FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commission v Construction, Forestry,

Mining and Energy Union (The Kane Constructions Case) [2017] FCA 168

File number: VID 261 of 2016

Judge: JESSUP J

Date of judgment: 1 March 2017

Catchwords: INDUSTRIAL LAW – Industrial action – Stop-work meetings and walk-offs on construction sites – Whether industrial action engaged in by employees – Whether meetings and walk-offs organised by union organisers – Whether contraventions arose out of same course of conduct – Whether organisers liable as accessories – Whether organisers knew that employees were covered by enterprise agreement – Whether organisers’ conduct attributed to union.

INDUSTRIAL LAW – Adverse action – Industrial activity – Right of entry – Union organisers entered construction sites in defiance of builder’s right of entry procedure – Whether implied request or requirement by union that procedures be relaxed or not applied.

PRACTICE AND PROCEDURE – Disharmony between pleadings and outline of submissions – Whether unfair on respondents for applicant to depart from outline.

Legislation: Fair Work Act 2009 (Cth) ss 19, 342, 346, 347, 348, 363, 417, 474, 550, 557, 793

Cases cited: Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) [2017] FCA 167Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652QR Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2010) 204 IR 142Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153Yorke v Lucas (1985) 158 CLR 661

Date of hearing: 17 & 26 October, 19 December 2016

Registry: Victoria

Division: General Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 181

Counsel for the Applicant: Mr M Follett with Mr A Pollock

Solicitor for the Applicant: Maddocks

Counsel for the Respondents: Mr R Reitano

Solicitor for the Respondents:

Slater and Gordon

ORDERS

VID 261 of 2016

BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONApplicant

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNIONFirst Respondent

MICHAEL POWELLSecond Respondent

PETER BOOTH (and others named in the Schedule)Third Respondent

JUDGE: JESSUP J

DATE OF ORDER: 1 MARCH 2017

THE COURT ORDERS THAT:

1. The proceeding be listed at a time and date to be notified for the purpose of receiving

the parties’ submissions on the terms of the orders proper to reflect the reasons of the

court published this day, and as to penalties.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JESSUP J:

INTRODUCTION

1 In this proceeding the applicant, the Australian Building and Construction Commissioner

under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), seeks

declarations and penalties against the respondents, the Construction, Forestry, Mining and

Energy Union (“the CFMEU”), Michael Powell, Peter Booth, Stephen Long, Derek

Christopher, Bill Beattie, John Perkovic, Theo Theodorou, Brendan Murphy, Gerard

Benstead and Joseph Myles in respect of conduct alleged to have been in breach of ss 346,

348 and 417 of the Fair Work Act 2009 (Cth) (“the FW Act”) on 2 April and 22 May 2014 at

various construction sites in Melbourne and Geelong where Kane Constructions Pty Ltd

(“Kane”) was the builder.

2 The proceeding was commenced by the Director of the Fair Work Building Industry

Inspectorate (“the Director”) under the Fair Work (Building Industry) Act 2012 (Cth). By the

operation of item 19 of Sch 2 to the Building and Construction Industry (Consequential and

Transitional Provisions) Act 2016 (Cth), on 2 December 2016 the applicant took the place of

the Director as the moving party in the proceeding.

3 At relevant times, each of the individual respondents was employed by the CFMEU. It is

established on the pleadings that each was also an officer or agent of the CFMEU itself

and/or of the CFMEU Construction and General Division, Victoria-Tasmania Divisional

Branch (“the Branch”). The respondent Christopher was the Vice-President of the Branch.

Each of the other individual respondents was an organiser of the CFMEU and of the Branch.

It is the individual respondents who are alleged to have been the primary contraveners under

the relevant provisions of the FW Act, with the CFMEU’s liability arising by the operation of

ss 363 (in the case of the alleged contraventions of ss 346 and 348) and 793. Alternatively in

relation to s 417, the construction workers on the sites with which the proceeding is

concerned (whether employees of Kane or of Kane’s sub-contractors) are alleged to be the

primary contraveners, with the individual respondents being accessorily liable under s 550 of

the FW Act, and the CFMEU liable by the operation of s 793.

4 Kane was party to the Kane Construction Pty Ltd and the CFMEU Building and Construction

Industry Enterprise Agreement 2011 - 2015 (“the Kane EA”) made under Pt 2-4 of the FW

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Act. It covered Kane, employees of Kane and the CFMEU. It had a nominal expiry date of

31 March 2015.

5 At the times which are relevant in this proceeding, Kane was contracted to perform building

work, specifically the design and construction of works, at the following sites:

(a) the Casey Hospital project at 52 Kangan Drive, Berwick (“the Casey Hospital site”);

(b) the “Aquanation” aquatic centre project at the corner of Greenwood Avenue and

Reilly Street, Ringwood (“the Aquanation site”);

(c) the Geelong Hospital project at Ryrie Street, Geelong (“the Geelong Hospital site”);

(d) the Mercy Hospital project at 18-22 Fernhill Road North, Sandringham (“the Mercy

Place site”);

(e) the Owen Dixon Chambers West project at 525 Lonsdale Street, Melbourne (“the

ODC West site”);

(f) the St John of God Hospital project at 80 Myers Street, Geelong (“the SJOG site”);

(g) the BUPA project at 222-228 Serpells Road, Templestowe (“the BUPA site”);

(h) the “Emporia” project at 132 Commercial Road, Prahran (“the Emporia site”);

(i) the Epworth Hospital upgrade project at 62 Erin Street, Richmond (“the Epworth

site”); and

(j) the Geelong Library project at Little Malop Street, Geelong (“the Geelong Library

site”).

6 At the times which are relevant in this proceeding, Kane had a written procedure regarding

the right of union officials to enter its building sites, including those referred to above, for

occupational health and safety or industrial purposes. The procedure laid down various

requirements for a union official seeking entry to a site, including that he or she hold, and

produce on request, a right of entry permit and, where the purpose of the entry was to hold

discussions with union members, the provision of 24 hours’ notice of the intended entry.

Kane’s practice was to follow this procedure in respect of any union official who sought to

enter one of its sites, and to treat the entry of a union official as unauthorised if he or she did

not meet the requirements of the procedure.

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THE LEGISLATION

7 For the sake of later reference, and since this proceeding involves a number of construction

sites, I shall set out below the terms of the provisions of the FW Act on which the applicant

relies, to the extent of their present relevance.

8 Section 346 relevantly provides as follows:

A person must not take adverse action against another person because the other person:

…

(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

9 By s 347(b)(iv), a person engages in industrial activity if he or she “does, or does not …

comply with a lawful request made by, or requirement of, an industrial association ….” By

para (e) of the same section, a person engages in industrial activity if he or she “complies

with an unlawful request made by, or requirement of, an industrial association ….”

10 Under item 7 in the table in s 342(1), it is “adverse action” if an industrial association, or an

officer or member of such an association, does either of the following things against a person:

(a) organises or takes industrial action against the person; or

…

(c) if the person is an independent contractor—takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services;

11 Section 348 provides as follows:

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 engage in industrial activity.

12 For the purposes of ss 346 and 348, s 363 relevantly provides as follows:

(1) For the purposes of this Part, each of the following is taken to be action of an industrial association:

(a) action taken by the committee of management of the industrial association;

(b) action taken by an officer or agent of the industrial association acting

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in that capacity;

(c) action taken by a member, or group of members, of the industrial association if the action is authorised by:

(i) the rules of the industrial association; or

(ii) the committee of management of the industrial association; or

(iii) an officer or agent of the industrial association acting in that capacity;

(d) action taken by a member of the industrial association who performs the function of dealing with an employer on behalf of the member and other members of the industrial association, acting in that capacity;

(e) if the industrial association is an unincorporated industrial association that does not have a committee of management—action taken by a member, or group of members, of the industrial association.

…

(3) If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:

(a) that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and

(b) that the person, or a person in the group, had that state of mind.

(4) Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).

13 Section 417 relevantly provides as follows:

(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.

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14 Under s 19, “industrial action” is defined so as to include:

(1) Industrial action means action of any of the following kinds:

…

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work….

15 For the purposes of all provisions on which the applicant relies, s 793 relevantly provides as

follows:

(1) Any conduct engaged in on behalf of a body corporate:

(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b) that the person had that state of mind.

Meaning of state of mind

(3) The state of mind of a person includes:

(a) the knowledge, intention, opinion, belief or purpose of the person; and

(b) the person’s reasons for the intention, opinion, belief or purpose….

16 Section 550 provides as follows:

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(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.

17 Section 557(1) provides as follows:

(1) For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:

(a) the contraventions are committed by the same person; and

(b) the contraventions arose out of a course of conduct by the person.

The provision under which the applicant seeks penalties, s 546, is in the Part of the FW Act

referred to in s 557(1). Section 417 is amongst the civil remedy provisions referred to in s

557(2).

THE EXTENT OF THE APPLICANT’S INDUSTRIAL ACTION ALLEGATIONS

18 As will appear from my reasons below, the applicant’s case is based on what is alleged to

have been industrial action taken by workers on various building sites, and alleged to have

been organised in each case (except one) by one or more of the individual respondents. A

pattern of events which was common to each of the relevant occasions was that one, or in

some cases two, of those respondents would arrive at a site and call a meeting of workers

(nearly always requiring the cessation of work), after which all or some of the workers would

leave the site, not to return that day.

19 In his Statement of Claim filed as long ago as 24 March 2016, the Director alleged, in each

case, that participation in the stop-work meeting and the subsequent leaving of the site each

constituted industrial action within the meaning of s 19 of the FW Act. In each instance, in

their Defence filed on 19 May 2016, the individual respondent or respondents concerned did

not plead to the allegations because he or they claimed “the privilege against exposure to

penalty”. For its part, the CFMEU took the point that it too could not plead to the allegations

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because the individual respondent or respondents had “claimed the privilege against exposure

to penalty”.

20 On 16 September 2016, the Director filed an outline of the submissions proposed to be made

on his behalf. In that outline, the Director said:

It is alleged by way of the applicant’s Statement of Claim dated 24 March 2016 (SOC), that on each of 2 April 2014 and 22 May 2014, various officers of the first respondent (CFMEU) attended a number of different construction sites across Victoria where Kane Constructions Pty Ltd (Kane) was the principal contractor/builder and organised/counselled/procured most of the construction workers at these various sites, whether employed by Kane or by a variety of subcontractors on those sites, to engage in industrial action by walking off the job for the day.

And:

The stoppages of work at the various Kane sites by various construction workers on each of 2 April 2014 and 22 May 2014 (employees of Kane and employees of other subcontractors), amounted to industrial action by those workers.

And:

In each case and at each site, the industrial action was organised by one or more individual respondents, as officers of the CFMEU. The organisation involved the calling of a stop work meeting, informing the workers of the arrest(s) and telling them to stop work and leave the site for the day. The organisation of that industrial action in each case by the relevant individual respondents also amounted to a contravention of section 417(1) of the FW Act.

