United Group Resources Pty Ltd v Calabro

Counsel for the CEPU and CFMEU Respondents: J Fiocco

Counsel for the AMWU Respondents: RL Hooker

Counsel for the Seventy-Second Respondent: The Seventy-Second Respondent appeared in person

Solicitor for the Respondents: As listed in the Respondents' schedule 'A' to United No 5

Counsel for the Intervener: IM Neil SC

Solicitor for the Intervener: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION WAD 14 of 2010

BETWEEN: UNITED GROUP RESOURCES PTY LTD ABN 17 114 888 201

DOWNER EDI ENGINEERING POWER PTY LTD ABN 53 000 983 700

MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD ABN 52 008 861 836

RCR CONSTRUCTION & MAINTENANCE PTY LTD ABN 97 063 053 814

AND: BRAEDEN CALABRO AND OTHERS AS LISTED IN THE RESPONDENTS' SCHEDULE 'A' TO UNITED NO 5

AND: THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

JUDGE: MCKERRACHER J DATE OF ORDER: 2 MAY 2012 WHERE MADE: PERTH

1. The applicants be granted leave to discontinue the proceeding against respondent 254. 2. The orders made on 30 September 2011 be set aside insofar as they state that respondent 1215: (a) engaged in industrial action within the meaning of s 19 of the Fair Work Act 2009 (Cth) (FW Act) on 27, 28 and 29 January 2010; (b) engaged in building industrial action within the meaning of s 36(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) on 27, 28 and 29 January 2010; and (c) contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 27, 28 and 29 January 2010. 3. The orders made on 30 September 2011 be set aside insofar as they state that respondent 404: (a) engaged in industrial action within the meaning of s 19 of the FW Act on 25 and 30 January 2010; (b) engaged in building industrial action within the meaning of s 36(1) of the BCII Act on 25 and 30 January 2010; and (c) contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 25 January and 30 January 2010. 4. The orders made on 30 September 2011 be set aside insofar as they state that respondent 593: (a) engaged in industrial action within the meaning of s 19 of the FW Act on 25, 27, 28 and 29 January 2010; (b) engaged in building industrial action within the meaning of s 36(1) of the BCII Act on 25, 27, 28 and 29 January 2010; and (c) contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 25, 27, 28 and 29 January 2010. 5. The orders made on 30 September 2011 be varied and set aside only insofar as they state that respondent 176: (a) engaged in industrial action within the meaning of s 19 of the FW Act on 22 January 2010; (b) engaged in building industrial action within the meaning of s 36(1) of the BCII Act on 22 January 2010; and (c) contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 22 January 2010. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION WAD 14 of 2010

BETWEEN: UNITED GROUP RESOURCES PTY LTD ABN 17 114 888 201

DOWNER EDI ENGINEERING POWER PTY LTD ABN 53 000 983 700

MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD ABN 52 008 861 836

RCR CONSTRUCTION & MAINTENANCE PTY LTD ABN 97 063 053 814

AND: BRAEDEN CALABRO AND OTHERS AS LISTED IN THE RESPONDENTS' SCHEDULE 'A' TO UNITED NO 5

AND: THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

JUDGE: MCKERRACHER J DATE: 2 MAY 2012 PLACE: PERTH

INTRODUCTION 1 In United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408 (United No 5), I gave reasons for orders made on 30 September 2011 (the Orders) in this proceeding in which there were then 1,336 respondents. Certain changes have occurred in consequence of which amendments have been made to the Orders then proposed. I should record briefly the reasons for amending those Orders (adopting the same abbreviations as were used in United No 5). 2 Of the 1,336 respondents to the proceeding: (a) 406 were represented by Fiocco's Lawyers and were members of the Construction Forestry Mining & Energy Union (CFMEU); (b) 81 were represented by Fiocco's Lawyers and were members of the Communications Electrical & Plumbing Union (CEPU); (c) 235 were represented by Gibson & Gibson and were members of the Australian Manufacturing Workers Union (AMWU); and (d) 614 were non-appearing respondents. 3 Since the making of the Orders, one of the respondents has died and 31 of the non-appearing respondents have entered an appearance. Of those 31 respondents who have entered an appearance, 12 are represented by Fiocco's Lawyers, nine are presented by Gibson & Gibson. There are ten others, nine of whom are not represented by legal practitioners. One is represented by 'Stacks The Law Firm'. 4 In consequence, there are now 1,335 respondents to the proceeding as a notice of discontinuance has been filed in relation to the respondent who has died. Of those respondents: (a) 417 are represented by Fiocco's Lawyers and are members of the CFMEU; (b) 81 are represented by Fiocco's Lawyers and are members of the CEPU; (c) 244 are represented by Gibson & Gibson and members of the AMWU; (d) 583 are non-appearing respondents; (e) nine have entered an appearance and are not represented by legal practitioners; and (f) one has entered an appearance and is represented by Stacks The Law Firm. 5 The following further matters arise. There is an application for leave to discontinue the whole of the claim against respondent 254 in light of the fact that he has died between the making of the orders and the amendment of the orders. There is also an application to have the orders set aside in limited respects to take into account further information that has come to light. That information favours the position of respondents who are not represented. Ten respondents have filed a notice of appearance since the orders were made. They are not represented. 6 There are also substantial considerations concerning final relief which will be addressed in separate final reasons.

