for Patrick Stevedores) on 27 April 2017. 223 In response, in the Union's amended defence, a non-admission to paragraph 67 is pleaded, but in relation to the allegation at paragraph 66 the following is averred: 27 April 2017 (a) 27 April 2017 Day Shift 66. As to paragraph 66, the [Union] says: a. during the course of the 27 April 2017 Day Shift, some or all of the employees failed to unload containers from Qube Trucks; b. repeats the matters pleaded at paragraph 34(d) and paragraphs 36 (d), (e) and (f) above as to the loading and unloading of trucks entering the Rail Yard directly from the Container Park; and otherwise does not know and therefore cannot admit the balance of the paragraph. 224 Qube relies on the fact that subject to the No Industrial Action Contention, the fact of industrial action was admitted by the Union because of the admission that during the course of 27 April day shift some or all of the employees failed to unload containers from the Qube trucks. Although not referred to by Qube, as noted at [10] above, Exhibit J was a Statement of Agreed Facts by which Qube and the Union (but not Mr McAleer and Mr Keating) agreed as to a number of facts for the purpose of the proceedings pursuant to s 191 of the EA. One such fact was: 27 April 2017 Day Shift 32. On 27 April 2017, some or all of the Rail Employees who were rostered on and attended for work during the day shift on 27 April 2017 advised that they would not unload empty shipping containers transferred from the Container Park into the Rail Yard. 225 Apart from this admission, evidence as to what occurred during the day shift (in contradistinction to the evening shift on 27 April) is sparse. Qube relies on an inference that the Ban continued at all material times from 20 April. 226 Although I rejected this notion in the limited period leading up to Anzac Day, the notion that there was some other break in the Ban until it was lifted on 4 May is difficult to understand. A further admission (Exhibit J at [30]-[31]) was made by the Union as to some or all of the rail employees who were rostered and attended for work on the day and night shifts on 26 April advising that they would not unload empty shipping containers transferred from the Container Park into the Rail Yard. Mr Laroche gave specific evidence as to the evening shift employees on 27 April saying that they would not unload empty containers. 227 It seems to me tolerably plain that save for the one break established on the evidence by reason of no direction being made to work in the period between 22 April and Anzac Day, the Ban continued (and hence industrial action continued) during the whole of the period leading up to 4 May. As Qube correctly submits, this conclusion is the only explanation which is logically compatible with the reasons relied upon by the respondents to justify the Ban by the rail employees (which related to the direction to do the contested work generally). The concerns relied upon by the respondents applied during the whole of the period and it would be illogical to find or hold that such reasons applied only during certain shifts but not during other shifts in the same period (save for the period during which no direction was made to perform the relevant work). 228 In relation to the period 2-4 May 2017, the above reasoning applies. Qube also relies on letters issued to rail employees who were rostered to work the day shift on 1 May and who refused to unload empty containers which stated (Exhibit N 1975): Given your refusal to perform your duties as directed, Patricks is unable to usefully employ you on shift to perform the work which Patricks requires to be done. As such, I confirm you have been stood down without pay under section 524 of the [FW Act], effective from 02 May 2017. You will remain stood down without pay until such a time as you can be usefully engaged through performing your full duties". (emphasis added) 229 It is said the recipients of the letters refused to unload the Qube trucks on 1 May and, in the absence of evidence from the relevant employees, the only available inference is that the only matter that prevented the recipients of those letters from working after 1 May was their refusal to perform the work the subject of the Ban. It is also said that Mr Graham gave unchallenged evidence that Patricks was required to cancel the day shift on 2 May because those employees had refused to work as directed and therefore were stood down and that this continued to impact its operations until after 4 May. 230 Moreover, on 4 May, officers of the Union had exchanged emails and documents which indicated the continued dispute and failure of the rail employees to work as required. In particular, on 4 May from Mr Crumlin to Mr Tracey, a set of draft principles was provided for review with the objective of getting the rail workers "back to work" (Exhibit N 2016). Mr Crumlin emphasised that, in effect, the opportunity to achieve certain demands "won't last long if we don't get the blokes back to work". As a part of the industrial deal, the document which Mr Crumlin had drafted referred to the Union advising its members to work in accordance with the Enterprise Agreement. It can be inferred that as at 4 May, immediately prior to the employees starting unloading, this was a requirement that the Ban be "lifted"; logically, therefore, it must have been extant up until that time. 231 The respondents' contention to the contrary is unpersuasive. They rely on the fact that Mr Guy's evidence is that three of the employees in the Rail Yard advised him that they were going home sick due to stress on the afternoon of 1 May (Exhibit C at [270]). Later that day Mr Graham received medical certificates from a number of the rail team members covering periods up to 8 May (Exhibit A at [124]). Under clause 24.1 of the Enterprise Agreement, each permanent employee was entitled to leave to cover absences due to personal illness or injury. Under clause 24.7 of the Enterprise Agreement, it was open to Patricks to require any of the employees concerned to provide evidence supporting their claim for payment of personal leave, in accordance with the Award. 232 The respondents say there is no evidence that Patricks took the matter any further, and Patricks have no reason to query the genuineness of any employee's reason for failing to attend work. Given Patricks' concession that medical certificates were provided by the relevant employees, it is said it is "not open to Qube, in the absence of some direct evidence, to seek to question them". 233 With respect, this submission rather misses the point. It is true enough that the evidence demonstrates that some employees on some shifts (but not the particular employees who had been provided with the stand-down letters), provided Patricks with medical certificates saying that they were unfit to work. But the point is those employees were only asked to work because of the refusal of the day shift employees to work because of the Ban. For reasons I have already explained, the conclusion is irresistible, a fortiori in the absence of any evidence from the Union or the employees, that the Ban was in place, and industrial action was extant, during the period from 20 April up until 4 May (save for the limited period leading up to Anzac Day). Such a conclusion accords with both logic and the inherent probabilities.

