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Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 (31 May 2018)

Last Updated: 1 June 2018

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83

Appeal from:	Australian Building and Construction Commissioner v Hall (2017) 269 IR 1; [2017] FCA 274
File number:	ACD 25 of 2017
Judges:	TRACEY, REEVES AND BROMWICH JJ
Date of judgment:	31 May 2018
Catchwords:	INDUSTRIAL LAW – appeal from a judgment of the Federal Court of Australia – where the primary judge had found that the Australian Building and Construction Commissioner had failed to establish that employees of the Construction, Forestry, Mining and Energy Union, and the union itself, had contravened ss 340, 343, 355 of the Fair Work Act 2009 (Cth) – whether the primary judge erred in applying the presumptions in ss 360 and 361 of the Fair Work Act 2009 (Cth)
Legislation:	Evidence Act 1995 (Cth) ss 140, 140(2) Fair Work Act 2009 (Cth) Pt 3-1, ss 340, 340(1)(a), 341, 341(1)(b), 341(2)(e), 342(1) item 7(c), 342(2), 343, 343(1)(a), 343(1)(b), 355, 360, 361, 361(1)(a), 361(1)(b), 361(1), 550 Workplace Relations Act 1996 (Cth) s 298V
Cases cited:	Australian Building and Construction Commissioner v Hall (2017) 269 IR 1; [2017] FCA 274 Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 248 CLR 500; [2012] HCA 32 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273; [2015] FCAFC 157 Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150; [2015] FCAFC 76 Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) (2013) 232 IR 290; [2013] FCA 446 Dare v Pulham (1982) 148 CLR 658 Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; [1999] FCA 1108 Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC 72 Esso Australia Pty Ltd v Australian Workers’ Union (2017) 350 ALR 404;  [2017] HCA 54  Gallagher v Cendak [1988] VicRp 70; [1988] VR 731 Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171; [1991] FCA 557 Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424; [2015] FCA 504 Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62
Date of hearing:	31 July, 1 and 2 August 2017
Registry:	Australian Capital Territory
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	128
Counsel for the Appellant:	Ms K Eastman SC with Mr M Seck
Solicitor for the Appellant:	Maddocks
Counsel for the Respondents:	Mr H Borenstein QC with Mr Y Bakri
Solicitor for the Respondents:	Slater & Gordon

ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1. This appeal concerns the operation of the workplace rights protection provisions in Part 3-1 of the Fair Work Act 2009 (Cth) (“the FWA”). It relates to certain activities that took place at, or near, a construction site at Dickson in the Australian Capital Territory (“the ACT”) on 11 to 13 June 2014. A company by the name of Built Pty Ltd (“Built”) was the head contractor on that site for a project to construct the Kim Harvey School of Dance. The construction was to be undertaken from approximately February 2014 to December 2014.
2. Before the primary judge, the Australian Building and Construction Commissioner (“the Commissioner”) alleged that eight officials, organisers or employees of the Construction, Forestry, Mining and Energy Union (“the CFMEU”) had, by their conduct on those days, contravened various provisions of Part 3-1 of the FWA, specifically ss 340, 343 and 355. The Commissioner also alleged that some of those eight persons, and the CFMEU itself, were liable as accessories to the conduct of others, by the operation of s 550 of the FWA. This latter aspect of the Commissioner’s claims can be ignored because it has not been raised in this appeal. After a trial where the primary judge received written and oral evidence from 17 witnesses, his Honour dismissed the Commissioner’s originating application: see Australian Building and Construction Commissioner v Hall (2017) 269 IR 1; [2017] FCA 274. The Commissioner has now appealed a number of aspects of the primary judgment as it relates to four of the eight individual respondents and the CFMEU. Those aspects include the primary judge’s treatment of ss 360 and 361 of the FWA and s 140 of the Evidence Act 1995 (Cth), and the adequacy of his Honour’s reasons for judgment. Before setting out the details of the Commissioner’s grounds of appeal, it is convenient to provide some further factual context to this appeal.

THE PERSONS INVOLVED

3. Mr Dean Hall (the first respondent) was the most senior of the eight individual respondents. He was the Secretary of the ACT Branch of the CFMEU. Mr Jason O’Mara (the fourth respondent) was the Assistant Secretary and the other six individual respondents were all organisers employed by the CFMEU: Mr Kenneth Miller (the second respondent), Mr Zachary Smith (the third respondent), Mr Halafihi Kivalu (the fifth respondent), Mr Garry Hamilton (the sixth respondent), Mr Johnny Lomax (the seventh respondent) and Mr Anthony Vitler (the eighth respondent). This appeal only relates to Mr Hall, Mr O’Mara, Mr Miller, Mr Smith and their employer, the CFMEU.
4. There was also a number of Built personnel involved in the events of 11 to 13 June 2014. They included Mr Adam Moore, the ACT General Manager of Built, Mr Josip Tonkovic, Built’s Senior Project Manager, Mr Andrew Horsham, Built’s Project Engineer, and Mr Norman Ault, the Site Foreman for Built at the Kim Harvey School of Dance construction site. In addition, Mr John Nikolic, the Director of Industrial Relations of the Master Builders Association of the ACT, and Mr Paul Stafford, a Fair Work Building Industry Inspector, were also involved.