Leave to discontinue against respondent 254 7 Mr Paul Moyes was respondent 254 and represented by Fiocco's Lawyers. 8 The applicants have advised that they do not wish to exercise their right to seek an order under O 6 r 10(2) of the former Federal Court Rules (former Rules) for the proceedings against Mr Moyes to be continued against his personal representative following his death (pursuant to r 1.04 of the Federal Court Rules 2011 an order was made at the commencement of the hearing in September 2011 to the effect that the former Rules would continue to apply to steps taken in these proceedings in or after 1 August 2011). 9 The applicants sought leave pursuant to O 22 r 2(1)(d) of the former Rules to discontinue the proceeding against Mr Moyes. 10 I am satisfied that leave to discontinue should be granted pursuant to O 22 r 2(1)(d) of the former Rules. No injustice in doing so would be occasioned to any opposing party. Order 22 r 2(1)(c) permits the discontinuance where judgment has not been entered and with the consent of all the parties, whereas O 22 r 2(1)(d) permits a discontinuance to be filed at any time with the leave of the Court. From this it follows, in my view, that the Court may exercise its power under the latter Rule even where judgment has been entered. In the present case, granting leave to the applicants to discontinue proceeding against Mr Moyes would not occasion any injustice to him or to his estate. Accordingly I propose making that order.

SETTING ASIDE CERTAIN ORDERS 11 In light of fresh developments, I am asked to set aside various orders pursuant to O 35 r 7 of the former Rules which apply. Paragraph 2 and para 3 respectively provide: Setting aside … (2) The Court may vary or set aside a judgment or order after the order has been entered where: (a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order; (b) the order was obtained by fraud; (c) the order is interlocutory; (d) the order is an injunction or for the appointment of a receiver; (e) the order does not reflect the intention of the Court; or (f) the party in whose favour the order was made consents. (3) A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the Court. … 12 In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, Mason CJ held (at 303) that an order may be reviewed where the Court has good reason to consider that its earlier judgment has proceeded under a misapprehension as to the facts or to the law and that the misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. 13 Similarly, in De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207, the High Court (Toohey, Gaudron, McHugh, Gummow and Kirby JJ) held in a joint judgment in respect of an application to reopen final orders before the entry of such orders (at 215) (footnotes omitted) that: The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded "on a misapprehension as to the facts or the law", where "there is some matter calling for review" or where "the interests of justice so require". It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required "without fault on his part", ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case. 14 In the industrial law context, Nicholson J considered the position of amendment to final orders in Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 (at [20]). His Honour held that regard must be had to the following factors: (1) "Generally speaking, it [the discretion] will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard": Wentworth at 684 per Mason ACJ, Wilson and Brennan JJ, cited with approval by Mason CJ in Autodesk Inc v Dyason (1993) 176 CLR 300 at 302. In Autodesk Brennan J (at 308) said that a court should not pronounce a judgment against a person on a ground which that person has not had an opportunity to argue for to do so would be a denial of natural justice. (2) The power will only be exercised if there is "some matter calling for review": Smith at 265. (3) There may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal: Smith at 265, citing Codelfa at 38-39, 45-46 and Wentworth at 394-395. (4) The power will not ordinarily be exercised "to permit a general reopening": Smith at 265, citing Ritchie's Supreme Court Procedure, New South Wales, vol 1, p 2855. (5) It is necessary for the court to consider whether it has proceeded on a misapprehension as to the facts or the law: Autodesk at 302 per Mason CJ. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to neglect or default of the party seeking the rehearing: Autodesk at 303 per Mason CJ. (6) The power is not to be exercised for the purpose of reagitating arguments already considered by the Court: Autodesk at 303 per Mason CJ. (7) Nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put: Autodesk at 303 per Mason CJ. (8) It will be relevant whether the decision has been given in ignorance or forgetfulness of some statutory provision or of some critical fact: Autodesk at 310 per Brennan J. (9) What is at issue is the interests of justice and whether they require judgment to be set aside: Autodesk at 322 per Gaudron J, citing Smith and adding that such circumstances will be extremely rare particularly if there has been an opportunity for full argument. (10) It will be appropriate to consider whether the review of the contemplated order is necessary so that the orders made deal more adequately with the matter as litigated by the parties before the Court: Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) ATPR ¶41-508 at 42,362 per Lee J citing Texas Company (Australasia) Ltd v Commissioner of Taxation (Cth) (1940) 63 CLR 382 at 457 per Starke J. 15 In Australian Communications and Media Authority v Clarity1 Pty Ltd (2008) 173 FCR 297 (at [11]) applying R v Cripps; Ex parte Muldoon [1984] QB 686 (at 695 per Donaldson MR) I noted that the slip rule in O 35 r 7(3) is: surprisingly wide in its scope. Its primary purpose is akin to rectification, namely, to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. 16 The slip rule exists to avoid doing injustice and by its application any omission or oversight made at the time of making the order which does not change the substantive character of the order can be rectified (Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 (at 524 per Malcolm CJ). 17 It is the latter aspect in particular which is of importance in this instance. The applicants are applying to diminish, in effect, the extent of orders previously made on the basis of their available evidence as it was understood in light of fresh evidence. The amendments are in favour of, not against, the interests of the particular respondents. Alternatively, where no amendment is proposed, it is on the basis of evidence given by the particular individual respondents. 18 The relevant factors upon which the applicants rely in support of orders setting aside parts of the Orders in relation to particular respondents are as follows:

Mr Drew Wickenden 19 Mr Wickenden (respondent 1215) is a non-appearing respondent. He was employed by United Group Resources Pty Ltd (UGL) in January 2010. The Orders state Mr Wickenden took industrial action for six days during the dispute (22, 23, 25, 27, 28 and 29 January 2010). 20 Since the Orders were made the applicants have become aware from communications with Mr Wickenden that he gave notice of his resignation from UGL on 22 January 2010. UGL agrees that such notice of resignation was given on 22 January 2010 and says that it accepted his resignation with effect on 25 January 2010, such that his employment with UGL came to an end on 25 January 2010. It follows that it was an error on the part of UGL to record Mr Wickenden as having taken industrial action on 27, 28 and 29 January 2010. 21 The applicants request that, to the extent the Orders state that Mr Wickenden took industrial action on 27, 28 and 29 January 2010, they should be set aside. The applicants rely on O 35 r (2)(a) and (f) and r 7(3) of the former Rules.

Mr Dale Barron 22 Mr Barron (respondent 404) is a non-appearing respondent. He was employed by Monadelphous Engineering Associates Pty Ltd (Monadelphous) in January 2010. The Orders state Mr Barron took industrial action for four days during the dispute (22, 23, 25 and 30 January 2010). 23 Since the Orders were made the applicants have become aware from communications with Mr Barron that he was on authorised absence on 25 January 2010 and authorised sick leave on 30 January 2010. Monadelphous has checked its records and accepts that is correct. It follows that it was an error on the part of Monadelphous to record Mr Barron as having taken industrial action on 25 and 30 January 2010. 24 The applicants request that, to the extent the Orders state that Mr Barron took industrial action on 25 and 30 January 2010, they should be set aside. The applicants rely on O 35 r (2)(a) and (f) and r 7(3) of the former Rules.

Mr Carl Rayman 25 Mr Rayman (respondent 593) is a non-appearing respondent. He was employed by Monadelphous in January 2010. The Orders state Mr Rayman took industrial action for six days during the dispute (22, 23, 25, 27 28 and 29 January 2010). 26 Since the Orders were made the applicants have become aware that Mr Rayman was provided with a written authorisation to be absent from work in the week commencing 25 January 2010. Monadelphous has checked its records and accepts that is correct. It follows that it was an error on the part of Monadelphous to record Mr Rayman as having taken industrial action on 25, 27, 28 and 29 January 2010. 27 The applicants request that, to the extent the Orders state that Mr Rayman took industrial action on 25, 27, 28 and 29 January 2010, they should be set aside. The applicants rely on O 35 r (2)(a) and (f) and r 7(3) of the former Rules.