21 The respondents’ outline of submissions filed on 23 September 2016 was confined to the

following:

The Second to Eleventh Respondents have claimed the privilege against exposure to penalty and therefore do not make any submissions prior to hearing the evidence relied upon by the Applicant against them. In these circumstances, the First Respondent is unable to make submissions.

22 The trial of the proceeding was listed to commence on 17 October 2016. At the

commencement of the hearing that day, the respondents sought and obtained leave to file an

Amended Defence which had been provided to the Director and the court late in the previous

week. In that Amended Defence, allegations which followed the pattern referred to in para

19 above were responded to with the proposition that they raised a point of law, not

allegations of fact. The respondents did not, therefore, plead to them.

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23 In the Director’s opening on 17 October 2016, counsel said:

And our case is that the organisation of the stop work meeting at each site was itself a contravention of section 417(1), and then the organisation of the walk-off subsequent to each meeting was itself a contravention of section 417(1) of the Fair Work Act.

The Director closed his case at 3.05 pm that day.

24 Counsel for the respondents announced that he did not propose to call any evidence, but he

wanted to have the Director’s outline formally before the court. He said:

I’m raising it now because there is a very significant point – in my submission a very significant point that I want to raise from it, and I don’t want it to be a surprise to anyone. But whether it be a matter of tendering it, or whether my learned friend is content to hand it up when he addresses your Honour, I want it before your Honour.

There was, of course, no suggestion by counsel for the Director that their own outline should

not be before the court.

25 On the application of the Director, the hearing of the proceeding was then adjourned to a date

which, after some discussion, became 26 October 2016.

26 On that day, counsel for the Director addressed first. In the course of that address, an issue

arose which led to an application on behalf of the Director to be given an opportunity to

amend his Statement of Claim. That application, and the amendment which followed, are not

presently material, but they led to a further adjournment of the hearing of the proceeding, this

time to Monday 19 December 2016.

27 On 16 December 2016 – the Friday before the resumption – the respondents filed, for the first

time, an outline which revealed the nature of their case. In that outline, the point was taken

that, in the Director’s outline filed on 23 September 2016, a distinction was made between

the meetings at the various sites at which the individual respondents had, it was alleged,

organised the taking of industrial action and the consequential, so-called, walk-offs when the

workers left the sites for the balance of the day. The respondents’ point was that, as the

matter was expressed in the Director’s outline, only the latter were alleged to constitute

industrial action, while the former were relied on only as conduct by way of organising that

industrial action, rather than as industrial action as such. This was, apparently, the point that

counsel for the respondents did not want to be a surprise to anyone.

28 It was submitted on behalf of the respondents that the applicant should not be permitted to

advance a case inconsistent with the outline filed by the Director on 23 September 2016,

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notwithstanding that allegations that the meetings and the walk-offs were both industrial

action as defined had clearly been made in the Statement of Claim and had been repeated in

the Director’s opening. To allow the applicant to depart from the case set out in the

Director’s outline would, it was said, be “unfair to the respondents”.

29 It is not clear to me in what respects permitting the applicant to stay loyal to the Statement of

Claim as originally filed (and, relevantly to the present point, unamended) and to the opening

made on his behalf would be unfair to the respondents. We are not here concerned with some

matter of fact as to which the respondents might have called evidence, or cross-examined the

Director’s witnesses differently, had his outline reflected his pleading. So much is clear from

the respondents’ own Defence, in which it was said that the relevant allegations were not

ones of fact. That being the case, it is as clear as may be that the respondents’ counsel was

well-equipped to deal with the point as a matter of argument. Moreover, it is apparent from

his submission to the court on 17 October 2016 that he was, in effect, lying in wait for the

occasion when he might produce this point in final submissions. If there is one thing counsel

for the respondents was not in relevant respects, it is unprepared.

30 It is possible that counsel for the respondents perceived a degree of disharmony between the

Statement of Claim and the Director’s outline. Notwithstanding that both documents were in

the respondents’ possession when they filed their Amended Defence, no reference was made

in the latter document to what is now said to have been a degree of overreach in the

Statement of Claim. If there were any disharmony, the matter was resolved with clarity in the

Director’s opening. From that point forward, there could have been no element of doubt as to

how the Director proposed to run his case.

31 I am bound to say that I regard the point raised by counsel for the respondents as

conspicuously unmeritorious. The applicant is entitled to have the case determined

consistently with his pleading and his counsel’s opening.

THE APPLICANT’S INFERENTIAL CASE

32 In a number of areas, the applicant’s case that one (or, in some cases, two) of the individual

respondents organized industrial action taken by workers on a construction site involved a

submission that the court should infer that fact from events that were externally observable,

such as, and most commonly, the arrival of the respondent on the site, the insistence by that

respondent that there be a meeting of the workers, the holding of the meeting where the

workers were addressed by the respondent and the subsequent departure of the workers from

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the site. As a Judge sitting in the Fair Work Division of the Court, I think I may be permitted

the observation that such a sequence of events is the paradigm case of a union organizer

organizing industrial action in the construction industry. As they say, a conclusion to that

effect satisfies what is sometimes referred to as the Duck Test.

33 The contested questions of fact in the present case are not, of course, to be determined at this

level of generality. In the reasons which follow, whether each individual respondent

organized industrial action will be addressed, usually by inference, by reference to the facts,

circumstances and context which are relevant to each occasion. But a series of broad

submissions was made on behalf of the respondents as to the approach which the court should

take to the drawing of inferences, and it is convenient to give consideration to that matter at

this stage.

34 The respondents submitted that the applicant had the unchanging onus of proving his case,

and that his failure to call direct evidence of what was said by the organisers in (most of) the

site meetings of workers could not be cured by asking the court to infer what most probably

was said, and by whom, in the course of those meetings. At the genereral level, that

submission cannot be accepted. The applicant bore the legal onus, of course, and did so

throughout, but the evidentiary onus was capable of changing depending on the state of the

evidence from time to time and from whom any gaps in the evidence would, most naturally,

be expected to be filled. The meetings of workers on the various sites were union business.

It was, in my view, the respondents who most naturally would be expected to call evidence of

what was said at them. At least the individual respondents themselves would be expected to

give their own versions of such matters. The failure of every one of them to enter the witness

box justifies the conclusion, which I reach, that they would have been unable to give any

direct evidence to undermine the applicant’s inferential case.

35 It was submitted on behalf of the respondents that, as against the applicant’s proposition that

union organisers prevailed upon workers to take industrial action, there were two equally

available explanations for the fact that the workers stopped work and, in most cases, left the

site in question: first, that they were so “agitated” by the circumstance that an official of the

CFMEU had been arrested that they stopped work, and did not return to work, of their own

accord; and secondly, that, having been told by Kane that they would lose four hours’ pay by

reason of having engaged in some limited industrial action (eg by attending a stop-work

meeting), they saw no point in carrying out further work on the day in question.

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36 I do not accept that submission, at either of its levels. As to the first, if there were some

reason for the workers on the sites to stop work other than that which was to be inferred from

the visits and representations of the various organisers, it was for the respondents to lead

evidence of it. No-one was better placed to inform the court of the reasons why the workers

refused to work on the occasions which have become controversial in this case than the

individual respondents who presided at the meetings which precipitated those refusals. They

have not done so.

37 As to the second, as I understand the respondents’ point, it is that, having been told that they

would in any event lose four hours’ pay for the industrial action which they had taken, the

workers would see no point in remaining at work for no further pay on the day in question.

Thus it was readily to be inferred that they left the sites upon which they were working at the

time not because they had been incited to do so by one of the individual respondents, but

because of a natural reluctance to work for nothing. This submission, of its nature, cannot be

dealt with in the abstract. In my consideration of the facts of the particular sites with which

the case is concerned, I shall address it when the facts make it relevant. Subject to that

proviso, there are some things that may be said about the submission at this stage.

38 The context, of course, is provided by s 474(1) of the FW Act, which provides:

(1) If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to:

(a) if the total duration of the industrial action on that day is at least 4 hours—the total duration of the industrial action on that day; or

(b) otherwise—4 hours of that day.

39 Under cross-examination, Geoff Purcell, Construction Director of Kane, gave evidence that,

if Kane’s employees engaged in a meeting that Kane regarded as industrial action,

management representatives at the site in question were required to inform those employees

that they would have a minimum of four hours’ pay deducted from their remuneration.

Memoranda to that effect had been sent to site management, to direct employees and to sub-

contractors, such that Kane’s position was well-known prior to any industrial action

occurring. It was expected that, as a matter of routine, site management would inform

employees that, if they attended the meeting, they would be “docked” a minimum of four

hours’ pay. That would not apply in the case of a meeting held in the employees’ own time,

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such as during the meal break, or in the case of a meeting held with the permission of site

management.

40 It is apparent that this practice on the part of Kane was to apply prospectively apropos the

industrial action. That is to say, at or before the point where the action was taken, the

employees were to be informed that, if they took the action, they would be sacrificing four

hours’ pay. Indeed, that appears to have been the intent of the memoranda to which Purcell

referred. At the general level, it is not to be inferred that the existence of Kane’s policy –

conforming as it did to s 474(1) – was intended to produce a situation in which it was only

after an employee had attended a stop-work meeting (say) that he or she would discover the

nature and extent of the sacrifice which had been made. This being so, it would not readily

be inferred that his or her decision to attend the meeting was based on the realisation that he

or she had already made the sacrifice, and would thereafter be working for nothing.

41 I propose to leave further consideration of this element of the respondents’ answer to the

applicant’s inferential case to the various factual contexts in relation to which there was

evidence of the workers having been told that they would lose four hours’ pay if they took

industrial action.

CASEY HOSPITAL

42 At about 7.30 am on 2 April 2014, the Project Manager at the Casey Hospital site, Gary

Tivendale, noticed two CFMEU organisers, Paul Edwards and Ian Markham, in one of the

site sheds talking to Brett Martin, an employee of Kane who was the CFMEU shop steward

and health and safety representative for the site. Tivendale told Edwards and Markham that

they needed to provide the correct paperwork if they wanted to walk out onto the site. They

did not respond. Tivendale went to his office, and returned with a contravention notice that

also showed the paperwork that was required to enter the site correctly. He provided that to

Edwards and Markham. Edwards’ response was that he and Markham were there to test the

right of entry procedures. He said that he wanted to be seen on the site by his rank and file,

and that he would do what he would do and Tivendale would do what he had to do.

Tivendale said that if they did not provide the correct paperwork, it would be deemed

trespassing, and he would have to call the police. Edwards and Markham did not leave the

site, remaining there for about two hours, and Tivendale did call the police. After the police

spoke to them, Edwards and Markham left the site.