THE FACTUAL BACKGROUND

5. The parties submitted a summary of agreed facts to the primary judge. It set out the background to, and basic details of, the events which took place on 11 to 13 June 2014 in the following terms:

Background

13. From approximately February 2014 to December 2014, construction of the Kim Harvey School of Dance was occurring at 11 Rosevear Place, Dickson, in the Australian Capital Territory (the KHSD Project). The KHSD Project involved the construction of a three-storey single building, including an underground carpark.
14. One access gate to the KHSD Project was from Hawdon Place in Dickson (the Hawdon Place Gate), in the Australian Capital Territory (ACT).
15. Access from the Hawdon Place Gate required workers and plant to traverse a block of land owned by Hadwon Pty Ltd (ACN 114 173 634) (the Hadwon Land), in order to access the KHSD Project.
16. Another access gate to the KHSD Project was on Rosevear Place, Dickson in the ACT. Access through the Rosevear Place gate required workers and plant to traverse a carpark used by Pinocchio Childcare Centre, adjacent to the Rosevear Place Gate.

11 June 2014

17. On 11 June 2014, the Hawdon Place Gate was locked.
18. At around 7.30am on 11 June 2014, Hall and O’Mara met with Moore and Tonkovic at the Praga Café in Dickson, ACT (the Praga Café Meeting).
19. At the conclusion of the Praga Café Meeting, Hall returned to the KHSD Project.
20. ACT Policing arrived at the Hawdon Place Gate to the KHSD Project in or around the morning. ACT Police officers spoke to Hall.

12 and 13 June 2014

21. On 12 and 13 June 2014 Built sought to access the KHSD Project via the Rosevear Place Gate.
6. As well, the primary judge recorded the following areas of common ground between the parties at [15] of his reasons for judgment:
   • the gates located at Hawdon Place were first blockaded on 11 June 2014;
   • the gates located at the rear of the carpark to the Pinocchio Early Learning Centre were first blockaded on 12 June 2014; and
   • WorkSafe ACT visited the Project site and issued a number of Prohibition Notices on 13 June 2014, one of which prohibited the “[u]se of Rosevear Place Dickson to access plant and construction equipment onto and from” the Project Site.

The Prohibition Notice issued in respect to the means of accessing the Project Site and issued pursuant to s 195 of the Work Health and Safety Act 2011 (ACT) provided in part as follows:

7. The streets, buildings and other features variously mentioned in the agreed facts and matters of common ground set out above were shown in the following map that the primary judge included in his reasons for judgment at [11]:

8. Paragraph [11] of the reasons also indicated that in this map:

• the Project Site is numbered 28 and labelled the KHSD Project (i.e., the Kim Harvey School of Dance);
  the site numbered 27 is the site of the Pinocchio Early Learning Centre;
  immediately to the north of the site occupied by the Pinocchio Early Learning Centre is the Australian Capital Territory Headquarters of the CFMEU;
  the double triangles depict gates;
  the dotted lines depict temporary fencing; and
  what became known as the Rosevear Place Gate is located at the boundary between sites numbered 27 and 28.

THE GROUNDS OF APPEAL AND THE NOTICE OF CONTENTION

9. The nine grounds of appeal advanced by the Commissioner are as follows:
   1. The primary judge erred by imposing an onus on the Appellant to prove, upon the standard required by Briginshaw, that the negotiations between the CFMEU and Built for the execution of an enterprise agreement formed a part of the Respondents’ reasons for the Blockade on 11, 12 and 13 June 2014 [75], [83]. In so doing, the primary judge incorrectly applied s 361 of the Fair Work Act 2009 (Cth) (FW Act) by requiring the Appellant to prove the reason/s for the Respondents’ actions.
   2. The primary judge incorrectly applied s 361 of the FW Act in deciding whether the ‘objective facts’ were proven. The primary judge did not consider or make findings whether there was a workplace right and adverse action until after the primary judge had reached the conclusion that the Appellant did not discharge his onus of proving the conduct occurred for a prohibited reason.
   3. The primary judge further confused the application of the ‘reverse onus’ in s 361(1) by finding that, because of the failure of the Appellant to prove that the Respondents took action for a proscribed reason, the Respondents discharged their onus of proof in showing they did not take the action for a proscribed reason under s 361 (at [208]–[209] and [211]). The primary judge erroneously relied on this interpretation in concluding that:

(a) Mr Hall held a genuine safety concern which formed the purpose behind the Blockade at [93], [97], [101], [122] and [126];
(b) the purpose intended to be achieved by the Blockade was supported by those safety concerns at [154] and [181]; and
(c) in relation to Mr Miller and Mr Smith, each of them did not take action against Built or organise the Blockade at [194] (despite accepting that each of them did participate in it at [188] and [190]).