[12]

J CONCLUSION AND ORDERS 234 In the introduction I referred to the byzantine relief sought, particularly in the Patricks Proceeding. Declaratory relief should be granted in order to reflect the fact that I have found that each of the respondents engaged in contravening conduct. Having said this, the declaratory relief should be expressed as simply and non-repetitively as possible. If it is regarded as necessary by Patricks, I will hear argument as to the coercion allegation on the basis of my findings with the assistance of submissions from the parties to the Patricks Proceeding. 235 I will adjourn both proceedings to a case management hearing 14 days after delivery of these reasons. I will make an order directing the parties to provide to my Associate agreed or competing short minutes of order before that hearing. 236 Having quelled the controversy in relation to the liability issues by making orders, ordinarily the next step would be to arrange for a determination of the balance of issues. Although I have not received submissions on the point, it is far from clear to me why injunctive relief is sought. Subject to hearing such submissions, the two matters the subject of any further evidence and then hearing will be the assessment of the statutory compensation and the question of whether or not there should be any order made imposing a pecuniary penalty. Obviously enough, the question of quantification of any compensation is logically anterior to the consideration of whether or not any pecuniary penalty should be imposed. This is because the amount that would be required to be paid to the applicants by way of compensation would be a relevant consideration as to whether or not any pecuniary penalty should be imposed and, if so, its quantum. 237 I have previously remarked that the protection against adverse costs orders in s 570 of the FW Act, while an important safeguard promoting access to justice, can, in some cases, encourage continued disputation in cases which should resolve: Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859; (2016) 272 IR 151 at 217-218 [280]. It also means some points which might otherwise be abandoned in other types of litigation, are run to the death. I have not reviewed any evidence as to whether or not any compensation would be significant, but real questions must arise as to the economics of the parties reconnoitring the materials to be deployed on a further hearing and resuming hostilities in the event that some pragmatic resolution is achievable. In this regard, I am conscious that the relationship between the protagonists transcends the matters presently canvassed. One would have thought that this broader relationship provides at least some possible scope for the resolution of the balance of the issues without further demand on public resources. 238 As presently advised, subject to hearing from the parties, when making orders reflecting these reasons, I would propose to make an order under s 53A of the Federal Court of Australia Act 1976 (Cth) referring the balance of these proceedings to a mediation by an identified mediator with such mediation to be conducted prior to any resumed hearing. I certify that the preceding two hundred and thirty-eight (238) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Parties

Applicant/Plaintiff:

Patrick Stevedores Holdings Pty Limited

Respondent/Defendant:

Construction, Forestry, Maritime, Mining and Energy Union

Legislation Cited (6)

Trade Practices Act 1974(Cth)

Evidence Act 1995(Cth)s 53, 136, 140

Fair Work Act 2009(Cth)ss 19, 340, 341, 343, 361, 363, 417, 421, 550, 562, 793

Fair Work (Registered Organisations) Act 2009(Cth)s 79

Federal Court of Australia Act 1976(Cth)ss 37P(2), 53A

Work Health and Safety Act 2011(NSW)

Cases Cited (65)

Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859; (2016) 272 IR 151 Briginshaw v Briginshaw (1938) 60 CLR 336 Chong & Neale v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; (2016) 241 FCR 338 Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146; (2018) 281 IR 319 Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; (2017) 92 ALJR 106 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; (2016) 152 ALD 209 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37, (2015) 228 FCR 346 Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Gill v Donald Humberstone & Co Ltd [1963] l WLR 929 Giorgianni v The Queen (1985) 156 CLR 473 Jones v Dunkel (1959) 101 CLR 298 Kucks v CSR Limited (1996) 66 IR 182 Mealey v Power [2015] NSWSC 1678 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [215] HCA 37; (2015) 256 CLR 104 Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452; (2006) 161 IR 9 Whitlam v Australian Securities and Investments Commission [2003] NSWCA 183; (2003) 57 NSWLR 559