43 The applicant makes no allegation of unlawful conduct at the Casey Hospital site.

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AQUANATION

44 On 2 April 2014, Brett Curnow and Duncan McLeod, both employees of Kane covered by

the Kane EA, were rostered to perform building work at the Aquanation site. Curnow was a

member of the CFMEU and an officer or agent of the CFMEU or the Branch. He was also

the elected site health and safety representative under the Occupational Health and Safety Act

2004 (Vic) (“the OHS Act”).

45 On that day, Kane had engaged a number of sub-contractors to carry out work at the

Aquanation site. Each of those sub-contractors had rostered one or more employees to

perform work there as required. The sub-contractors, and the number of employees so

rostered in each case, were GR Smith Plastering Pty Ltd (1 employee), P & R Site

Fabrications Pty Ltd t/as P.K. Rigging (2 employees), Neptune Swimming Pools Pty Ltd (20

employees), IES Commercial Australia Pty Ltd (5 employees), E and S Steelfix Pty Ltd (3

employees) and HWM Resources (Vic) Pty Ltd (2 employees). In each case, an enterprise

agreement made and approved under Pt 2-4 of the FW Act, which had not passed its nominal

expiry date, covered the employees concerned in relation to the work done by them at the

Aquanation site. Each of those agreements, save that which covered the employees of IES

Commercial Australia Pty Ltd, also covered the CFMEU.

46 At about 8.00 am, the respondent Powell arrived at the entrance to the site. Kane’s Junior

Site Manager, Shaun Cathcart, approached Powell and asked if anyone had spoken to him

about entering the site. Powell said, “No I have not been read the riot act, I have not got a

permit, I am going to see the plasterer”, and entered the site.

47 Shortly thereafter, Kane’s Senior Site Manager, Michael Meuwissen, approached Powell and

asked him to produce a right of entry permit. Powell did not do so, and said that he would

not produce a permit as he did not have a permit. Thereupon, Meuwissen asked Powell to

leave the site. Powell refused to do so, saying, “No, I want to have a private conversation

with Geoff; leave us alone.” “Geoff” was Geoff Smith of GR Smith Plasterers. Meuwissen

repeated his request for Powell to leave the site, and Powell continued his refusal to leave, in

an exchange the substance and effect of which was as follows:

Meuwissen: You need to leave the site and you can have a private conversation outside the gate with Geoff’s permission of course.

Powell: Ah well I’m not going to do that, if you’re going to be like that I might as well have a meeting while I’m here.

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Meuwissen: You’re not permitted to and need to leave. Don’t go down this path.

48 Meuwissen then told Powell that he would call the police if Powell did not leave the site.

Powell again refused to leave the site and, without notice, organised a stop-work meeting of

workers on the site. He did so by walking around the site yelling out to workers words to the

effect, “c’mon guys, stop what you’re doing, we’re going to have a meeting.” The meeting

was held on the site between the compound and the emergency assembly area, was attended

by about 55 workers, including Curnow, McLeod and the employees of the sub-contractors

referred to above. The meeting took place in front of Meuwissen and Cathcart.

49 Not long after the meeting commenced, Powell said to Meuwissen and Cathcart, “We don’t

really need management at this meeting”, to which Cathcart responded, “We are not leaving

and it should not take place.” Powell said, “We will take it off site then”, and organised the

workers at the meeting to leave the site. As they left the site, they were informed by

Meuwissen that, if they continued with the meeting and did not return to work, by law they

had to be docked a minimum of four hours’ pay. Once outside site, the workers continued

the meeting by congregating around Powell outside gate B. Powell addressed the attendees at

the meeting for about 15 minutes. The workers commenced to return to work at about 8.30

am and, I would infer, would have continued to work normally that day were it not for

subsequent events involving Powell. Powell himself also returned to the site and asked

Meuwissen to allow him to enter the site to undertake a safety inspection. Meuwissen

refused Powell entry to the site and asked him to leave. Powell ignored that request, entered

the site and began walking around the site taking photographs.

50 At about 8:45 am, while following Powell around the site, Meuwissen received a telephone

call from the police to say that they had arrived at the site. He provided directions to the

police as to where to enter the site and told Powell that the police had arrived. At about

9:15 am, while Powell was engaged in a telephone conversation, Sergeant Darren Bishop of

the Victoria Police asked Powell either to produce a right of entry permit or to leave the site.

Powell responded, “I haven’t had one for 6 years and I am not likely to get one”, and walked

a short distance away to use his mobile phone for a further 30 seconds.

51 When Powell had finished his telephone conversation, he and Bishop had the following

exchange:

Bishop: You don’t have any permits authorising you to be on the site is that right?

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Powell: No.

Bishop: Mick you’ve been asked to leave by these men, I am now requesting you to leave.

Powell: No I’m not going to.

Bishop: If you don’t leave you can be arrested for trespass do you understand that?

Powell: Yep.

Bishop: Why don’t you just leave the site and make some phone calls off site and get the permits and come back on, what do you say?

Powell: Nah I can’t, I can’t get a permit I’ve been declared unfit to be a permit holder.

Bishop: You’ve been asked to leave by Kane staff and I’ve now again asked you to leave, we don’t need to make it any bigger than it is will you leave.

Powell: Nah, I can’t walk off in front of my members.

Bishop: I’ll give you one more chance to leave, if you don’t the boys here will arrest you and then take you back to the police station do you understand this?

Powell: Yep, do what you’ve got to do.

Bishop: In that case Mick you’re under arrest for trespassing.

This exchange occurred in plain view of a group of about 60 workers that were gathered in

the site compound, including those referred to above as having been at the stop-work

meeting.

52 At about 9:30 am, a group of about 60 workers, including those referred to above as having

been at the stop-work meeting, stopped working and gathered outside gate C of the site. By

10.00 am, most of them had left the site and did not return for the rest of that day.

53 There are two elements to the applicant’s allegation that the conduct of the workers on the

Aquanation site on 2 April 2014 amounted to industrial action within the meaning of s 19 of

the FW Act: first, their stopping of work to attend the stop-work meeting, initially on site

and then outside gate B, and secondly, their stopping of work at about 9.30 am and

subsequent departure from the site. I accept that, in both respects, this was engagement in

industrial action by these workers during the term of the relevant enterprise agreements in

contravention of s 417(1) of the FW Act.

54 As to the first element, the industrial action was clearly organised by Powell. So much is

admitted on the pleadings. That conclusion is not undermined by the circumstance that

Meuwissen told the workers that they would be docked four hours’ pay if they attended the

meeting outside Gate B. That advice was given prospectively. The certainty of already

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having lost four hours’ pay could not have been an explanation for the decision of any of the

workers to attend the meeting. Subject to what I say in the next paragraph below, Powell

himself contravened s 417(1) directly.

55 The conclusion that Powell directly contravened s 417(1) does not apply in relation to those

of the workers who attended the stop-work meeting, if any, who were employed by IES

Commercial Australia Pty Ltd. Since the CFMEU was not covered by the relevant enterprise

agreement, Powell was not subject to s 417 under subs (2)(b) thereof. But the employees

themselves were covered, and thus subject to s 417 under subs (2)(a). It is submitted on

behalf of the applicant that Powell counselled and procured their contraventions within the

terms of s 550(2)(a), thereby making him a contravener. Factually, that submission may be

accepted: I find that Powell did counsel and procure the conduct of the employees that

amounted to contraventions of s 417(1) on their parts. But it was submitted on behalf of the

respondents that s 550(2)(a) required, in the facts of the case, that Powell had actual

knowledge of every essential element that made the employees’ conduct contraventions of s

417(1), and it has not been proved that he knew that they were covered by the enterprise

agreements by which they were in fact covered.

56 The legal basis for this submission on behalf of the respondents is uncontroversial: Yorke v

Lucas (1985) 158 CLR 661, 666-669.

57 But it was submitted on behalf of the applicant that I should infer that Powell knew that the

employees were covered by the relevant enterprise agreements. Counsel for the applicant

said:

Apart from the fact that these organisers deal with these workers and the subbies, and that they have enterprise agreements which cover the CFMEU, there’s a suggestion that the organisers wouldn’t know whether the employees that they are responsible for organising have an enterprise agreement or not. It’s an ambitious submission and one that doesn’t find any support in industrial reality.

As to the first aspect of this submission, I am, of course, here dealing only with agreements

which did not cover the CFMEU. As to the second aspect, this effectively involved the

proposition that the court should draw an inference by reference not to the evidence but to

some more general intuition based on industrial reality. While there is, of course, every

legitimate reason to apply a sense of industrial reality to the disposition of cases in the Fair

Work Division of the court, findings of fact must still be based on the evidence, whether

those findings be of primary fact or by way of inference. There is nothing to which my

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attention was drawn in the evidence in this case from which I could infer that Powell knew

that employees who were not covered by enterprise agreements which covered the CFMEU

were covered by enterprise agreements which did not cover the CFMEU.

58 As to the second element of the applicant’s allegation, while it was alleged that Powell

organised the stoppage at about 9.30 am and the subsequent departure from the site, no facts

were alleged that would have justified such a conclusion. In relevant respects, the case was

conducted on the pleadings. I reject this element of the applicant’s allegations.

59 In the alternative, it is alleged that Powell was involved in this second element of the

industrial action on this site, within the meaning of s 550 of the FW Act. In relation to the

employees of IES Commercial Australia Pty Ltd, for reasons given above, the applicant’s

reliance on s 550 must be rejected: Yorke v Lucas at 669-670. In relation to the employees of

sub-contractors who were covered by enterprise agreements by which the CFMEU was also

covered, by reason of Powell’s position as an employed organiser of the CFMEU, and in the

absence of evidence from him, I infer that he did know that those employees were so covered.

What follows below deals only with their circumstances.

60 On the facts known to the court (which, as I say, do not go beyond those recounted in the

Amended Statement of Claim), it could not be found that Powell aided, abetted, counselled,

procured or induced the taking of this industrial action. It is not even known whether he was

on the site when it commenced. On behalf of the applicant, it was put that Powell’s intention

was to be arrested for trespass, and for this to be observed by those working on the site. In

the absence of evidence from Powell, I am prepared to infer as much. But that was not

enough to bring his conduct within the terms of para (a) or para (b) of s 550(1).

61 Whether it was enough to bring his conduct within the terms of para (c) is a more difficult

question. As counsel for the respondents pointed out, that the workers on the site, either of

their own accord or encouraged by one or more of their number, reacted to the arrest of

Powell by stopping work and leaving the site is a possibility legitimately open on the

pleadings and the evidence, such as it is. Had Powell anticipated, or even expected, them to

react in that way would not be enough, in my view, to constitute participation, by him, of the

kind referred to in para (c). Had the evidence showed that Powell and the workers were party

to an understanding, however loose, by which he would be arrested and they would stop-

work, he would, in my view, have been indirectly, knowingly, concerned in their

contravention. But the facts as established do not go that far.