4. The primary judge erred in applying s 140 of the Evidence Act 1995 (Cth). In particular the primary judge erred by:

(a) failing to make a factual finding/s about the Praga Café meeting on 11 June 2014. His Honour recited the evidence of Mr Moore at [52] and Mr Hall at [56]–[57], then noted the divergences in their accounts at [58] but failed to make a factual finding/s about what occurred at the Café;
(b) finding that the Appellant failed to discharge his onus of proof with respect to the Praga Café meeting in circumstances where there were no adverse findings about Mr Moore and/or Mr Tonkovic’s credibility but in circumstances where adverse findings were made about the reliability of Mr Hall’s evidence at [60], [61] and [62];
(c) finding that Mr Hall’s “rejection of the Director’s case” was a sufficient ground to find the Appellant had not discharged his burden at [59];
(d) not taking into account the inherent improbability of Mr Hall’s evidence when all of the evidence was considered as a whole;
(e) accepting Mr Hall’s account of the Praga Café meeting based on his credibility and demeanour, in circumstances where the uncontested evidence about the meeting did not, and could not, sufficiently justify such a finding;
(f) failing to consider the evidence of Ms Cairns or any of the Appellant’s witnesses with respect to traffic concerns and as a result the findings at [94]–[97], [181] are manifestly unsound and glaringly improbable;
(g) not taking into account the inherent improbability of Mr Smith’s evidence when all of the evidence was considered as a whole;
(h) not taking into account the inherent improbability of Mr Miller’s evidence when all of the evidence was considered as a whole;
(i) failing to consider the evidence of the Appellant’s witnesses with respect to Mr O’Mara at [195]–[196]; and
(j) failing to have regard to the cumulative effect of the evidence and considering the evidence in isolation.

5. The primary judge incorrectly applied s 360 of the FW Act by failing to consider whether the Respondents’ reasons for taking adverse action included the proscribed reasons alleged by the Appellant. The primary judge:

(a) erroneously concluded that the Respondents’ concern about safety (whether genuinely held or not) was sufficient alone to rebut the presumption;
(b) did not deal with the evidence that the Respondents might have had both genuine safety concerns and other proscribed reasons for taking adverse action; and
(c) as a consequence, did not have regard to whether the discussion between Mr Moore and Mr Hall surrounding the proposed enterprise agreement that occurred in tandem with the Blockade was a substantial or operative reason sufficient to establish a proscribed reason.

6. The primary judge failed to give any reasons for apparently rejecting Mr Moore’s evidence with respect to the Praga Café meeting at [60].
7. The primary judge failed to give any reasons for apparently rejecting Mr Tonkovic’s evidence with respect to the Praga Café meeting at [60].
8. The primary judge failed to give any reasons for apparently rejecting Mr Ault’s evidence with respect to Mr Smith’s statement that action was about an EBA [enterprise bargaining agreement] issue at [105], [106], [120]–[123], [157], [189], [190], [193].
9. The primary judge failed to give any reasons for apparently rejecting Mr Horsham, Mr Ault, Mr Nikolic and Mr Stafford’s evidence with respect to Mr Miller’s statement that action was because Built did not have a EBA at [110], [111], [114]–[117], [125], [126], [156], [157], [188]–[189].

(Headings omitted.)

10. As well, the CFMEU filed an amended notice of contention in which it challenged the following three aspects of the primary judgment:
    1. His Honour should have found that the closure of the Hawdon Place Gate on 11 June 2014 was conduct of the owner of the land over which the right of access was granted and accordingly, there was no adverse action within the meaning of section 342 of the Fair Work Act 2009 (Cth) (FW Act) taken by the First, Second, Third and Fifth Respondents
    2. The Appellant failed to discharge his onus of proof with respect to the causation by the Respondents or any of them, of any, or any sufficient prejudice to Built within the meaning of item 7(c) of section 342 of the FW Act, in relation to its contract with Jete Pty Ltd (Jete) on any of 11, 12 or 13 June 2014.
    3. The Appellant failed to discharge his onus of proof with respect to whether any of the First, Second, Third and Fourth Respondents took adverse action and or contravened section 343 of the FW Act and/or section 355 of the FW Act by “organising” a blockade on each of 11, 12 and 13 June 2014 as pleaded in the Amended Statement of Claim.

(Emphasis in the original.)