A INTRODUCTION 1 There are two proceedings before the Court. 2 But for the reorganisation of the Maritime Union of Australia (MUA) and the statutory substitution of the Construction, Forestry, Maritime, Mining and Energy Union as the first respondent in both proceedings, the style of cause of this matter would have stirred the memory of industrial lawyers of famed battles past. Unlike its famous 1998 predecessor, however, this dispute is of a much more limited and narrow focus. 3 The first proceeding (Patrick Proceeding) was commenced by Patrick Stevedores Holdings Pty Limited (Patrick Holdings) and a related company, Patrick Stevedores Operations Pty Ltd (Patrick Operations), being the main trading entity of the corporate group that conducts a business of operating container stevedoring terminals, including at Port Botany, in New South Wales (Terminal). Patrick Holdings employs those carrying out stevedoring operations at the Terminal (employees) including employees who were rostered to work in the rail yard within the Terminal (rail employees), and Patrick Operations contracts with external service providers at the Terminal and with rail and stevedoring customers. Unless it is necessary to distinguish between entities in the group, I will refer to these entities collectively as Patricks. 4 The second proceeding (Qube Proceeding) was commenced by Qube Logistics (NSW) Pty Ltd, Qube Logistics (SB) Pty Ltd and Qube Logistics (Rail) Pty Ltd (collectively, Qube). The companies are involved in the business of providing transport logistics services to importers and exporters in relation to containerised and other freight. The transport logistics services include the transportation of containerised and other freight and empty containers by road and rail to locations within Australia as required by the customers of Qube. 5 As I have already noted, the Construction, Forestry, Maritime, Mining and Energy Union is the first respondent in both proceedings. By an amalgamation in March 2018, the MUA was deregistered and the Construction, Forestry, Maritime, Mining and Energy Union was formed as the "amalgamated organisation" of which members of the MUA became members (for a discussion of the details of the process of amalgamation see Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223). Relevantly, for present purposes, s 79(a) of the Fair Work (Registered Organisations) Act 2009 (Cth) operates so as to substitute the amalgamated organisation as a respondent in both proceedings: see s 79(b). For the sake of convenience, unless the context requires otherwise, I will refer to the first respondent to both proceedings as the Union. 6 At all relevant times, the second respondent (Mr Paul McAleer), was the Secretary and the third respondent (Mr Paul Keating), was the Deputy Secretary, of "the Sydney Branch of the Maritime Union of Australia". Approximately 90% of the employees are members of the Union. 7 In the Patrick Proceeding, it is alleged that the Union and Mr McAleer organised and were involved in industrial action that took place at the Terminal during various shifts between 20 April and 1 May 2017. As against Mr Keating, it is said that he organised and was involved in industrial action during the day shift on 1 May 2017. During the period between 20 April and 1 May 2017, it is alleged, a ban, limitation and restriction was imposed on the performance of work by the rail employees; additionally, it is said, for three consecutive shifts beginning with the evening shift of 20 April 2017, there was a failure and refusal of almost all employees at the Terminal to perform any work. For reasons expanded upon below, it is contended that the Union and Mr McAleer each contravened ss 417(1), 421(1), 340(1) and 343(1) of the Fair Work Act 2009 (Cth) (FW Act). The same allegations are made against Mr Keating, but limited to the day shift on 1 May 2017. 8 Similarly, in the Qube Proceeding, it is alleged the same employees engaged in industrial action within the meaning of s 19(1) of the FW Act on a number of occasions during the period commencing with the 20 April 2017 day shift, and ending with the night shift, on 8 May 2017 and that the Union and Mr McAleer organised the industrial action or were involved in the action within the meaning of s 550 of the FW Act. The same allegations are made against Mr Keating limited to the day shift on 1 May 2017, as in the Patricks Proceeding. 9 A bewildering and complex range of relief is sought, but it is unnecessary to deal with it all in this judgment. Following complaints made about the tardy service of material going to issues of loss said to have been occasioned by the alleged contravening conduct, on 20 July 2018, I made orders pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth), which, in effect, provided for the deferral of all issues of pecuniary penalty, injunctive relief and compensation. Accordingly, the initial hearing was directed to the issue of whether the applicants had established that the respondents engaged in the contraventions of the FW Act alleged. I will address the question as to whether such contraventions have been established under the following headings: Section B Observations on the Evidence Section C The Relevant Events: Findings Section D The Case of Patricks and Qube Section E An Overview of the Contentions of the Respondents Section F The Organisation of the Ban Section G Consideration and Findings as to Contravening Conduct Section H Additional Patricks' Allegations Section I Additional Qube Allegations Section J Conclusion and Orders