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62 Thus the only contravention of s 417 that I find against Powell relates to the first stop-work

meeting at the Aquanation site on 2 April 2014.

63 The next matter to be considered arises under s 557 of the FW Act. That section collapses

into a single contravention two or more contraventions of a civil remedy provision if the

contraventions are committed by the same person and arise out of the same course of conduct

by him or her. There was only one provision of the FW Act which Powell contravened: s

417(1). Factually, there can be no doubt but that his organisation of the industrial action on 2

April 2014 was a single course of conduct, notwithstanding that each worker whose stoppage

of work he organised contravened s 417(1) in his or her own right.

64 But, in a submission tentatively made as I perceived it, it was put on behalf of the applicant

that Powell engaged in as many courses of conduct as there were in-term enterprise

agreements providing the basis for the operation of s 417(1). Here counsel relied on QR

Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing

and Allied Services Union of Australia (2010) 204 IR 142 and Rocky Holdings Pty Ltd v Fair

Work Ombudsman (2014) 221 FCR 153. In QR, the employer had failed to comply with an

obligation to consult arising under 20 collective agreements. The legislative provision which

the employer thereby contravened was expressed as follows: “A person must not contravene

a term of an agreement-based transitional instrument that applies to the person”. Keane CJ

and Marshall J said (with the concurrence of Gray J) (204 IR at 163 [48]):

There may be one course of conduct in respect of each agreement associated with the relevant term of each of many agreements. There are, for the purposes of s 557(1), contraventions of multiple terms of multiple agreements. Accordingly, s 557(1) does not avail the appellants.

While it is not entirely clear, it would seem that their Honours regarded the relevant term in

each agreement as a separate “civil remedy provision” for the purposes of s 557(1), such that

they were not all combined by the subsection.

65 In Rocky Holdings, the employer had failed to pay wages, overtime and other entitlements

arising under the National Employment Standards and a modern award, such that there were

three contraventions of s 44 of the FW Act and six contraventions of s 45. The Full Court

rejected the submission that, because there were only two legislative provisions involved, the

effect of s 557(1) was that, if all nine contraventions were indeed part of the same course of

conduct, they were reduced to two. Their Honours agreed (221 FCR at 162 [19]) with the

reasoning of Logan J in Communications, Electrical, Electronic, Energy, Information, Postal,

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Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652 at [16]

that –

… the course of conduct must be associated with the particularised term of the particularised instrument. That is the contravention of the term of the transitional instrument. One does not look at course of conduct for the purposes of s 557 at a level of abstraction divorced from the contravened provision as particularised (ie the term in question and the transitional instrument in question).

66 In my view, the present case is to be distinguished from the two just referred to. The

existence of an in-term enterprise agreement is an element of liability arising under s 417, but

the section is not concerned with a contravention of the agreement, or a term of it. The

substance of the norm for which the section provides is exactly the same as between two or

more employees each of whom is covered by a different enterprise agreement: he or she

must not organise or engage in industrial action.

67 I thus hold that Powell contravened s 417(1) once at the Aquanation site on 2 April 2014.

68 Because of Powell’s position as an employed organiser, the CFMEU was also a contravener

pursuant to s 793(1)(a).

69 At about 11:00 am on 21 May 2014, Powell attended the Aquanation site in company with

Peter Clark, an employee of the CFMEU who was an officer or agent of the CFMEU and/or

the Branch. The Project Manager for the site, Marco Bonadio, requested Powell and Clark to

provide right of entry permits. They refused to do so, asserting that they did not have to do

so and were able to enter under the OHS Act. Consequently, at about 11:10 am, Bonadio

called the police and, at about 11:35 am, two police officers arrived at the site. Curnow told

them that he had invited Powell and Clark on to the site to assist with OHS issues. Powell

and Clark were not arrested, and left the site at about 2:55 pm when Curnow himself had to

leave.

70 On 22 May 2014, Curnow and McLeod were rostered to perform building work at the

Aquanation site. On that day, Kane had engaged a number of sub-contractors to carry out

work at the site. Each of those sub-contractors had rostered one or more employees to

perform work there as required. The sub-contractors, and the number of employees so

rostered in each case, were Aquatic Projects Pty Ltd (2 employees), Brenair Mechanical

Services Pty Ltd (4 employees), Design Stainless Industries Pty Ltd (3 employees), Elliot

Airconditioning Controls Pty Ltd (1 employee) and Neptune Swimming Pools Pty Ltd (14

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employees). In each case, an enterprise agreement made and approved under Pt 2-4 of the

FW Act, which had not passed its nominal expiry date, covered the employees concerned in

relation to the work done by them at the site. The agreement which covered the employees of

Neptune Swimming Pools Pty Ltd also covered the CFMEU.

71 At about 8:00 am on 22 May 2014, Powell and Clark attended the site. Purcell, who was a

Project Director for the site, requested Powell to produce a right of entry permit. He refused

to do so, asserting that he was attending for occupational health and safety purposes and

thereby had a right to enter under the OHS Act. Purcell told Powell that, since he was not

going to produce a permit, he had to leave the site. He refused to do so. Because Powell and

Clark remained on the site and had not produced right of entry permits, at about 8:10 am

Bonadio called the police.

72 At about 10:45 am, five members of Victoria Police arrived at the site and located Powell and

Clark with Purcell and Bonadio. In the presence of the police, Bonadio asked Clark to

provide a right of entry permit, and he refused to do so, asserting that he had a right to enter

the site without producing a permit on the basis that his purpose of entry was to assist

Curnow, the health and safety representative. Clark was thereupon arrested and removed

from the site. Bonadio and/or Purcell again asked Powell to provide a right of entry permit,

and he refused to do so. He was thereupon arrested and removed from the site.

73 At about 11:30 am on 22 May 2014, about 20-30 workers, including Curnow, McLeod and

the employees of the sub-contractors referred to above, congregated outside gate C to the site.

Meuwissen addressed them, saying, “If you proceed with this meeting and don’t go back to

work, this would be deemed to be unlawful industrial action under the Fair Work Act and you

will be docked four hours’ pay.” One of those present, an employee of Neptune Swimming

Pools Pty Ltd, responded by telling Meuwissen, “Oh yeah, we know that. You don’t have to

tell us.” Following that meeting, most of the workers on the site, including those who had

been at the meeting, left the site.

74 The applicant makes no allegation of unlawful conduct on 21 or 22 May 2014 at the

Aquanation site.

GEELONG HOSPITAL

75 On 2 April 2014, Christian Finnigan, Graham Smith, Gerard Hughes, Paul Dubowik, Bryan

McMahon, Daniel Dryden, Matthew Pike, Timothy Eagles and Joel Buso, all employees of

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Kane covered by the Kane EA, were rostered to perform building work at the Geelong

Hospital site.

76 On that day, Kane had engaged a number of sub-contractors to carry out work at the Geelong

Hospital site. Each of those sub-contractors had rostered one or more employees to perform

work there as required. The sub-contractors, and the number of employees so rostered in

each case, were Westcoast Windows Pty Ltd (5 employees), Select Cranes & Rigging Pty Ltd

(4 employees), Delta Pty Ltd (4 employees) and Ballarat Associated Fibrous Plaster Pty Ltd

(10 employees). In each case, an enterprise agreement made and approved under Pt 2-4 of

the FW Act, which had not passed its nominal expiry date, covered the employees concerned

in relation to the work done by them at the Geelong Hospital site. Each of those agreements

also covered the CFMEU.

77 At about 9.25 am on that day, Finnigan informed the Senior Site Manager of the site, Ben

Edwards, that the respondent Booth was coming to the site to meet with CFMEU members

working there because one of the CFMEU organisers was being locked up on a Kane job in

the city. It is common ground that the organiser was Powell and that the job was Kane’s

project at the Aquanation site.

78 At about 9.30 am, Booth entered the Geelong Hospital site, walked directly to the amenities

area where (and here I quote from the allegation in the Amended Statement of Claim, which

was relevantly admitted) “there were around 100 workers gathered” including Finnigan,

Smith, Hughes, Dubowik, McMahon, Dryden, Pike, Eagles, Buso and the employees of the

sub-contractors referred to above. Booth addressed those workers. Between about 9.30 am

and 10.30 am, about 56 of the 104 workers who had signed in to the site that morning,

including the Kane employees and a substantial number of the employees of the sub-

contractors referred to above, left the site and did not return for the remainder of that day.

79 Insofar as these 56 workers left the site and did not return to work, their conduct amounted to

industrial action within s 19 of the FW Act. It was alleged by the applicant that the workers’

attendance at the meeting addressed by Booth was also industrial action. On the pleadings, I

could not uphold that allegation. The only evidence of what occurred on the Geelong

Hospital site on 2 April 2014 was Kane’s industrial action notification form, which was

received into evidence without objection. The form, over Edwards’ name, contained the

following passage:

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Christian [Finnigan] advised this morning 02.04.14 at approximately 9.25am that Peter Booth – Geelong CFMEU Organiser, was on his way to site to undertake a meeting with site employes in response to a Melbourne base CFMEU organiser being arrested on a Kane site earlier this morning. I advised Christian Peter must come the site office upon arrival. Just prior to 9:50 am Jim Wansink C&D Plumbing verbally advised myself that site employees were being advised to pack up & leave immediately, from this I went directly to the site amenities area were [sic] Christian confirmed Peter came straight into site told everyone to leave & has since left (Peter was on site for 10 minutes max) Christian confirmed they were ‘Walking’ as directly [sic] by the CFMEU. Christian also advised the CFMEU members voted on this & all were in agreement.

It is not established by this evidence, or otherwise, that the workers were in the amenities area

consequent upon their failure or refusal to perform work.

80 As to Booth’s liability for organising the industrial action constituted by the workers’

departure from site, it was submitted on behalf of the respondents that it was well within the

bounds of reasonable probability that Booth went no further than to report to the workers the

fact that Powell had been arrested at the Aquanation site, and that, from there, it was the

workers themselves who took the initiative in taking industrial action. In the absence of

evidence from Booth or Finnigan – or, for that matter, from anyone present at the meeting –

that was a very ambitious submission. The terms of the industrial action notification form,

referred to above, also count strongly against the respondents’ submission. Notwithstanding

the evidence here that the workers voted unanimously to leave the site, that they did so was –

both as to timing and as to the outcome – the result of Booth’s intervention. The industrial

action which followed was, I would infer without hesitation, organised by him.

81 I thus hold that Booth directly contravened s 417(1) at the Geelong Hospital site on 2 April

2014.

82 For reasons given above in relation to Powell, I hold, pursuant to s 557(1) of the FW Act, that

Booth contravened s 417(1) once only on 2 April 2014, notwithstanding that the employees

concerned were covered by different enterprise agreements.