THE CENTRAL ROLE OF SECTIONS 360 AND 361 IN THIS APPEAL

11. It can be seen from these grounds of appeal that one of the central issues in this appeal is the way in which the primary judge approached the onus or burden of proof having regard to the provisions of ss 360 and 361 of the FWA. This issue is raised directly by grounds of appeal 1, 2, 3 and 5 above. Specifically, grounds of appeal 1 and 2 allege that the primary judge incorrectly applied s 361, ground of appeal 3 alleges that the primary judge confused the application of the reverse onus in s 361(1), and ground of appeal 5 alleges that the primary judge incorrectly applied s 360.
12. Those two sections provide:

360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to orders for an interim injunction.

13. Stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Part 3-1 of the FWA to “prove otherwise” than that he or she took the contravening action for the particular reason, or with the particular intent, alleged in the applicant’s application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned that the contravening action was taken for that particular reason or with that particular intent. Before this presumption operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise. The word “particular” in s 361(1)(a) must be given its ordinary and natural meaning. Relevantly, that is: “2. being a definite one, individual, or single, or considered separately: each particular item. 3. distinguished or different from others or from the ordinary; noteworthy; marked; unusual. ... 6. dealing with or giving details, as an account, description, etc., of a person; detailed; minute; circumstantial”. See Susan Butler (ed), Macquarie Dictionary (Pan Macmillan, 7^th ed, 2017) vol 2, 1096.
14. It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions (see Gallagher v Cendak [1988] VicRp 70; [1988] VR 731 at 738–739 (Vincent J) and JD Heydon, Cross on Evidence (LexisNexis Butterworths, 11^th ed, 2017) at [7105]). In Part 3-1 of the FWA, it is also heightened by the provisions of s 360. That section, when read with s 361(1)(a), requires a person who is alleged to have taken a contravening action to establish that the particular reason for which it is alleged that person took that action is not included among any of the reasons for which he or she took that action. It is important to note that, in contrast to s 361, s 360 only applies to a “particular reason” and it does not extend to a “particular intent”, both of which are covered by s 361. Section 360 therefore only applies to the “particular reason” component of s 361.
15. The second pre-condition which must exist for the presumption in s 361(1) to operate is of equal importance in this matter. It is the requirement in s 361(1)(b) that “taking that action for that reason or with that intent would constitute a contravention of this Part”. This precondition therefore requires more than an allegation with respect to an action, reason or intent. Additionally, it requires that taking the alleged action, for the alleged reason or with the alleged intent (or both), “would constitute a contravention of that Part”.
16. The Full Court alluded generally to this aspect of s 361 in Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62 albeit without mentioning the effect of s 361(1)(b). An issue under consideration in that proceeding concerned a contravention of s 340(1)(a) of the FWA. With respect to the question whether s 361 reversed the onus or burden of proof for such a contravention “upon nothing more than the making of an allegation”, Jessup J (with whom Allsop CJ and White J agreed) cited a long list of first instance judgments which supported the conclusion that “the party making an allegation that adverse action was taken ‘because’ of a particular circumstance needs to establish the existence of the circumstance as an objective fact”: at 75 [119].
17. Of more direct relevance to the requirements of s 361(1)(b), an earlier Full Court said of a predecessor provision to s 361 (s 298V of the Workplace Relations Act 1996 (Cth)) that it did not “relieve the applicant ... from proving on the balance of probabilities each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise”: see Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at 501; [1999] FCA 1108 at [109] (Wilcox and Cooper JJ).
18. On this point, it is also worth mentioning the more recent Full Court decision in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273; [2015] FCAFC 157 which the primary judge cited in his reasons at [23] (see below at [98]). In that matter, Jessup J (with whom Rangiah J agreed) observed that the question whether the presumption in s 361 had been displaced fell to be determined at the end of the trial and its answer would depend on “the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision-maker acting on behalf of the employer” (see at [27]–[28]).
19. Having regard to these observations and, in particular, to the provisions of s 361(1)(b), we consider that an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Part 3-1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent. As French J said in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173; [1991] FCA 557 at 6, “[a] material fact is one which is necessary to formulate a complete cause of action. ... Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet.”

THE “REASONS” AND “INTENTS” IN SECTIONS 340, 343 AND 355

20. In this matter, the reasons and intents to which the Commissioner sought to apply the provisions of ss 361 and 360 were contained in ss 340, 343 and 355 of the FWA. Section 340 relevantly provides:

340 Protection
(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

...

21. Section 342(1) sets out the circumstances in which a person takes “adverse action”. Relevantly, item 7(c) provides that adverse action is taken by an industrial association, or an officer or member of an industrial association, against an independent contractor if the action taken “has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services.” Section 342(2) provides that adverse action includes threatening to take such action or organising such action.
22. The term “workplace right” is defined in s 341. Relevantly, s 341(1)(b) provides that a person has a workplace right if the person “is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument”. Such processes or proceedings are relevantly defined in s 341(2)(e) to include “making, varying or terminating an enterprise agreement”.
23. Sections 343 and 355 provide:

343 Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.