B.1 The Evidence Adduced 10 Evidence in one proceeding was evidence in the other. Apart from a Statement of Agreed Facts (which became Exhibit J), some admissions made by the respondents (Exhibit K and L), a bundle of contemporaneous business records were received into evidence (Exhibit N). As will become evident, these contemporaneous records and the inferences to be drawn from them assume some importance in determining the relevant facts, many of which are not in dispute. This is unsurprising, as it is the review of such contemporaneous emails and other documents as may exist, and the probabilities that can be derived from those materials, that provide the best foundation for fact-finding: Mealey v Power [2015] NSWSC 1678 at [4] (Pembroke J); see also Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [22] (Leggatt J). 11 Additionally, a number of witnesses were called in the cases of the applicants. Each gave brief oral evidence, witness statements were tendered and each were cross-examined (although a significant portion of the relevant events and chronology was not the subject of challenge). The witnesses called were: Mr Jarrod Graham, who at relevant times was the Automation and Landside Manager for Patricks, and whose three statements went into evidence as Exhibits A, B and QA; Mr Bruce Guy, who is the Terminal Manager for Patricks, and whose three statements went into evidence as Exhibits C, D and Q2; Mr Luke Frawley, who is the National HSE Manager for Patricks, and whose two statements went into evidence as Exhibits E and F; Mr Daniel Laroche, who at relevant times was the Logistics Manager for Patricks, and whose statement went into evidence as Exhibit G; Mr Angus May, who is the Operations Manager for Patricks, and whose statement went into evidence as Exhibit H; and Mr Daniel Coulton, who is the General Manager, Industrial Relations for Qube, and whose two statements went into evidence as Exhibits Q3 and Q4. 12 Additionally, three affidavits were read by the applicants (T390-391) without objection and without the deponents being required for cross-examination: Ms Maria Zoras-Christo, Mr James Denham and Mr David Fox. Further, on 3 September 2018, a view of the Terminal was conducted pursuant to s 53 of the Evidence Act 1995 (Cth) (EA). 13 At a time immediately following the closure of the cases of Patricks and Qube (T392), I adjourned briefly to allow counsel for the respondents, Mr Reitano, to consider the course he wished to take in relation to the further conduct of the proceedings. Upon resumption, Mr Reitano informed the Court that he did not seek any adjournment and indicated that he intended to adduce no evidence in the respondents' case. As I will later explain, a further opportunity was provided to the respondents to adjourn and adduce evidence when s 136 EA limitations were formalised in relation to an important aspect of the documentary case. Again, no adjournment was sought, nor were witnesses called. Accordingly, neither Mr McAleer nor Mr Keating gave their account of what occurred; nor did any of the employees. In the light of the forensic decision to call no witnesses, before coming to my factual findings based on the evidence identified above (and the inferences to be drawn from that evidence), it is useful to pause to make some remarks about the principled approach to fact-finding in circumstances such as the present.

B.2 Fact Finding and the State of Satisfaction Required 14 It is trite that both Patricks and Qube are required to prove their case on this liability hearing to the civil standard having regard to the degree of satisfaction required by s 140 of the EA. This section requires the court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct): see EA s 140. 15 Importantly, the factual allegations made by both Patricks and Qube are not only foundations for the nature of the relief dealt with at this liability hearing (that is, declarations of contraventions of the FW Act), but are also the foundations for the deferred relief, that is, the imposition of pecuniary penalties. 16 It is well-established that s 140 reflects the common law as explained seminally by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. As the Full Court noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at 480 [30]-[32] (Weinberg, Bennett and Rares JJ): The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion. Even though he spoke of the common law position, Dixon J's classic discussion in Briginshaw…at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the [EA] now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that (Briginshaw 60 CLR at 361-262): 'No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But 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... Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363). 17 It is also clear that so-called "Briginshaw principles" apply to civil penalty proceedings (which is a particular example of the application of s 140(1) of the EA): see Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ACSR 504 at 533-534 [142]-[148] (Giles JA); Whitlam v Australian Securities and Investments Commission [2003] NSWCA 183; (2003) 57 NSWLR 559 at 592 [117]-[119] (Hodgson, Ipp and Tobias JJA). 18 It follows that for the applicants to succeed I am required to reach a state of satisfaction or an actual persuasion that Patricks and Qube have proved their allegations of contravention, while taking into account the seriousness of the allegations and the gravity of the consequences that could follow if the allegations were to be accepted.