AFFIDAVITS FILED BY RESPONDENTS WHO HAVE ENTERED AN APPEARANCE SINCE THE ORDERS WERE MADE 28 Since the Orders were made on 30 September 2011, ten respondents have entered an appearance in the proceeding (other than respondents for whom Fiocco's Lawyers or Gibson & Gibson now act). Nine of those ten respondents have filed and served an affidavit. 29 Mr Irineo Comia (respondent 72) is the only one of those ten respondents who had indicated to the applicants that he intended to attend the hearing commencing on 13 December 2011. 30 The applicants' position in relation to those ten respondents is as follows.

Mr Julian Suter 31 Mr Suter (respondent 323) did not file an affidavit. He informed the applicants' solicitors that he did not intend to file an affidavit or attend the hearing in December 2011. 32 The applicants submit, and I accept, that the agreed (suspended) daily penalties to be imposed on Mr Suter should be the same as that imposed on the represented respondents and the non-appearing respondents.

Mr Genaro Briagas 33 Mr Briagas (respondent 41) filed and served an affidavit sworn by him on 24 October 2011. He informed the applicants' solicitors that he would not be attending the hearing on remedy. 34 The applicants had no objection to Mr Briagas' affidavit being read during the remedy hearing. 35 The applicants make the following submissions in relation to Mr Briagas' affidavit: (a) in para 4 of his affidavit, Mr Briagas states that: the particular facts that relate personally to me are set out below. The dates stated are also confirmed in the letter from my employer dated 26 March 2010. See attached pages of time keeping being made by my employer (b) in the letter which is annexure A to his affidavit, Mr Briagas states: ... I attended work in the period from Monday 25 to Saturday 30 February. This was except for Wednesday 27, where I only worked half a day and Thursday 28, where I was absent the full day (c) annexure B to Mr Briagas' affidavit is a copy of a letter from AGC Industries Pty Ltd (AGC) to Mr Briagas dated 26 March 2010. It provides that: you attended work on all days except on Wednesday 27 March [sic] 2010, where you were absent for half the day and on Thursday 28 January 2010 where you were absent the full day. These absences were treated as unauthorised leave, as no reason was given or leave sought for that time off. You returned to work on Friday 29 January and Saturday 30 January. 36 The Orders also state that Mr Briagas took industrial action on two days during the strike, namely, 27 and 28 January 2010. Mr Briagas' absence on 27 January 2010 was treated as a full day of industrial action because he was absent from work for more than four hours in a 10 hour working day. 37 Given that the evidence contained in Mr Briagas' affidavit is consistent with the determination by the Court that he took unlawful industrial action on 27 and 28 January 2010, the applicants submit, and I accept, that the agreed (suspended) daily penalties should be imposed on Mr Briagas in respect of his absence from work on 27 and 28 January 2010.

Mr Adrian Carandang 38 Mr Carandang (respondent 58) filed and served an affidavit sworn by him on 24 October 2011. He informed the applicants' solicitors that he would not be attending the hearing on remedy. 39 The applicants had no objection to Mr Carandang's affidavit being read during the remedy hearing. 40 In para 3 of his affidavit, Mr Carandang stated that 'on Friday 22 and Saturday 23 January 2010 I was absent'. In para 4 of his affidavit, he stated that 'I attend to work in the period from Monday 25 to Saturday 30 January. This except for half day worked Wednesday'. 41 Annexure E to Mr Carandang's affidavit is a copy of a letter from AGC to Mr Carandang dated 26 March 2010. It states that: I confirm that on Friday 22 January and Saturday 23 January you were absent and this was treated as unauthorised leave... You attended work on all days of the following week except on Wednesday 27 March [sic] 2010, where you were absent for half the day. This absence was treated as unauthorised leave, as no reason was given or leave sought for that time off. 42 The Orders also state that Mr Carandang took industrial action on three days during the strike, namely, 22, 23 and 27 January 2010. Mr Carandang's absence on 27 January 2010 was treated as a full day of industrial action because he was absent from work for more than four hours in a 10 hour working day. 43 Given that the evidence contained in Mr Carandang's affidavit is consistent with the determination by the Court that he took unlawful industrial action on 22, 23 and 27 January 2010, the applicants submit, and I accept, that the agreed (suspended) daily penalties should be imposed on Mr Carandang in respect of his absence from work on 22, 23 and 27 January 2010.