...
355 Coercion—allocation of duties etc. to particular person
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) employ, or not employ, a particular person; or
(b) engage, or not engage, a particular independent contractor; or
(c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or
(d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.
(Emphasis added; notes omitted.)

24. For present purposes and broadly stated, s 340 proscribes adverse action (defined in s 342) taken against a person because that person has a workplace right, has (or has not) exercised a workplace right, or proposes to (or not to) exercise a workplace right. The meaning of the expression “workplace right” is defined in s 341. Similarly, s 343 proscribes any actions that are organised or taken, or so threatened, against a person with the intent to coerce a person, or another person, to exercise, or not exercise, or to propose to exercise et cetera a workplace right. Finally, s 355 proscribes the same actions and threats as s 343, but it applies to one of the purposes stated in paragraphs (a) to (d) rather than “to exercise” et cetera a workplace right. Because these three provisions are in Part 3-1 of the FWA, ss 361 and 360 apply to the particular reason or purpose (s 360) for which the action is taken or threatened to be taken under ss 340, 343 and 355 and to the particular intent (s 361) with which the coercive action is taken under ss 343 and 355. Justice Bromberg correctly highlighted this composite effect of the operation of s 361 with respect the existence of both the intent and reason or purpose components of s 343 in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446; (2013) 232 IR 290 at 343; [2013] FCA 446 at [230]).
25. It is well-established that the expression “intent to coerce” in ss 343 and 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; (2016) 245 FCR 39 at 84; [2016] FCAFC 72 at [174] (Buchanan J, with whom Siopis J agreed at [1]). We interpose that this conclusion and the line of authorities relied upon to reach it do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see Esso Australia Pty Ltd v Australian Workers’ Union  [2017] HCA 54 ; (2017) 350 ALR 404 at 425;  [2017] HCA 54  at  [61]  (Kiefel CJ, Keane, Nettle and Edelman JJ).
26. Furthermore, and most importantly for present purposes, the Full Court also held in Esso that the intent aspect of the expression “intent to coerce” applies to the negation of choice element. This contrasts with the other element, the use of unlawful, illegitimate or unconscionable conduct, which is to be assessed objectively (see Esso at 86-87 [194]). It follows that the relevant particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate choice. It follows further that, for the presumption in s 361 to operate with respect to a contravention of those sections, the particular intent that must be alleged in the application is an intent to negate choice. Conversely, alleging that the particular intent was an “intent to coerce” creates ambiguity because that expression does not refer to an intent per se, but rather, as discussed above, refers to the two elements of coercion, only one of which relates to the alleged contravener’s intent.

THE PLEADINGS AT TRIAL

The allegations made and pleaded by the Commissioner

27. In this proceeding, the words in s 361, “an application in relation to a contravention of this Part”, apply to the originating application the Commissioner filed with this Court on 26 June 2015, together with the statement of claim which accompanied it. Accordingly, the persons to whom the provisions of s 361 potentially applied were the eight individual respondents to the Commissioner’s application. The CFMEU, itself, is not included here because s 361 was not relied on in the Commissioner’s pleaded case against it. It is therefore necessary to examine those two documents to ascertain whether the necessary allegations were made and whether sufficient information was provided to meet the two preconditions in s 361(1) discussed above. Specifically, it is necessary to ascertain what particular reasons and what particular intents were alleged with respect to the four respondents who are respondents to this appeal and what material facts were pleaded with respect to their alleged contraventions of ss 340, 343 and 355 of the FWA.
28. In his originating application, the Commissioner sought, by way of relief, various declarations and orders for pecuniary penalties against each of the eight individual respondents. Using Mr Hall as an example, the declarations sought were as follows:

(a) Between 11–13 June 2014, Hall contravened s. 340(l)(a) of the Fair Work Act 2009 (Cth) (the FW Act) in that Hall, as an officer of the Construction Forestry Mining and Energy Union (the CFMEU) organised and engaged in:

(i) adverse action against Built Pty Ltd (Built), being industrial action against Built in the form of a blockade to Built’s worksite at 11 Rosevear Place Dickson, ACT that prejudiced Built being able to undertake contracted construction works at that site; and
(ii) that adverse action was taken because Built:

1. had not negotiated or entered into an Enterprise Agreement with the ACT Branch of the CFMEU; and/or
2. proposed not to enter into such an Enterprise Agreement; where

(iii) Built’s participation in such an Enterprise Agreement was a workplace right held by Built within the meaning of ss.34l(l)(b) and 341(2)(e) of the FW Act.

(b) Between 11–13 June 2014, Hall contravened s. 343(1) of the FW Act in that Hall, as an officer of the CFMEU, organised and engaged in:

(i) action against Built, being a blockade to Built’s worksite at 11 Rosevear Place Dickson, ACT; with
(ii) the intent to coerce Built to exercise a workplace right to make an Enterprise Agreement with the CFMEU.