B.3 Jones v Dunkel and Civil Penalties 19 It is next appropriate to turn to the decision not to adduce evidence of Mr McAleer or Mr Keating (or evidence of any of the employees). How is this absence of evidence to be used, if at all, in determining whether I have reached the required standard of satisfaction or actual persuasion? 20 Both Patricks and Qube place reliance on the Court being in a position to infer that the evidence of Mr McAleer or Mr Keating (or those of the employees who had dealings with them) would not assist the respondents' case: relying generally on Jones v Dunkel (1959) 101 CLR 298. The relevant authorities were not, however, examined in any detail. Given the importance of ensuring that any inferential reasoning occurs in accordance with authority, it is necessary to examine the principled approach to drawing any inferences and the scope of any such inferences. 21 The availability of what might be loosely called a Jones v Dunkel inference in the context of a civil penalty proceeding has been the subject of some discussion. In Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; (2017) 258 FCR 257, the Full Court (North, Dowsett and Rares JJ) observed at 302 [147]: The appellants submit, without reference to any supporting authority that the rule in Jones v Dunkel ought not apply in circumstances in which penalty privilege has been claimed. There are authorities to the contrary. See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at [76] per Weinberg, Bennett and Rares JJ, see too at [28]; Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 at [659]-[661] per Giles JA, Mason P and Beazley JA concurring. See also Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586; (2009) 264 ALR 201 at [85]-[100] per Gilmour J and the considered, although tentative view of the Victorian Court of Appeal in Chong v CC Containers Pty Ltd [2015] VSCA 137 at [213]-[229]. We proceed upon the basis that the rule in Jones v Dunkel may be applied in pecuniary penalty proceedings... 22 The "considered" view of the Victorian Court of Appeal in Chong & Neale v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402 (Redlich, Santamaria and Kyrou JJA) referred to by the Full Court, merits close examination. Unlike the present case, in Chong, Mr Neale (the party who did not give evidence) had expressly "claim[ed] and reserve[d] his right to claim penalty privilege and self-incrimination privilege": see Chong at 465 [213]. In the present case, no privilege was expressly claimed or articulated as the reason why Mr McAleer or Mr Keating did not give evidence (although for reasons I will shortly explain, this is not really to the point). 23 In any event, in Chong, the Court of Appeal noted the following at 464 [212]: In Dilosa v Latec Finance Pty Ltd [No 2] [[1966] 1 NSWR 259, 277], Street J recognised that where the absent witness is a party then considerable importance may well attach to the inference that nothing which the party could say would assist his or her case. As Gleeson CJ said in [Azzopardi v The Queen (2001) 205 CLR 50, 64-5 [34]] the judgments in Weissensteiner recognise that the inference that may be drawn from the silence of a party to civil litigation may be significant [at 61 [18]]. Santow J drew such an inference in ASIC v Adler [[2002] NSWSC 171; (2002) 168 FLR 253] because the parties who were available and not called had a personal involvement in the transactions in question [at 361 [448]]. Where a party elects not to give evidence 'the court is entitled to be bold' [SS Pharmaceutical Co Ltd v Qantas Airways Ltd [1991] 1 Lloyd's Rep 288, 293 (Gleeson CJ and Handley JA), citing Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39, 49 (Rich J)]. As Heydon, Crennan and Bell JJ stated in Kuhl v Zurich Financial Services Australia Ltd [[2011] HCA 11; (2011) 243 CLR 361] the rule has a particular application where it is the party which is the uncalled witness and may permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn [ibid 384-5, citing Dilosa v Latec Finance Pty Ltd [No 1] [1966] 1 NSWR 255, 276-7; ASIC v Fortescue Metals Group Ltd [No 5] [2009] FCA 1586; (2009) 264 ALR 201, 225. See also Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121, 142-3 [51]; Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (Handley JA); Oran Park Motor Sport Pty Ltd v Fleissig [2002] NSWCA 371 (Hodgson JA, with whom Beazley JA and Einstein J agreed); State Bank of NSW v Brown (as liq of Parkston Ltd (in liq)) [2001] NSWCA 223; (2001) 38 ACSR 715, 718 [17]-[18] (Spigelman CJ); Manly Council v Byrne [2004] NSWCA 123, [50]-[55] (Campbell J, with whom Beazley JA and Pearlman AJA agreed); Mamo v Surace [2014] NSWCA 58; (2014) 86 NSWLR 275 (McColl JA). 24 After referring to the principle that it is not permissible to draw any inference adverse to a witness from the reliance of the witness on a claim of privilege against self-incrimination, the Court considered Mr Neale's submission that the process of inferential reasoning in Jones v Dunkel is not available where the absence of evidence is the result of a claim of privilege. In doing so, their Honours observed that although no adverse inference may be drawn from the refusal of a witness to answer a question on the ground that the answer may, or would, tend to incriminate the witness, what the Court was concerned with was something quite different and logically distinct: the inferences that may properly be drawn as a result of the absence of evidence from that witness. The Court referred to a number of cases, including the consideration of the issue by Gilmour J in Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586; (2009) 264 ALR 201 at 224 [96], where his Honour explained that nothing had been said by the High Court that would extend the general proscription in criminal trials against engaging in inferential Jones v Dunkel reasoning to civil penalty proceedings: see also Australian Securities and Investments Commission v Geary [2018] VSCA 103; (2018) 126 ACSR 310 (Ferguson CJ, Weinberg JA and Sifris AJA) at 345-346 [233]-[235]. 25 Having explained that inferential Jones v Dunkel reasoning is applicable to proceedings such as the present which involve a claim for the imposition of a civil penalty, the question becomes: what does this inferential reasoning involve? 26 In Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 at 412-413 [165]-[167], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ discussed the evidentiary consequences of a party failing to call a witness, as follows: Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly had been led. Principles governing the onus the standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken into account in determining whether a party has proved its case to the requisite standard... Lord Mansfield's dictum in Blatch v Archer that '[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted' is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for 'it would have been very improper to have called' the person whose account of events was not available to the court. This Court's decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her behalf and on behalf of the deceased driver's dependents. The plaintiff's case depended on demonstration that the other driver's negligence was a cause of the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant's vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The Court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the Court held 'that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn where a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.' 27 Further, at 432 [232], Heydon J explained the inferences that may be drawn from the failure of a witness to be called: One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party. (emphasis added) 28 Put another way, the rule does not enable the absence of evidence of a witness (party or non-party) to make up any deficiency of evidence and it will not support an adverse inference unless the evidence otherwise provides a basis on which that unfavourable inference can be drawn. But where evidence has been left uncontradicted, any inference favourable to a party for which there was a basis in the evidence, might be more confidently drawn when a person, presumably able to put the true complexion on the facts relied on as the ground for the inference, has not been called as a witness and the evidence provides no sufficient explanation of that person's absence. Here I pause to note that no attempt was made to explain the absence of evidence of any witness on behalf of the respondents. 29 With these principles in mind, I now turn to my findings as to what in fact relevantly occurred. Although I have thought it appropriate to explain the principled approach at some length, determining what actually occurred in this case does not create significant difficulties. This is for three reasons: first, as will become evident, this case is not so much about disputes regarding the underlying facts proved in the evidence as it is about the characterisations of the facts and legal conclusions to be drawn from the facts that emerge from the documents and the evidence given by the witnesses called in the applicants' cases; secondly, when it comes to an assessment of the documents (including telephone records), the picture that emerges, particularly as to the organisation of events and involvement of Mr McAleer (and to a more limited extent, Mr Keating), is not attended by any real doubt; and thirdly, much evidence given by important Patricks witnesses as to the happening and timing of events was not the subject of challenge.