Mr Bienvenido Suyat 44 Mr Suyat (respondent 203) filed and served an affidavit sworn by him on 24 October 2011. He informed the applicants' solicitors that he would not be attending the hearing on remedy. 45 The applicants had no objection to Mr Suyat's affidavit being read during the remedy hearing. 46 In para 4 of his affidavit, Mr Suyat states that 'as far as l remember 27 Jan 2010 (Wed) we work 4 hours before we decided to go back to the camp'. Annexure B to Mr Suyat's affidavit is a copy of a chain of emails. One of those emails (dated 28 October 2011, 2:06pm) refers to a letter from AGC (Mr Kaskow) to Mr Suyat in which Mr Kaskow confirmed that 'you attended work on all days except on Wednesday 27 [January] 2010, where you were absent for half the day'. 47 The Orders also state that Mr Suyat took industrial action on one day during the strike, namely, 27 January 2010. Mr Suyat's absence on 27 January 2010 was treated as a full day of industrial action because he was absent from work for more than four hours in a 10 hour working day. 48 Given that the evidence contained in Mr Suyat's affidavit is consistent with the determination by the Court that he took unlawful industrial action on 27 January 2010, the applicants submit, and I accept, that the agreed (suspended) daily penalties should be imposed on Mr Suyat in respect of his absence from work on 27 January 2010.

Mr Blake Miles 49 Mr Miles (respondent 250) filed and served an affidavit sworn by him on 25 October 2011. On 2 December 2011 the applicants gave Mr Miles written notice of their requirement for him to attend the hearing in December 2011 for the purpose of cross-examination. 50 On 6 December 2011 Mr Miles informed the applicants' solicitors that he did not intend to attend the hearing on remedy. In response, the applicants informed Mr Miles that they intended to object to his affidavit being read at the penalty hearing. 51 The applicants relied upon O 14 r 9(3) of the former Rules, which provides that where a party makes an affidavit and another party gives notice to the person who made the affidavit of a requirement that they attend the hearing for cross examination but they do not attend, the affidavit shall not be used without the leave of the Court. 52 The applicants submitted, and I accept, that leave should not be granted in the present case because Mr Miles had made assertions in his affidavit with which the applicants took issue and the applicants would not have the opportunity to test the veracity of those assertions in circumstances where Mr Miles did not intend to make himself available for cross-examination at the hearing on 13 December 2011. 53 The applicants submitted that the agreed (suspended) daily penalties should be imposed on Mr Miles in respect of his absence from work on 22 (1/2 day), 23, 25 and 29 January 2010.

Mr Irineo Comia 54 Mr Comia (respondent 72) filed and served an affidavit sworn by him on 31 October 2011. 55 On 2 December 2011 the applicants gave Mr Comia written notice of their requirement for him to attend the hearing in December 2011 for the purpose of cross-examination. Mr Comia informed the applicants that he intended to attend the hearing on 13 December 2011. 56 The applicants intended to cross-examine Mr Comia in relation to the assertions made by him in his affidavit. Mr Comia attended the hearing. His position is dealt with in the next judgment (United No 7).

Mr Arturo Quinto 57 Mr Quinto (respondent 176) filed and served an affidavit sworn by him on 31 October 2011. He informed the applicants' solicitors that he would not be attending the hearing on remedy. The applicants raised no objection to Mr Quinto's affidavit being read during the remedy hearing. 58 In para 5 of his affidavit, Mr Quinto confirmed that he did not work for most of the day on 22 January 2010. On 23 January 2010 he 'preferred not to report to work insted [sic] dicided [sic] to stay at the camp'. 59 Paragraph 5 of Mr Quinto's affidavit reads: On January 22, 2010 I reported to work but was sent to camp early as [sic] 11am in the morning due to the difficulties brought by the said industrial strike. 60 The Orders also state that Mr Quinto took industrial action on two days during the strike, namely, 22 and 23 January 2010. Mr Quinto's absence on 22 January 2010 was treated as a full day of industrial action because he was absent from work for more than four hours in a 10 hour working day. 61 Given the evidence in para 5 of Mr Quinto's affidavit the agreed (suspended) daily penalties should be imposed on Mr Quinto in respect of his absence from work only on 23 January 2010.