83 Because of Booth’s position as an employed organiser, the CFMEU was also a contravener

pursuant to s 793(1)(a).

MERCY PLACE

84 On 2 April 2014, Aiden Topia, Robert Kohn and David Giblett, all employees of Kane

covered by the Kane EA, were rostered to perform building work at the Mercy Place site.

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85 On that day, Kane had engaged a number of sub-contractors to carry out work at the Mercy

Place site. Each of those sub-contractors had rostered one or more employees to perform

work there as required. The sub-contractors, and the number of employees so rostered in

each case, were Deca Constructions Pty Ltd (9 employees), PMC Enterprises (Aust) Pty Ltd

(9 employees), Rising Star Interior Pty Ltd (7 employees), Precision Fire Protection Pty Ltd

(3 employees), Nuvogroup (Australia) Pty Ltd (7 employees) and Gaffco Pty Ltd (8

employees). In each case, an enterprise agreement made and approved under Pt 2-4 of the

FW Act, which had not passed its nominal expiry date, covered the employees concerned in

relation to the work done by them at the Mercy Place site. The first three of these agreements

also covered the CFMEU.

86 At about 9:30 am on that day, the respondent Long entered the site, approached the Site

Manager, Stephen Walker, and the Project Manager, Sam Birdseye, and had the following

conversation with them:

Long: One of the union officials has been locked up for trespassing at the Ringwood job and I would like to talk to the boys.

Birdseye: You can’t come onto site and do this.

Long: I can and I’m going to.

Walker: No you can’t come onto site and do this, its industrial action.

Long: I’m going to see the guys.

After this conversation, Long walked to the site sheds and spoke to workers, including Topia,

Kohn, Giblett and the employees of the sub-contractors referred to above. Those workers

immediately left the site and gathered outside on Sandringham Road for a meeting with

Long. Walker and Birdseye informed the workers that the meeting constituted unprotected

industrial action, and that, if they remained at the meeting and did not return to work, they

would have to be docked a minimum of four hours. They all remained at the meeting. Long

addressed them for about five minutes, after which the employees of the sub-contractors (but

not of Kane) did not return to work for the rest of that day.

87 Insofar as these workers failed to return to work after meeting with Long on Sandringham

Road, their conduct amounted to industrial action within s 19 of the FW Act.

88 It was alleged by the applicant that the workers’ attendance at that meeting was also

industrial action. On the pleadings, I could not uphold that allegation. However, more detail

was provided in the evidence. In Kane’s “Code and Guidelines – Breach Reporting Form”

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for this site on 2 April 2014, it was recorded that, at the time when Long instructed the

workers to follow him for the off-site meeting, they were performing productive work. By

attending the meeting the workers were, therefore, engaging in industrial action within s 19 of

the FW Act.

89 With respect to Long’s liability under s 417 of the FW Act, the direct documentary evidence

is sufficient to sustain the finding, which I make, that he organised so much of the industrial

action as was constituted by the workers’ attendance at the meeting. They were given the

opportunity to return to work, thus avoiding the sacrifice of four hours’ pay, and chose not to

do so. Apropos the continuation of the meeting, therefore, the fact that the workers had

already made that sacrifice could not stand as an explanation for the industrial action which

they took. Apropos the subsequent failure of the workers to return to work, there is a strong

inference that Long organised them to take that industrial action. I accept that, by then, the

workers were aware that they had already lost four hours’ pay and that any incentive they

might otherwise have had to return to work was at least weakened by that circumstance, but I

do not regard this as compromising, to any material extent, the applicant’s inferential case

that Long organised the workers to depart from the site for the remainder of the day. In the

absence of evidence by Long or by any worker who was at the meeting convened and

addressed by him, I accept that case. In relation to the employees of Kane, Deca

Constructions Pty Ltd, PMC Enterprises (Aust) Pty Ltd and Rising Star Interior Pty Ltd, by

organising the industrial action Long directly contravened s 417.

90 In relation to the employees of the other sub-contractors referred to in para 85 above, Long is

not liable directly under s 417, since the CFMEU itself was not covered by the relevant

enterprise agreements. The employees themselves were covered, and thus subject to s 417

under subs (2)(a), but, as with Powell on the same day, there is nothing from which I could

infer that Long knew of that coverage. Thus, to the extent that the applicant’s case seeks to

make him liable by way of s 550 in relation to these employees, I reject it.

91 For reasons given above in relation to Powell, I hold, pursuant to s 557(1) of the FW Act, that

Long contravened s 417(1) once only on 2 April 2014, notwithstanding that the employees

concerned were covered by different enterprise agreements. I also take the view that,

although organising the stop-work meeting and organising the employees’ failure to return to

work involved factually separate instances of industrial action, each of which was organised

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by Long, they arose out of the same course of conduct and amounted to a single

contravention under s 557(1).

92 I thus hold that Long contravened s 417(1) once at the Mercy Place site on 2 April 2014.

93 Because of Long’s position as an employed organiser, the CFMEU was also a contravener

pursuant to s 793(1)(a).

94 On 22 May 2014, Topia and William Moohan (also an employee of Kane covered by the

Kane EA) were rostered to perform building work at the Mercy Place site. On that day, Kane

had engaged a number of sub-contractors to carry out work at the site. Each of those sub-

contractors had rostered one or more employees to perform work there as required. The sub-

contractors, and the number of employees so rostered in each case, were Air Alliance Pty Ltd

(2 employees), AD McCulloch Pty Ltd (2 employees) and Schindler Lifts Australia Pty Ltd

(3 employees). In each case, an enterprise agreement made and approved under Pt 2-4 of the

FW Act, which had not passed its nominal expiry date, covered the employees concerned in

relation to the work done by them at the site, but not the CFMEU.

95 At about 1:30 pm on 22 May 2014, the respondents Benstead and Myles attended the site.

Walker asked to see their right of entry permits. They refused to produce any permit, and

said that they would stay on the site without a permit. The following conversation ensued:

Walker: Have you been to the office downstairs

Benstead and Myles: No

Walker: Have you come for safety reasons? If so, can I see your permits?

Benstead and Myles: No, we don’t care

Walker: You need to leave site, or I’ll call the police

Benstead and Myles: Call the police, don’t care

Walker: How many of you are on site. For safety reasons, I need to know how many of you are here.

Myles: There’s eight of us

Walker refused to allow Benstead and Myles to enter the site. He directed them to leave,

failing which he would call the police. Benstead and Myles then moved quickly through the

site, shouting to workers that they were to walk off the site to have a meeting with them

outside the front of the site.

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96 At the direction of Walker, Birdseye then called the police. Walker followed Benstead and

Myles and again directed that they leave the site. They again refused to leave the site, saying,

“we’re not leaving, we’re getting the men off site and having a meeting”. At about 2:00 pm,

a number of workers, including Topia, Moohan and the employees of the sub-contractors

referred to above, gathered outside the front of the site. Birdseye addressed them, saying that

if they refused to return to work immediately it would be considered industrial action and

they would lose four hours’ pay. At about this time, the police arrived at the site, and Myles

ran away when he saw them. Benstead, however, remained at the site and spoke to the

police. At the conclusion of the meeting, a number of workers, including Moohan and the

employees of the sub-contractors referred to above, left the site.

97 This conduct on the part of the workers who left the site at the instance of Benstead and

Myles was industrial action within s 19 of the FW Act, as was the conduct on the part of

those of them who departed for the day at the conclusion of the meeting.

98 It is beyond argument that the industrial action taken by Topia and Moohan (including, in the

case of the latter, his departure for the day) was organised by Benstead and Myles, and

amounted to a contravention of s 417(1) by them. For so much of this conclusion as relates

to these employees leaving the site for a meeting with Benstead and Myles, no process of

inference is necessary. For so much as relates to Moohan departing for the day, in the

absence of evidence by Benstead and Myles, the inference that the action was organised by

them is irresistible. For the same reasons as I gave in relation to the industrial action taken on

2 April 2014 (see para 89 above), I take the view that no difference was made by the

circumstance that Moohan was warned that if he remained at the meeting he would lose four

hours’ pay. In these respects, Benstead and Myles directly contravened s 417.

99 In relation to the employees of the sub-contractors, Benstead and Myles are not liable directly

under s 417, since the CFMEU itself was not covered by the relevant enterprise agreements.

The employees themselves were covered, and thus subject to s 417 under subs (2)(a), but, as

with Powell on 2 April 2014, there is nothing from which I could infer that Benstead or

Myles knew of that coverage. Thus, to the extent that the applicant’s case seeks to make

them liable by way of s 550 in relation to these employees, I reject it.

100 I take the view that, although organising the stop-work meeting and organising the departure

from site involved factually separate instances of industrial action, each of which was

- 27 -

organised by each of Benstead and Myles, they arose out of the same course of conduct and

amounted to a single contravention under s 557(1).

101 I thus hold that each of Benstead and Myles contravened s 417(1) once at the Mercy Place

site on 22 May 2014.

102 Because of Benstead’s and Myles’ positions as employed organisers, the CFMEU was also a

contravener pursuant to s 793(1)(a). But I do not hold that the CFMEU contravened twice

(once in respect of each of Benstead and Myles). It was the conduct of these organisers, not

their contraventions, which was attributed to the CFMEU under s 793. I make only one

determination that the CFMEU organised industrial action at the Mercy Place site on 22 April

2014, notwithstanding that it was by two co-operating human agencies that it did so.

OWEN DIXON CHAMBERS WEST

103 On 2 April 2014, Stephen Battaglene, Terry Meehan and Jose Alberto Silva, all employees of

Kane covered by the Kane EA, were rostered to perform building work at the ODC West site.

104 On that day, Kane had engaged a number of sub-contractors to carry out work at the ODC

West site. Each of those sub-contractors had rostered one or more employees to perform

work there as required. The sub-contractors, and the number of employees so rostered in

each case, were Anova Electrical Pty Ltd (6 employees), Dynamic Fire Systems Pty Ltd (2

employees), Cooke & Dowsett Pty Ltd (4 employees), Otis Elevator Company Pty Ltd (2

employees), Lawler Bricklaying Pty Ltd (3 employees), Select Cranes & Rigging Pty Ltd (4

employees), Peter Welsh Family Trust t/as Skyline Contractors (1 employee) and Precision

Fire Protection Pty Ltd (3 employees). In each case, an enterprise agreement made and

approved under Pt 2-4 of the FW Act, which had not passed its nominal expiry date, covered

the employees concerned in relation to the work done by them at the ODC West site. Of

these agreements, the ones which covered the employees of Lawler Bricklaying Pty Ltd,

Select Cranes and Rigging Pty Ltd and Peter Welsh Family Trust also covered the CFMEU.

105 Between about 9:30 am and 10:00 am, the respondent Christopher arrived at the site,

organised Battaglene, Meehan, Alberto Silva and the employees of the sub-contractors

referred to above to attend a meeting with him in Guests Lane, adjacent to the site, and

addressed the meeting. The employees did not return to work for the rest of that day.