I Organising 92 Section 417 is directed to both "organising" and "engaging in" industrial action but given the discontinuance of proceedings against the employees, it is only the former concept which remains directly relevant. I will return to the definition of "industrial action" below, but s 417 relevantly provides as follows: Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc. No industrial action (1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which: (a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or (b) a workplace determination comes into operation until its nominal expiry date has passed; whether or not the industrial action relates to a matter dealt with in the agreement or determination. (2) The persons are: (a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or (b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity. *** 93 The term "organise" is not defined in the FW Act (nor for that matter, is the term "engage"). It follows that the verb is to be given its ordinary meaning having regard to the object and purpose of the provisions in which it appears: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 at 326 [144]. 94 What is evident from the authorities is that while being a passive observer of conduct is not sufficient to have constituted organising action, the concept of "organisation" may involve a variety of forms, so long as it involves positive conduct which is intended to, and does, induce others to engage in conduct (Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; (2016) 241 FCR 338 at 348 [53]). It can take the form of marshalling or rallying employees through "a number of discrete acts directed at achieving cohesiveness in a result": see Robinson at 348 [53]. 95 In BHP Coal at 326 [144]-[146], the Full Court (Logan, Bromberg and Katzmann JJ) observed: The word "organised" as Isaac J said in Pirrie v McFarlane (1925) 36 CLR 170 at 203 "is in itself of large connotation". However, it is not the type or extent of the conduct falling within the scope of the word that we need here to consider but rather the sense in which it has been employed in s 417(1) of the FW Act. The conduct prohibited by s 417(1) is the organisation or engagement in industrial action... The mischief with which s 417(1) is concerned is that industrial action not occur in the period from which an enterprise agreement (or workplace determination) is approved (or comes into operation), until the time that the nominal expiry date of the instrument has passed. The evident intent is to ensure that that period is free of industrial action. The intent is reflected in the heading to Div 3 of Pt 3-3, the only provision of which is s 417. The heading reads "No industrial action before nominal expiry date of enterprise agreement etc."

II Involvement in contraventions 96 Section 550 provides as follows: Involvement in contravention treated in same way as actual contravention (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. … (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. 97 As North and Bromberg JJ explained in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346 at 404 [253]-[254]: The nature of the liability imposed by s 550(1) (in the context of the meaning of "involved in" set out in s 550(2)), was explained by Tamberlin, Gyles and Gilmour JJ in Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 at [26] as follows: Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct - the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479-480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words "party to, or concerned in" reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E-308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588; 112 IR 388 at [34], must participate in, or assent to, the contravention. The requirements of what was then s 75B of the Trade Practices Act 1974 (Cth) were considered by the High Court in Yorke v Lucas (1985) 158 CLR 661. The terms of the former s 75B are the same as those found in s 550(2) of the FW Act. A wide range of elements are identified by the four sub-paragraphs of s 550(2). … 98 The requirement is that there be a practical connexion between the person said to be involved and the contravention: Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; (2016) 152 ALD 209 at 347 [950] per Katzmann J. 99 As is well known from the many cases in which the relevant principles have been explained, the notion of someone having "aided, abetted, counselled or procured" requires that a person involved must have intentionally participated in an act and must have knowledge of the essential matters which go to make up the contravention (although it is not necessary for the person to have knowledge that those matters constitute a contravention: see, for example, Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176] per White J). 100 For a person to be "knowingly concerned in or party to the contravention" for the purposes of s 550(2)(c), the person must have been an intentional participant with knowledge at the time of the contravention of the essential elements constituting the contravention and actual knowledge is required - mere constructive or imputed knowledge is not sufficient, however, actual knowledge may be inferred from "exposure to the obvious": see Giorgianni v The Queen (1985) 156 CLR 473 at 507-508.