Mr Keith Rao 62 Mr Rao (respondent 178) filed and served an affidavit sworn by him on 21 October 2011. 63 On 2 December 2011 the applicants gave Mr Rao written notice of their requirement for him to attend the hearing in December 2011 for the purpose of cross-examination. 64 On 3 December 2011 Mr Rao informed the applicants' solicitors that he did not intend to attend the hearing on remedy. In response, the applicants have informed Mr Rao that they intended to object to his affidavit being read at the penalty hearing. 65 The applicants submit that leave should not be granted under O 14 r 9(3) of the former Rules to permit Mr Rao to rely upon his affidavit case because Mr Rao had made assertions in his affidavit with which the applicants took issue and the applicants would not have the opportunity to test the veracity of those assertions in circumstances where Mr Rao did not intend to make himself available for cross-examination at the hearing on 13 December 2011. 66 The applicants submit, and I accept, that the agreed (suspended) daily penalties should be imposed on Mr Rao in respect of his absence from work on 22, 23, 27, 28 and 29 January 2010.

Mr Keetha Williams 67 Mr Williams (respondent 651) filed and served an affidavit sworn by him on 7 October 2011. He is represented by Stacks the Law Firm. They informed the applicants' solicitors that: (a) they were not instructed to appear at the remedy hearing in December 2011; and (b) Mr Williams would not be attending the hearing on remedy. 68 The applicants had no objection to Mr Williams' affidavit being read during the remedy hearing. 69 In paras 2 to 6 of his affidavit, Mr Williams explains his attendance at work from 25 to 28 and 30 January 2010 and his authorised absence from work on 29 January 2010. Mr Williams did not seek to give any evidence concerning his absence from work on 22 and 23 January 2010. 70 No claim has been made by the applicants concerning Mr Williams' attendance at work from 25 to 28 and 30 January 2010 or his authorised absence from work on 29 January 2010. 71 The Orders state that Mr Williams took industrial action on two days during the strike, namely, 22 and 23 January 2010. 72 Given that the evidence contained in Mr Williams' affidavit is consistent with the determination by the Court that he took unlawful industrial action on 22 and 23 January 2010, the applicants submit, and I accept, that the agreed (suspended) daily penalties should be imposed on Mr Williams in respect of his absence from work on 22 and 23 January 2010.

Mr Kevin Cream 73 Mr Cream (respondent 75) filed and served an affidavit sworn by him on 8 November 2011. 74 However, on 28 November 2011 Mr Cream notified the applicants that: (a) he would not be attending the hearing on remedy in December 2011; and (b) he accepted the remedies proposed by the applicants. In those circumstances, the applicants submit that Mr Cream's affidavit should not be read at the penalty hearing. 75 The applicants submit, and I accept, that the agreed (suspended) daily penalties should be imposed on Mr Cream in respect of his absence from work on 22, 23, 27, 28, 29 and 30 (1/2 day) January 2010.

CONCLUSION 76 On the basis of the foregoing, I am satisfied that the minute of proposed orders reflecting amendments to take into account the fresh evidence made available since the making of the further orders should be made. 77 The orders will be: 1. The applicants be granted leave to discontinue the proceeding against respondent 254. 2. The orders made on 30 September 2011 be set aside insofar as they state that respondent 1215: (a) engaged in industrial action within the meaning of s 19 of the Fair Work Act 2009 (Cth) (FW Act) on 27, 28 and 29 January 2010; (b) engaged in building industrial action within the meaning of s 36(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) on 27, 28 and 29 January 2010; and (c) contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 27, 28 and 29 January 2010. 3. The orders made on 30 September 2011 be set aside insofar as they state that respondent 404: (a) engaged in industrial action within the meaning of s 19 of the FW Act on 25 and 30 January 2010; (b) engaged in building industrial action within the meaning of s 36(1) of the BCII Act on 25 and 30 January 2010; and (c) contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 25 January and 30 January 2010. 4. The orders made on 30 September 2011 be set aside insofar as they state that respondent 593: (a) engaged in industrial action within the meaning of s 19 of the FW Act on 25, 27, 28 and 29 January 2010; (b) engaged in building industrial action within the meaning of s 36(1) of the BCII Act on 25, 27, 28 and 29 January 2010; and (c) contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 25, 27, 28 and 29 January 2010. 5. The orders made on 30 September 2011 be varied and set aside only insofar as they state that respondent 176: (a) engaged in industrial action within the meaning of s 19 of the FW Act on 22 January 2010; (b) engaged in building industrial action within the meaning of s 36(1) of the BCII Act on 22 January 2010; and (c) contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 22 January 2010. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.