106 This conduct on the part of the workers who attended the meeting in Guests Lane and did not

return to work was industrial action within s 19 of the FW Act. Here I make no distinction

- 28 -

between the meeting and the subsequent failure to return to work: the workers stopped work

to attend the meeting, and did not return.

107 With respect to Christopher’s liability under s 417 of the FW Act, in relation to the

employees of Kane, Lawler Bricklaying Pty Ltd, Select Cranes & Rigging Pty Ltd and Peter

Welsh Family Trust the position is relevantly indistinguishable from that with which I have

dealt above in relation to the Mercy Place site on the same day. Neither Christopher nor any

of the workers involved was called to give evidence. It is admitted on the pleadings that the

meeting was organised by him, and the inference that he likewise organised the refusal to

work for the balance of the day is irresistible. In these respects, Christopher directly

contravened s 417.

108 In relation to the employees of the other sub-contractors referred to in para 104 above,

Christopher is not liable directly under s 417, since the CFMEU itself was not covered by the

relevant enterprise agreements. The employees themselves were covered, and thus subject to

s 417 under subs (2)(a), but, as with Powell on the same day, there is nothing from which I

could infer that Christopher knew of that coverage. Thus, to the extent that the applicant’s

case seeks to make him liable by way of s 550 in relation to these employees, I reject it.

109 For reasons given above in relation to Powell, I hold, pursuant to s 557(1) of the FW Act, that

Christopher contravened s 417(1) once only on 2 April 2014, notwithstanding that the

employees concerned were covered by different enterprise agreements.

110 Because of Christopher’s position as an employed organiser, the CFMEU was also a

contravener pursuant to s 793(1)(a).

111 On 22 May 2014, Meehan, Silva and Anthony Dredge (also an employee of Kane covered by

the Kane EA) were rostered to perform building work at the ODC West site. On that day,

Kane had engaged two sub-contractors to carry out work at the site. Each of those sub-

contractors had rostered one or more employees to perform work there as required. The sub-

contractors, and the number of employees so rostered in each case, were Anova Electrical Pty

Ltd (7 employees) and Cooke & Dowsett Pty Ltd (2 employees). In each case, an enterprise

agreement made and approved under Pt 2-4 of the FW Act, which had not passed its nominal

expiry date, covered the employees concerned in relation to the work done by them at the

site, but not the CFMEU.

- 29 -

112 At about 12:10 pm on 22 May 2014, Christopher attended the site. The Site Manager, Mark

Hughes, met with Christopher outside the site and asked him what was the purpose of his

attendance. Christopher said that he wanted to have a meeting with CFMEU members.

Hughes refused to permit Christopher to enter the site. At about 12:15 pm, Christopher

organised a meeting of workers, including Meehan, Silva, Dredge and the employees of the

sub-contractors referred to above, at the rear of Guests Lane adjacent to the site. Christopher

addressed that meeting, at which a vote was taken (according to Kane’s Breach Reporting

Form which was received into evidence without objection) “to remove labour from the site

for the rest of the day”. At about 12:30 pm, the workers left the site.

113 This conduct on the part of the workers who attended the meeting in Guests Lane and did not

return to work was industrial action within s 19 of the FW Act.

114 With respect to Christopher’s liability under s 417 of the FW Act, it is admitted on the

pleadings that the meeting was organised by him, and, in the absence of evidence from him or

anyone else who attended the meeting, the inference that he likewise organised the refusal to

work for the balance of the day is irresistible. In relation to the employees of Kane,

Christopher thereby directly contravened s 417.

115 In relation to the employees of the sub-contractors, Christopher is not liable directly under s

417, since the CFMEU itself was not covered by the relevant enterprise agreements. The

employees themselves were covered, and thus subject to s 417 under subs (2)(a), but, as with

Powell on 2 April 2014, there is nothing from which I could infer that Christopher knew of

that coverage. Thus, to the extent that the applicant’s case seeks to make him liable by way

of s 550 in relation to these employees, I reject it.

116 For reasons given above in relation to Powell on 2 April 2014, I hold, pursuant to s 557(1) of

the FW Act, that Christopher contravened s 417(1) once only on 22 May 2014,

notwithstanding that the employees concerned were covered by different enterprise

agreements. I also take the view that, although organising the stop-work meeting and

organising the employees’ failure to return to work might be perceived as involving two

factually separate instances of industrial action, each of which was organised by Christopher,

they arose out of the same course of conduct and amounted to a single contravention under s

557(1).

- 30 -

117 I thus hold that Christopher contravened s 417(1) once at the Owen Dixon Chambers West

site on 22 May 2014.

118 Because of Christopher’s position as an employed organiser, the CFMEU was also a

contravener pursuant to s 793(1)(a).

ST JOHN OF GOD HOSPITAL

119 On 2 April 2014, David Dryden, Frank Brady, David Eldridge, Jeffrey Westhead and

Laurence Anderson, all employees of Kane covered by the Kane EA, were rostered to

perform building work at the SJOG site.

120 On that day, Kane had engaged a number of sub-contractors to carry out work at the SJOG

site. Each of those sub-contractors had rostered one or more employees to perform work

there as required. The sub-contractors, and the number of employees so rostered in each

case, were Jampat Family Pty Ltd t/as Polaris Constructions (7 employees), Norris Plant Hire

(Geelong) Pty Ltd (2 employees) and AJA Industries Australia Pty Ltd t/as Jacaranda

Industries (3 employees). In each case, an enterprise agreement made and approved under Pt

2-4 of the FW Act, which had not passed its nominal expiry date, covered the employees

concerned in relation to the work done by them at the SJOG site. Each of those agreements

also covered the CFMEU.

121 At about 10:25 am, Dryden told the Site Manager, Sam Gallagher, that the respondent Booth

was attending the site. Shortly afterwards, Booth arrived at the site, organised Dryden,

Brady, Eldridge, Westhead, Anderson and the employees of the sub-contractors referred to

above to attend a meeting with him at the site sheds and addressed the meeting. Gallagher

approached Booth at the site sheds and the following conversation ensued:

Gallagher: Why are you on site?

Booth: You know what is happening.

Gallagher: You better not stop my concrete pour.

Booth: I won’t be stopping the concrete pour you have my guarantee.

Gallagher: Are you sending guys home.

Booth: No they will be voting.

Gallagher: You need to show a federal right of entry permit, you are trespassing and need to leave.

Booth: You know I can’t leave.

- 31 -

Gallagher: I will be calling the police then.

Booth: You do what you have to do and I will do what I have to do.

At about 10:45 am, immediately after the meeting, Booth left the site. The workers who had

been at the meeting, including those referred to above, left the site and did not return to work

for the rest of that day.

122 This conduct on the part of the workers – both meeting with Booth in the sheds and then

leaving the site – was industrial action within s 19 of the FW Act.

123 With respect to Booth’s liability under s 417 of the FW Act, it was submitted on behalf of the

respondents that “the inference that Booth told the workers to leave for the day is directly

inconsistent with the facts asserted … and admitted”. This was a reference, of course, to

Booth’s statement that he would not be sending the guys home, but that they would be voting.

But the inference which the applicant asks the court to draw is that Booth organised the

industrial action. The circumstance that the workers voted is not inconsistent with Booth

having organised them to vote to leave the site and to act accordingly. There is no suggestion

of anything at the SJOG site as such that would have moved the workers to cease work. The

respondents were best placed to inform the court why Booth attended the site and caused the

workers to vote on the matter; and to lead evidence about what happened at the meeting.

Their failure to do so gives me confidence to call the events concerned as what they clearly

appeared to be: Booth coming to the site with an agenda which did not relate to the site as

such, and prevailing on the workers to cease work and to leave the site. Whether the workers

voted or not, the inference that Booth organised the industrial action is irresistible. In doing

so, he directly contravened s 417.

124 For reasons given above in relation to Powell, I hold, pursuant to s 557(1) of the FW Act, that

Booth contravened s 417(1) once only on 2 April 2014, notwithstanding that the employees

concerned were covered by different enterprise agreements. I also take the view that,

although organising the stop-work meeting and organising the employees’ failure to return to

work involved factually separate instances of industrial action, each of which was organised

by Booth, they arose out of the same course of conduct and amounted to a single

contravention under s 557(1).

125 I thus hold that Booth contravened s 417(1) once at the SJOG site on 2 April 2014.

- 32 -

126 Because of Booth’s position as an employed organiser, the CFMEU was also a contravener

pursuant to s 793(1)(a).

127 On 22 May 2014, Dryden and Westhead were rostered to perform building work at the SJOG

site.

128 At about 12:10 pm on 22 May 2014, Booth and the respondent Murphy were standing outside

the lunch room at the site talking to workers. The Site Manager, Ian Rankin and the Contract

Manager, Chris Bainbridge, approached Booth and Murphy and asked to know the purpose of

their visit. The following conversation ensued:

Rankin: What is the purpose of your visit?

Murphy: OH&S.

Rankin: OH&S in relation to what?

Murphy: The crane down the road.

Rankin: The crane has nothing to do with this site. Can I see your right of entry permits?

Booth: You can ask for them, but we’re not showing you anything.

Rankin: I want you both to leave immediately.

Booth: Nah, we’re not leaving.

Bainbridge: You’re on site illegally. I’m calling the police to have you removed.

Booth: You can call Dick Tracey for all we care.

129 At about 12:15 pm, most of the workers on the site, including Dryden and Westhead,

gathered in the lunch room at the site to meet with Booth and Murphy. Murphy requested

that Bainbridge leave the meeting to give them some privacy, but Bainbridge refused to do so

and the following conversation between them ensued:

Murphy: Can you give us some fucking privacy?

Bainbridge: No, we’ve asked you to leave. I’m going to stay here until the police arrive.

Murphy: Think about what you’re fucking doing Chris, you’re going to have to fucking explain this to Richard Sutterby.

Bainbridge: I’m going to stay here until you leave.

Murphy: Have it your way, we’ll take this off site.

- 33 -

Sutterby was a director of Kane. Murphy then gestured to the workers present at the meeting

to follow him and Booth, and they led the workers to the rear door of the site on Little Myers

Street. At about 12.20 pm, the workers left the site.

130 In this instance, because of the timing of the visit of Booth and Murphy, the absence of any

allegation, or evidence, that they called the workers away from performing work and the fact

that the meeting that they held with the workers was in the lunch room, I accept the

respondents’ submission that the applicant has not established that the meeting as such

constituted industrial action within s 19 of the FW Act. However, the departure of the

workers from the site was industrial action by them.

131 In the absence of evidence from Booth, Murphy or any of those who accompanied them to

the rear door of the site, the inference that these two organisers organised the industrial action

in which the workers engaged is irresistible. By organising Dryden and Westhead to leave

the site for the day, Booth and Murphy directly contravened s 417.