III The Proper Construction of Clause 1.3 138 There is no dispute between the parties as to the principled approach to construction and it does not require lengthy excursus. The respondent placed reliance on the observations of Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184 (which were cited with approval Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at 270-271 [96] (Kirby J), 282-283 [129]-[130] (Callinan J) as follows: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. 139 It is important to have regard to the industrial purpose of the agreement and the commercial and legislative context in which it applies when construing it, including the clause itself, and parts of the agreement referred to in the clause as a whole: see Amcor Limited v CFMEU at 249 [13] per Gleeson CJ and McHugh J, 253 [30] per Gummow, Hayne and Heydon JJ, 270-271 [96] per Kirby J, and 282-283 [129]-[131] per Callinan J. 140 Of course, this really amounts to a particular example of more general principles, such that provisions of agreements are to be construed in light of practical considerations to achieve the most reasonably practicable result (see Gill v Donald Humberstone & Co Ltd [1963] l WLR 929 at 934-935 (Lord Reid)) and the cardinal rule that the rights and liabilities of parties under a provision of an agreement are determined objectively, by reference to its text, context (the entire text of the agreement as well as any document or statutory provision referred to in the text) and the purpose or objects to be secured. The appreciation of the purpose or objects is, of course, facilitated by an understanding of the genesis of the agreement or transaction, the background, and the context in which the parties are operating: see, for example, Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [215] HCA 37; (2015) 256 CLR 104 at 116 [46]-[52] (French CJ, Nettle and Gordon JJ). 141 Applying this approach, although maladroitly drafted, I think the meaning of clause 1.3 is tolerably clear. Without obscuring or distorting context or meaning, it can be broken down into the following component parts: in the event that "as a consequence" of Patricks either: (a) directing employees to work differently to accepted practice; or (b) a suspected breach of the Enterprise Agreement (that is, a Work Change Dispute or a Suspected Breach Dispute) exists; work in the Terminal by the employees is to continue as it existed prior to the dispute arising for a defined period (being 72 hours); during this defined period, a discussion is to take place between identified representatives of Patricks and the Union (or their nominated representatives); if, following such a discussion, Patricks then proceeds to direct the employees to carry out work "contrary to the terms" of the Enterprise Agreement or accepted practice (being the practice as it existed prior to the dispute arising), then a certain state of affairs is to exist; that state of affairs is that the then current position continues, that is, work continues as it existed prior to the dispute arising to allow the "matter" to proceed through the DRP (which necessarily contemplates the "matter" can proceed in accordance with the DRP); this state of affairs continues until the "matter" (that is, the continuing dispute) has been determined through the DRP; and this is all subject to a proviso (not suggested to be relevant here) that the regime has no application "where there has been genuine [prior] consultation under the consultation and change clause". 142 In order to understand how clause 1.3 is to be construed, however, in accordance with the principles I have explained, the operation of the clause cannot be divorced from the Enterprise Agreement as a whole including, critically, the terms of the DRP. Notwithstanding its length, it is necessary that the DRP be set out in full: SCHEDULE 1 - DISPUTE RESOLUTION PROCEDURE 1. In the event of a dispute arising in the workplace in regard to the application of this Agreement, the National Employment Standards, or any matter pertaining to the employment relationship (including Company policy) the procedure to be followed to resolve the matter shall be as follows: Step 1 workplace discussions 2. The parties shall attempt to resolve the matter at the workplace level within 7 days by: 2.1. An Employee, the Employee's representative (if requested), and their supervisor meeting and conferring on the matter; and 2.2. If the matter is not resolved the matter will be raised at senior levels of management, employee representatives and Union officials (as appropriate). Step 2 National/eve/ discussions 3. If the matter cannot be resolved at workplace level, the matter may be referred by either party to National level for discussion between the parties. Step 3 Fair Work Commission 4. If the matter cannot be resolved at National level, either party may refer the matter to the Fair Work Commission (FWC) or such other tribunal as may replace it. The FWC may deal with the dispute in 2 stages: 4.1. The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and 4.2. If the FWC is unable to resolve the dispute at the first stage, and at the request of either party, the FWC may, subject to there being no industrial action occurring or having occurred in relation to the matter at hand: (i) arbitrate the dispute; and (ii) make a determination that is binding on the parties. 4.3. If the FWC arbitrates the dispute: (i) It may also use the powers that are available to it under the Act, and (ii) An appeal may be made against the decision. 