(c) Between 11–13 June 2014, Hall contravened s. 355 of the FW Act in that Hall, as an officer of the CFMEU, organised and engaged in:

(i) action against Built, being a blockade to Built’s worksite at 11 Rosevear Place Dickson, ACT; with
(ii) an intent to coerce Built to employ a particular person and/or to allocate particular duties or responsibilities to a particular person.

29. The allegations, or grounds, relied upon to obtain this relief were, as is already noted above, set out in the statement of claim which accompanied the originating application. However, since the original statement of claim was subsequently amended, it is that amended version of the statement of claim (“the ASOC”) which needs to be examined. It is apt to begin that exercise by elaborating on the meaning of certain terms that are used in the originating application above and throughout the ASOC. The workplace right at the centre of the Commissioner’s case concerned an enterprise agreement the CFMEU wished to enter into with Built. That enterprise agreement was described in the ASOC as “the proposed enterprise agreement”, as follows (ASOC at [24]–[27]):
    24. Immediately prior to 11 June 2014, Built and the CFMEU had been bargaining for an enterprise agreement (the Proposed Enterprise Agreement).

Particulars

The negotiations had been occurring for approximately 12 months between Mr Adam Moore (Moore) (General Manager ACT) for Built, on the one hand, and Hall, O’Mara and Hamilton for the CFMEU, on the other.

25. The Proposed Enterprise Agreement:

(a) was described by the parties as a “greenfields agreement” within the meaning of ss.172(2)(b) and 172(4) of the FW Act;
(b) would have covered national system employees engaged by Built on the KHSD Project, and other building projects in the Australian Capital Territory (ACT);
(c) would have covered the CFMEU, by reason that the CFMEU:

(i) is an industrial association; and
(ii) is entitled to represent the interests of Built employees who would have been covered by the Proposed Enterprise Agreement, in relation to work performed under the Proposed Enterprise Agreement.

26. On 5 June 2014, Built notified the CFMEU of concerns held by Built about whether the Proposed Enterprise Agreement was compliant with the advance release of the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014.

Particulars

The concerns were raised in an email sent at 5.44pm from Moore to Hall, O’Mara and Hamilton.

27. Built’s role in negotiating with the CFMEU in relation to the Proposed Enterprise Agreement and/or its decision whether to sign, enter into or otherwise accept the Proposed Enterprise Agreement comprised a workplace right held by Built within the meaning of ss.341(1)(b) and 341(2)(e) of the FW Act.
30. The series of events that occurred during the period from 11 to 13 June 2014 which was the central focus of the Commissioner’s case was described in the ASOC as “the Blockade”. That expression was described in the ASOC in the following terms (ASOC at [60]):

By reason of the matters pleaded in paragraphs 28, 42 and 49, each of the 11 June Blockade, 12 June Blockade and 13 June Blockade were organised as, and intended to operate with the effect of, a continuous blockade of the KHSD Project (the Blockade).

31. It can be seen from this pleading that the expression “the Blockade” actually encapsulated three separate blockades that were said to have occurred on each of 11, 12 and 13 June 2014. The events constituting each of those blockades were described in the ASOC as follows:

(a) The blockade on 11 June 2014 (ASOC at [28]):

28. On or about 11 June 2014, Hall, O’Mara, Smith and Miller caused a blockade (the 11 June 2014 Blockade) to be organised that, as each of them knew and intended:

(a) would be conducted at the KHSD Project, at the Hawdon Place Gate;
(b) would commence at about 6.15 am on 11 June 2014, and would continue thereafter until it concluded;
(c) would be attended by a number of CFMEU officials and employees, including Hall, O’Mara, Miller, Kivalu, Smith, Hamilton, Lomax and Vitler; and
(d) would close the KHSD Project, and thereby prevent any building works from being conducted.

Particulars

(i) At or about 6.15am, each of Hall, O’Mara, Miller, Kivalu, Smith, Lomax and Vitler, along with other persons wearing clothing emblazoned with the “CFMEU” insignia, were physically blocking access to the KHSD Project through the Hawdon Place Gate.
(ii) In addition, the persons present had caused four (4) motor vehicles to be placed across the Hawdon Place Gate, so as to prevent access to the KHSD Project.
(iii) At about 6.15am, Miller said to Mr Norman Ault (Ault) (Site Foreman–Built) that the KHSD Project was closed and that no work would be performed on 11 June 2014.