132 Because of Booth’s and Murphy’s positions as employed organisers, the CFMEU was also a

contravener pursuant to s 793(1)(a).

133 The only other comment I would make about the events of 22 May 2014 at the SJOG site is

that Murphy’s transparently groundless invocation of occupational health and safety as a

pretext for entering the site reflected badly on him and on his employer. Were it to become

commonplace, conduct of this kind could only tend to undermine the legitimacy of such

genuine health and safety concerns as might be expressed by the CFMEU from time to time,

to the long-term detriment of workers in the industry. Regrettably, in his submission counsel

for the respondents noted the allegation (which had been admitted) that Murphy had told

Rankin that the purpose of his visit was occupational health and safety, and neither expressed

any reservation about that statement nor dissociated his clients from Murphy’s conduct in

making it.

BUPA

134 On 2 April 2014, Lee McKenzie and Matthew Preece, both employees of Kane covered by

the Kane EA, were rostered to perform building work at the BUPA site. McKenzie was a

member of the CFMEU and an officer or agent of the CFMEU or the Branch.

135 On that day, Kane had engaged a number of sub-contractors to carry out work at the BUPA

site. Each of those sub-contractors had rostered one or more employees to perform work

- 34 -

there as required. The sub-contractors, and the number of employees so rostered in each

case, were Nuvogroup (Australia) Pty Ltd (7 employees), Hall Construction Group Pty Ltd (7

employees) and Deca Constructions Pty Ltd (2 employees). In each case, an enterprise

agreement made and approved under Pt 2-4 of the FW Act, which had not passed its nominal

expiry date, covered the employees concerned in relation to the work done by them at the

BUPA site. The second and third of these agreements also covered the CFMEU.

136 At about 10:20 am, McKenzie told the Site Manager, David Wade, that he was going to hold

a meeting with CFMEU members. Wade told McKenzie not to do that as it would be

industrial action. But about 30 (out of a total of 40-50) workers on site, including Preece and

workers employed by the sub-contractors referred to above, did gather together, with

McKenzie, in front of the site sheds. Addressing the workers, McKenzie said that, due to a

CFMEU organiser being arrested on a separate Kane site, he advised members to leave site.

This was the evidence of Wade himself, who heard McKenzie addressing the workers. Under

cross-examination, he adhered to that evidence consistently and credibly. Having been

addressed by McKenzie, the group of workers dispersed and commenced to pack up their

gear. Wade told them that the site would remain open, and if they left it would be industrial

action. He told them that, if they left the site, they would be docked four hours’ pay.

137 Wade then spoke to McKenzie. He said that what he had done was illegal industrial action,

and he (Wade) was going to have to report it. McKenzie’s response was that he understood,

but he had to do it. As Wade was returning to the site office, he noticed the workers who had

been at the meeting with McKenzie leaving the site. He took it that they were all the

CFMEU members, because, after they left, the only workers remaining on site were the

electricians and the plumbers. It was about 10:30 am when the workers left the site, and they

did not return for the remainder of that day.

138 This conduct on the part of the workers who attended the meeting with McKenzie and did not

return to work was industrial action within s 19 of the FW Act. In this instance I take the

view that attendance at the meeting and the failure to return to work were, s 557 aside for the

moment, separate engagements in industrial action by these workers. McKenzie himself, of

course, was one of them.

139 As a pure matter of fact, and in the absence of evidence on the point on behalf of the

respondents, I have no hesitation in finding that McKenzie organised both the meeting and

the failure to return to work. Wade’s intimation to the workers that they would be docked

- 35 -

four hours’ pay if they left the site was made only after the meeting and as the workers were

in the process of leaving. It could not have had any impact upon the decision which they had,

by then, made to take industrial action. No worker was faced with a situation in which, at the

time that he or she decided to take industrial action, four hours’ pay had already been

sacrificed. The intimation was, therefore, irrelevant to the question whether the action was

organised by McKenzie.

140 The next question is whether, by McKenzie’s conduct, the CFMEU contravened s 417(1). It

is established on the pleadings that McKenzie was an “officer or agent” of the CFMEU. That

was not a very good form of pleading, since the respondents’ admission of the allegation

amounts to no more than that McKenzie was either an officer or an agent. It does not amount

to an admission that he was an officer. That might have been treated as the merest of

pleading points were it not for the fact that, in his final address, counsel for the respondents

pointed out, correctly, that the evidence in the case (led by counsel for the applicant) went no

further than to establish that McKenzie was the site occupational health and safety

representative of the employees of Kane. He was not, therefore, an officer of the CFMEU.

But, on the pleadings, he must therefore have been the CFMEU’s agent. That he was indeed

the CFMEU’s agent ad hoc on 2 April 2014 has the support of the following passage in

Kane’s industrial action notification form for the site, admitted into evidence without

objection: “Lee received a call from a CFMEU organiser instructing him to hold a meeting

and sent all members off site.”

141 Under s 793(1)(a) of the FW Act, therefore, McKenzie’s conduct – as distinct from his

liability for a contravention – was attributed to the CFMEU. Having engaged in that conduct,

in relation to the industrial action taken by employees of Hall Construction Group Pty Ltd

and Deca Constructions Pty Ltd, the CFMEU was brought within the purview of s 417(1) by

para (a) of subs (2). For the CFMEU to have been liable, McKenzie did not need to be an

officer within the meaning of para (b) of that subsection. Since McKenzie’s conduct

amounted to organising industrial action, the CFMEU itself is taken to have contravened the

section.

142 In relation to the employees of Nuvogroup (Australia) Pty Ltd, the CFMEU is not liable

directly under s 417, since it was not covered by the relevant enterprise agreement. The

employees themselves were covered, and thus subject to s 417 under subs (2)(a), but, as with

Powell on the same day, there is nothing from which I could infer that McKenzie knew of

- 36 -

that coverage. Thus, to the extent that the applicant’s case seeks to make the CFMEU liable

by way of s 550 in relation to these employees, I reject it.

143 For reasons given above in relation to Powell, I hold, pursuant to s 557(1) of the FW Act, that

the CFMEU contravened s 417(1) once only on 2 April 2014, notwithstanding that the

employees concerned were covered by different enterprise agreements. I also take the view

that, although the stop-work meeting and the employees’ failure to return to work involved

factually separate instances of industrial action, each of which was organised by McKenzie,

they arose out of the same course of conduct and gave rise to a single contravention by the

CFMEU under s 557(1).

144 I thus hold that the CFMEU contravened s 417(1) once at the BUPA site on 2 April 2014.

EMPORIA

145 On 22 May 2014, Graham Sparnenn, Ian Bligh, Robert Wyatt, Spyridon Karefylakis and

Armand Selvon, all employees of Kane covered by the Kane EA, were rostered to perform

building work at the Emporia site.

146 On that day, Kane had engaged a number of sub-contractors to carry out work at the site.

Each of those sub-contractors had rostered one or more employees to perform work there as

required. The sub-contractors, and the number of employees so rostered in each case, were

IND Window Fabrications Pty Ltd (8 employees), Chadoak Pty Ltd t/as Chadoak Plumbing

& Drainage (12 employees), Westkon Precast Concrete Pty Ltd (2 employees), and

McKinnons Decorative Finishes Pty Ltd (4 employees). In each case, an enterprise

agreement made and approved under Pt 2-4 of the FW Act, which had not passed its nominal

expiry date, covered the employees concerned in relation to the work done by them at the

Emporia site. Each of those agreements, save that which covered the employees of Chadoak

Pty Ltd, also covered the CFMEU.

147 At about 11:55 am on 22 May 2014, the respondents Beattie and Perkovic entered the

Emporia Site to address a number of workers, including Sparnenn, Bligh, Wyatt, Karefylakis,

Selvon and the employees of the sub-contractors referred to above, who were at that time in

the lunch room. The Senior Site Manager, Justin Shimmin, spoke to Beattie and Perkovic,

and the following conversation ensued:

Shimmin: Hello Billie, what’s your reason for your visit?

Beattie: I’m not fuckin’ giving you any reasons for anything today, you fuckin’ do

- 37 -

what you’ve got to do. I’m having a meeting with the boys.

Shimmin: I’ll have to call the Police.

Beattie and Perkovic then entered the lunch room of the Emporia Site, and shut the door on

Shimmin. Shimmin attempted to enter the lunch room, but was locked out. At about 12:00

noon, he called the police. At about 12:05 pm, Perkovic came out of the lunch room.

Shimmin told him that he had called the police, and Perkovic responded, “that’s what we

want”, and went back into the lunch room. At around 12:15 pm, the workers who had been

with Beattie and Perkovic in the lunch room left the site.

148 Here I make the same findings as I have done in para 130 above in relation to the industrial

action taken at the SJOG site on 22 May 2014. Indeed, as noted above, the workers were in

the lunch room at the time of the arrival of Beattie and Perkovic. So, to the extent that the

workers remained there to hear what the organisers had to say, they did not, I would hold,

engage in industrial action. But for them to leave the site after their meeting with the

organisers was industrial action within s 19 of the FW Act.

149 In the absence of evidence from Beattie, Perkovic or any of those who left the site after

meeting with them, the inference that these two organisers organised the industrial action in

which the workers engaged is irresistible. In relation to the employees of Kane and of all of

the sub-contractors save Chadoak Pty Ltd, Beattie and Perkovic directly contravened s 417.

150 In relation to the employees of Chadoak Pty Ltd, Beattie and Perkovic are not liable directly

under s 417, since the CFMEU itself was not covered by the relevant enterprise agreement.

The employees themselves were covered, and thus subject to s 417 under subs (2)(a), but, as

with Powell on 2 April 2014, there is nothing from which I could infer that Beattie or

Perkovic knew of that coverage. Thus, to the extent that the applicant’s case seeks to make

them liable by way of s 550 in relation to these employees, I reject it.

151 For reasons given above in relation to Powell on 2 April 2014, I hold, pursuant to s 557(1) of

the FW Act, that each of Beattie and Perkovic contravened s 417(1) once only on 22 May

2014, notwithstanding that the employees concerned were covered by different enterprise

agreements.

152 I thus hold that each of Beattie and Perkovic contravened s 417(1) once at the Emporia site

on 22 May 2014.

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153 Because of Beattie’s and Perkovic’s positions as employed organisers, the CFMEU was also

a contravener (once) pursuant to s 793(1)(a).

EPWORTH HOSPITAL

154 On 22 May 2014, Stephen Battaglene, an employee of Kane covered by the Kane EA, was

rostered to perform building work at the Epworth site.

155 On that day, Kane had engaged Delta Pty Ltd to carry out work at the site. It had rostered six

employees to perform work there as required. An enterprise agreement made and approved

under Pt 2-4 of the FW Act, which had not passed its nominal expiry date, covered the

employees concerned in relation to the work done by them at the Epworth site. The

agreement also covered the CFMEU.