4.4. While the parties are trying to resolve a dispute in good faith using the procedures in this clause, the FWC has the power to issue an interim determination which may include an order requiring that, while the parties are trying to resolve the dispute using the procedures in this term, work will continue under the conditions and arrangements that existed before the dispute arose pending finalisation of the dispute (interim determination). 4.5. In deciding whether to make an interim determination, the FWC must have regard to all relevant circumstances, including, where relevant: (i) the strength of the case (at final arbitration) of the party seeking the interim determination; (ii) the respective consequences for each party of an interim determination being made, or not made, as the case may be; (iii) the conduct of the parties in relation to the dispute, including, where relevant, the conduct of the parties in respect of clause 14 of this Agreement; and (iv) any other matters that the Commission considers relevant. 4.6. Nothing in this sub-clause prevents either Party from seeking an interim order or stay pursuant to the FW Act. 4.7. An interim determination is binding on the parties. 5. Either Party may refer the dispute to FWC at any stage of the procedure if the procedure is not being followed or is otherwise inappropriate in the circumstances. 6. While the parties are trying to resolve the dispute using the procedures in this term: 6.1. Employees will continue to perform their work as they normally would unless there is a reasonable concern about imminent risk to their personal safety. 6.2. If an employee has stopped work due to an imminent risk to their health or safety, the employee will comply with a direction given by the Company to perform other available work on full pay at the same workplace, unless: 6.2.1 the work is not safe; or 6.2.2 applicable occupational health and safety legislation would not permit the work to be performed; or 6.2.3 there are other grounds upon which the direction is not reasonable. 7. The parties must co-operate to ensure that the dispute resolution procedures are carried out as quickly as is reasonably possible. 143 What is evident from the above, is that as one might expect given the context, the procedure contemplates a process where industrial harmony is to be preserved (see clause 6). While the DRP is in operation (and the parties are trying to resolve the dispute), employees are to perform work "as they normally would" unless there is a reasonable concern about personal safety. The DRP puts in place a process of cooperation to ensure the facilitation of the DRP (clause 7). During the DRP procedure, discussions are to take place at a lower level for seven days (Step 1), or if the matter cannot be resolved at the workplace level then the matter is escalated (Step 2). Failing efforts by the parties to resolve the dispute without outside intervention, either party may then refer the matter to the FWC with the DRP contemplating a process of mediation, conciliation or neutral evaluation (clause 4.1) or, in the absence of quelling the dispute by these means, resolution by arbitration or determination. 144 Importantly, focussing on this last step, clause 4.2 provides that if the matter is unable to be resolved at the first FWC stage, the final step of arbitration or determination by the FWC is "subject to there being no industrial action occurring or having occurred in relation to the matter at hand". Implicit in this, of course, is the premise that during the DRP process leading up to the final step, there would be no industrial action taking place. This premise is further reinforced by the text of clause 1.3. It is important to recall the reference in clause 1.3 to "the matter [having] been determined through the [DRP]"; hence clause 1.3 presupposes that the relevant dispute is one that capable of being determined by the FWC at the relevant step of the DRP (being clause 4.2). A dispute capable of being determined pursuant to the DRP was (having regard to the terms of clause 4.2) one where industrial action had not occurred "in relation to the matter". 145 It seems to me therefore that it is fairly obvious that clause 1.3 and the DRP operate harmoniously to contemplate a process which involves work continuing during the duration of the process while all efforts are taken for the dispute to be resolved consensually or, failing some form of paction, for the dispute to be determined by the FWC provided no industrial action had occurred or is occurring in relation to the "matter". 146 I reject the notion that clause 1.3 is applicable to disputes which the parties contemplated would, by their nature, not be subject to the DRP. Of course, it may not be necessary to engage in the DRP because the controversy may be resolved in the 72 hour consultation window, but the clear intention of the parties was that the "matter" must be capable of DRP resolution if the initial consultation fails to achieve resolution. 147 If a relevant dispute arises, it follows that while the "matter" remains capable of resolution through the DRP, Patricks cannot insist on directing employees to carry out work contrary to the terms of the Enterprise Agreement or accepted practice, however, such a restriction does not apply when clause 1.3 has no work to do because the "matter" is no longer capable of being determined through the DRP. 148 When the proper construction of clause 1.3 is properly understood and applied to the facts as found, the No Industrial Action Contention falls away.

[2018] VSCA 103

[2015] VSCA 137

(2017) 258 FCR 257

(2005) 222 CLR 241

(2017) 249 FCR 458

(2018) 277 IR 75

(2009) 264 ALR 201

(2016) 272 IR 151

(1938) 60 CLR 336

(2015) 49 VR 402

(2015) 230 FCR 298

(2007) 162 FCR 466