(b) The blockade on 12 June 2014 (ASOC at [42]–[44]):

42. On or about 12 June 2014, Hall, O’Mara, Smith and Miller caused a blockade (the 12 June 2014 Blockade) to be organised that, as each of them knew and intended:

(a) would be conducted at the KHSD Project, at the Rosevear Place Gate;
(b) would commence at about 6.30 am on 12 June 2014, and would continue thereafter until it concluded;
(c) was intended to be a continuation of the 11 June 2014 Blockade;
(d) would be attended by a number of CFMEU officials and employees, including Miller, Kivalu, Smith, Lomax and Vitler; and
(e) would close the KHSD Project, and thereby prevent any building works from being conducted.

Particulars

(i) At or about 6.30am, each of Miller, Kivalu, Smith, Lomax and Vitler, along with other persons wearing clothing emblazoned with the “CFMEU” insignia, were physically blocking access to the KHSD Project through the Rosevear Place Gate.
(ii) In addition, the persons present had caused two (2) motor vehicles to be placed across the Rosevear Place Gate, so as to prevent access to the KHSD Project.
(iii) At about 6.35am, Ault approached the Rosevear Place Gate and asked the persons present whether they intended to block the site that day. Miller said words to the effect of: “Yes! And why is Built using this access to site?” Ault replied that the CFMEU had locked access to the Hawdon Place Gate.
(iv) Between 6.30am and 7.00am, Built sub-contractors began to arrive at the KHSD Project, and were told by various CFMEU officials that there “is no work today” and that “the site is closed”.
(v) Throughout the day, various CFMEU officials made statements to the effect that “the site is closed until further notice”

43. At around 7.20am, Miller and Kivalu were informed that they were on private land and asked to leave.

Particulars

(i) Ms Kate Cairns, Director of the Pinocchio Childcare Centre, approached Miller and Kivalu and asked them to move their motor vehicles, as they were on private land.
(ii) Miller responded that “we are not moving our cars”.
(iii) Ms Cairns again asked Miller and Kivalu to move the motor vehicles, as children would be arriving soon at the childcare centre.
(iv) Kivalu responded: “Yes, we will put the cars back in designated car parks”.
(v) Ms Cairns replied: “Move your cars off the premises”.

44. Neither Miller, Kivalu, Smith, Lomax or Vitler, or any of them, left the premises or moved the motor vehicles from in front of the Rosevear Place Gates, or off the premises, or at all.

(c) The blockade on 13 June 2014 (ASOC at [49], [54], [56] and [58]):

49. On or about 13 June 2014, Hall, O’Mara, Smith and Miller caused a blockade (the 13 June 2014 Blockade) to be organised that, as each of them knew and intended:

(a) would be conducted at the KHSD Project, at the Rosevear Place Gate;
(b) would commence at about 5.45am on 13 June 2014, and would continue thereafter until it concluded;
(c) was intended to be a continuation of the 11 June 2014 Blockade and 12 June 2014 Blockade;
(d) would be attended by a number of CFMEU officials and employees, including Miller, Kivalu, Smith, Lomax ,Vitler and Hamilton; and
(e) would close the KHSD Project, and thereby prevent any building works from being conducted.

Particulars

(i) At or about 5.45am, each of Miller, Kivalu, Smith, Lomax and Vitler, along with other persons wearing clothing emblazoned with the “CFMEU” insignia, were physically blocking access to the KHSD Project through the Rosevear Place Gate.
(ii) Hamilton arrived at the Rosevear Place Gate sometime prior to 7.00am.
(iii) At about 7.00am, Ault, Tonkovic, Paul Stafford (FWBC Inspector), Clint Walker (FWBC Inspector) and John Nikolic (Master Builders Association of the ACT) approached the Rosevear Place Gate and sought entry to the KHSD Project, along with sub-contractors who were present for work.
(iv) In response:

1. Hamilton made a statement to the effect of: “the site is closed” (the Hamilton Representation); and
2. Kivalu made a statement to sub-contractors to the effect of: “everyone should go home, you will be paid for today, we will make sure you get paid” (the Second Kivalu Representation).

(v) Stafford, Walker, Nikolic, Ault and Tonkovic were permitted to enter the KHSD Project.
(vi) The CFMEU officials who were present, including Miller, Kivalu, Smith, Lomax and Vitler and Hamilton physically blocked the sub-contractors from accessing the KHSD Project by standing shoulder to shoulder at the Rosevear Place Gate.

...

54. At around 8.00am, Tonkovic opened the Rosevear Place Gate, in response to which Kivalu:

(a) stated to Tonkovic that the gates were to stay shut; and
(b) closed the Rosevear Place Gate.

Particulars

Kivalu made the following statements to Tonkovic, in the presence of Nikolic and Walker:
(i) “You and me are going to have a problem here”
(ii) “The gates stay shut”
and then proceeded to pull the gate shut.

...

56. At around 8.50am, Hall addressed those people present at the Rosevear Place Gates and made the following statements:

(a) Built didn’t want a good relationship with the CFMEU.
(b) Built needed a good relationship with the CFMEU.
(c) It would have been fine if Built had a good relationship with the CFMEU.
(d) He could take out full page ads in the Canberra Times.