156 At about 12:00 noon on 22 May 2014, the respondent Theodorou approached the Epworth

site. The Senior Site Manager, Daniel Glanfield, met Theodorou outside the site in Erin

Street. Theodorou explained that he wanted to meet with CFMEU members to discuss the

arrest of Clark and Powell at the Aquanation site that morning. Glanfield refused to permit

Theodorou to enter the site. Thereupon about 10 workers on the site, including Battaglene

and the employees of Delta Pty Ltd, gathered around Theodorou and Glanfield in Erin Street.

Addressing those workers, Glanfield said that Theodorou wanted to address them about the

arrests, but it would constitute industrial action, and if they did not return to work they would

be docked four hours’ pay. The workers, including Battaglene, remained at the meeting with

Theodorou, following which a number of them left the site. At about 12:15 pm, Battaglene

returned to the site and told Glanfield that the workers had voted to leave the site.

157 What I have said in the previous paragraph was based on the Amended Statement of Claim

and the respondents’ admissions. Such limited (documentary) evidence as was led in relation

to the Epworth site did not take the matter any further. On the pleadings, there is insufficient

evidence to find that the workers’ attendance at the meeting in Erin Street constituted

industrial action within s 19 of the FW Act. However, it seems clear from what Glanfield

said to them that he did not approve them remaining at the meeting, from which I infer that, if

they did so, they were thereby failing or refusing to perform work. The failure of some of the

workers to return to work after meeting with Theodorou was, of course, industrial action

within s 19 of the FW Act.

- 39 -

158 In the absence of evidence from Theodorou or any of those who met with him in Erin Street,

the inference that he organised the industrial action in which they engaged is irresistible. The

workers remained at the meeting, and thereafter left the site, after they had been told by

Glanfield that, if they did so, they would lose four hours’ pay. The certainty of having

already sacrificed four hours’ pay in any event could not, therefore, have been a factor in

their decisions whether to remain at work or to take industrial action. By organising that

action, Theodorou directly contravened s 417.

159 For reasons given above in relation to Powell on 2 April 2014, I hold, pursuant to s 557(1) of

the FW Act, that Theodorou contravened s 417(1) once only on 22 May 2014,

notwithstanding that the employees concerned were covered by different enterprise

agreements. I also take the view that the organising of the workers’ remaining at the meeting

in Erin Street and of their failure to return to work after the meeting arose out of the same

course of conduct and gave rise to a single contravention by Theodorou under s 557(1).

160 I thus hold that Theodorou contravened s 417(1) once at the Epworth site on 22 May 2014.

161 Because of Theodorou’s position as an employed organiser, the CFMEU was also a

contravener pursuant to s 793(1)(a).

GEELONG LIBRARY

162 On 22 May 2014, Paul McCan, an employee of Kane covered by the Kane EA, was rostered

to perform building work at the Geelong Library site. He was a member of the CFMEU and

an officer or agent of the CFMEU or the Branch.

163 At about 1:10 pm on 22 May 2014, McCan entered the site office and told Sam Gallagher

that the respondents Booth and Murphy were in the nearby Johnston’s Park, and that he

(McCan) was “going to get the members to have a meeting out in the park.” He then led

workers from the site, to the park where they met with Booth and Murphy. Following that

meeting, none of the workers returned to work.

164 Each of McCan’s departure from the site to meet with Booth and Murphy in the park and his

failure to return to work after that meeting was industrial action within s 19 of the FW Act.

165 In the absence of evidence from any of them, the inference that Booth and Murphy organised

the industrial action in which McCan (in both respects) engaged is irresistible. In so doing,

Booth and Murphy directly contravened s 417. I take the view, however, that, although

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organising the meeting in the park and organising McCan’s failure to return to work were

factually separate aspects of the conduct of Booth and Murphy, they were part of one course

of conduct and amounted to a single contravention under s 557(1).

166 Because of Booth’s and Murphy’s positions as employed organisers, the CFMEU was also a

contravener (once) pursuant to s 793(1)(a).

ADVERSE ACTION

167 The applicant alleges that, on 2 April and 22 May 2014, the respondents took adverse action

against Kane and its various sub-contractors, within the meaning of paras (a) and (c) of item

7 in the table in s 342(1) of the FW Act, because Kane engaged in industrial activity by not

complying with what is said to have been a request or requirement of the CFMEU, within the

meaning of s 347(b)(iv) or (e), in contravention of s 346.

168 The first question is whether the CFMEU made a request or requirement of Kane within the

meaning of s 347(b)(iv) or (e). In this area of the case, the respondents opened with a general

submission that this subparagraph was, as a matter of construction, confined to the context of

what was said to be the "participation" of members of industrial associations in the affairs of

those associations, and could not be used in a context in which a request, for example, had

been made of an employer by an association. For convenience, counsel for the respondents

contented himself with relying on the submission which he had made in an unrelated

proceeding which, as chance would have it, I heard at about the same time. Realistically, he

assumed that I would decide this point the same way in both proceedings. I do so. For the

reasons I have given in the Australian Paper Case [2017] FCA 167 at [179]-[194], I reject

the submission.

169 Turning to the question whether there was, in the present case, a request or requirement by

the CFMEU, it was submitted on behalf of the applicant that the CFMEU made three

"implied requests" of Kane within the meaning of s 347(b)(iv) and (e). The first related to

Powell, and was said to be a request for Kane –

(a) not to apply Kane's [right of entry] Procedure to Powell;

(b) not to require Powell, as a condition of entry to the Aquanation Site, to comply with right of entry requirements under the FW Act such as having a right of entry permit, providing minimum notice of entry and producing a right of entry permit upon request of site management;

(c) to allow Powell entry to the Aquanation Site, without notice and without having to comply with right of entry requirements under the FW Act ….

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170 The second related to officials and organisers of the CFMEU generally, and was for Kane –

(a) not to apply Kane's [right of entry] Procedure to officials and organisers of the CFMEU;

(b) not to require officials and organisers of the CFMEU, as a condition of entry to Kane sites, to comply with right of entry requirements under the FW Act such as having a right of entry permit, providing minimum notice of entry and producing a right of entry permit upon request of site management;

(c) [to] allow officials and organisers of the CFMEU entry to Kane sites, without notice and without having to comply with right of entry requirements under the FW Act ….

171 Each of these requests was said to have been extant on 2 April, and on 21 and 22 May, 2014.

172 The third related to Clark (who attended the Aquanation site in company with Powell on 21

and 22 May 2014), and was, mutatis mutandis, in the same terms as the first request referred

to above.

173 As to the first request, from the conduct of Powell on 2 April 2014 and the other facts which

had occurred prior to that time, I would not imply a request in any of the senses referred to.

Indeed, from the conduct of Edwards and Markham at the Casey Hospital site that very

morning, and Edwards' response to Tivendale, I find on the probabilities that the CFMEU had

decided to test Kane's resolve in relation to its right of entry procedures. That is to say, it had

been decided that organisers would enter at least the Casey Hospital site and the Aquanation

site under conditions that were known to fall outside those procedures. The organisers, and

the CFMEU itself, would then find out whether Kane was prepared to enforce those

procedures, and what would happen if it did. That, in my view, is the most obvious

understanding of what would have been involved in "testing" the procedures.

174 Had the CFMEU intended to make a request, or requirement, that the procedures not be

applied, or that an exception be made, in Powell's case, it is difficult to understand why

Powell did not come straight out and express that intention in terms. To the contrary,

Powell's conduct, and statements, at the Aquanation site on 2 April 2014 would have been

understood by Kane as involving calculated defiance of Kane's right to exclude trespassers

from the site over which it had control. The same might be said of Powell's entry to the site

on 21 and 22 May 2014.

175 As to the second request, in the Amended Statement of Claim this was particularised by

reference to the same matters upon which the applicant had relied in relation to the first

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request, and I need say nothing further about that aspect of it. Additionally, the following

particulars were provided:

Over an extended period of time before 2 April 2014, CFMEU officials and organisers had sought entry to various building sites occupied by Kane without having complied with relevant right of entry requirements. Further particulars of this will be provided closer to trial.

176 The only evidence given about events prior to 2 April 2014 was the following, given in chief

by Purcell:

Can you tell the court the question of Kane’s compliance or insistence upon the right of entry procedure had arisen prior to April 2014?---It would be discussed at project level with the relevant organisers at the start of projects or when they entered sites.

And what was the substance of those discussions?---That it was a requirement when entering Kane Constructions sites that they follow the right of entry procedures.

Did anyone from the CFMEU say anything to you about that position?---There would be discussions around whether we had to enforce that and whether we could ignore those rules.

All right. And what was Kane’s position with respect to those discussions?---That we had to follow the procedures set by our clients, and that – that was non-negotiable.

That there had been “discussions around” the subject of present concern is not a sufficient

basis to find that, as at 2 April 2014, there was extant a request or requirement by the

CFMEU not to apply the Kane right-of-entry procedure, or to relax the application of it,

either generally or with respect to particular sites.

177 As to the third request, in the light of the very high-level argumentative case advanced by the

applicant under s 347, there is nothing I would wish to add to what I have already said in

relation to the first request.

178 I would add that there is nothing in the conduct of the other individual respondents on 2 April

and 22 May 2014 that would have given Kane reasonably to interpret that conduct as

involving an implicit request or requirement to relax, or not to apply, its right-of-entry

procedure.

179 Thus I reject the applicant's allegation that Kane engaged in industrial activity within the

meaning of s 347(b)(iv) or (e) of the FW Act. It follows that the applicant's case under s 346

must be dismissed.

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COERCION

180 The applicant's case under s 348 of the FW Act is a reflex of its case under s 346. It relies on

the proposition that it was the intent of the individual respondents to apply sufficient pressure

to Kane to force it to comply with an implied request or requirement expressed in the same

terms as that which underpinned the applicant's s 346 case. For the reasons given above,

there was no such request or requirement. It follows that the applicant's case under s 348

must likewise be dismissed.

DISPOSITION OF THE PROCEEDING

181 I shall list the proceeding for the purpose of hearing the parties on the orders proper to reflect

the success which the applicant has achieved under s 417 of the FW Act, and as to penalties.

I certify that the preceding one hundred and eighty-one (181) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated: 1 March 2017

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SCHEDULE OF PARTIES

VID 261 of 2016

Respondents

Fourth Respondent: STEPHEN LONG

Fifth Respondent: DEREK CHRISTOPHER

Sixth Respondent: BILL BEATTIE

Seventh Respondent: JOHN PERKOVIC

Eighth Respondent: THEO THEODOROU

Ninth Respondent: BRENDAN MURPHY

Tenth Respondent: GERARD BENSTEAD

Eleventh Respondent: JOSEPH MYLES