Particulars

The statements were made at the Rosevear Place Gate in the presence of Nikolic, Stafford, Miller, Smith, Lomax, Hamilton and Vitler.

...
58. The 13 June Blockade ceased at around 11.00 am.

32. Having elaborated on those terms, we turn to identify the allegations made in the originating application and in the ASOC, concerning the particular reasons or particular intents in ss 340, 343 and 355, that purported to plead the material facts of the contraventions of those sections such that the two pre-conditions for the operation of the presumption in s 361 were met. Again, using Mr Hall as an example, the Commissioner alleged that he had contravened ss 340, 343 and 355 of the FWA. The allegations in the Commissioner’s originating application are set out above at [28]. The Commissioner pleaded the details of those allegations in the ASOC in similar, although not identical, terms, as follows:

(a) Hall’s contravention of s 340 of the FWA:

61. By reason of the Blockade, Hall took adverse action against Built within the meaning of item 7, subparagraph (c) of s. 342(1) of the FW Act.
62. Hall took the adverse action because Built:

(a) had not signed the Proposed Enterprise Agreement, within the meaning of s. 340(1)(a)(ii) of the FW Act; and/or
(b) proposed not to sign the Proposed Enterprise Agreement, within the meaning of s. 340(1)(a)(iii) of the FW Act.

(b) Hall’s contravention of s 343 of the FWA:

67. Further, and in the alternative to paragraphs 61 and 62, Hall:

(a) organised the Blockade, with the intent to coerce, or for the reason of coercing, Built to sign the Proposed Enterprise Agreement, within the meaning of s. 343 of the FW Act; and/or
(b) participated in the Blockade, with the intent to coerce, or for the reason of coercing, Built to sign the Proposed Enterprise Agreement, within the meaning of s. 343 of the FW Act.

Particulars

The Director relies, amongst other facts, on the following:
(i) the facts pleaded in paragraphs 24–26, with respect to Hall’s knowledge of the Proposed Enterprise Agreement;
(ii) the facts pleaded in paragraphs 28, 42, 45 and 49, with respect to Hall’s organisation of the Blockade; and
(iii) the facts pleaded in paragraphs 28, 29, 32, 33, 35, 36 42, 45, 49 and 56, with respect to Hall’s conduct in respect of the Blockade.

(c) Hall’s contravention of s 355 of the FWA:

70. Further, by reason of the matters pleaded in paragraphs 29, 32, 33, 34, 36, 42, 49 and 56, the Blockade was organised by Hall, and Hall participated in the Blockade, with the intent to coerce, or for the reason of coercing, Built to:

(a) employ a particular person, within the meaning of s. 355 of the FW Act; and/or
(b) allocate particular duties or responsibilities to a particular person, within the meaning of s. 355 of the FW Act.

33. Similar allegations were made against each of the other seven individual respondents. With respect to the respondents to this appeal, the allegations in the ASOC against Messrs Miller and Smith were that they had contravened s 340 in almost identical terms to Mr Hall (Mr Miller at [63]–[64] and Mr Smith at [65]–[66]) and s 343 in broadly similar terms to Mr Hall (Mr Miller at [68] and Mr Smith at [69]). The allegation against Mr O’Mara (at [71]) was that he had contravened s 355 in almost identical terms to Mr Hall.

The respondents’ defences

34. Before analysing these allegations more closely, it is convenient to summarise how the respondents pleaded to them in their defences. Initially, seven of the eight individual respondents claimed privilege against penalty and did not advance any reason for their conduct in the defences they filed with the Court (Mr Kivalu filed a defence on 25 May 2016 admitting to the allegations made against him). However, shortly before the trial, those seven respondents obtained leave to amend those defences to advance a reason for their actions at each of the three blockades.
35. In Mr Hall’s amended defence:

(a) he admitted the allegations in [24], [25] and [26] of the ASOC (concerning the proposed enterprise agreement) and denied those in [27] (concerning whether Built’s role in negotiating that agreement comprised a workplace right) (set out at [29] above);
(b) however, in addition to admitting the allegations in [24], he said further that:

(a) the CFMEU had been negotiating with Built since around August 2013;
(b) the negotiation of the enterprise agreement was a low priority for the CFMEU because Built had not employed any employees to whom the agreement would apply to if it was finalised, and Built did not have much construction work in the ACT; and
(c) he had minimal direct involvement in the negotiations.

(c) he denied that he took the alleged adverse action set out at [61] of the ASOC for either of the two reasons alleged in the ASOC at [62] (set out at [32(a)] above); and he denied both of the coercion allegations in the ASOC at [67] and [70] (set out at [32(b)] and [32(c)] above, respectively); and
(d) he said further in response to each of the allegations in those three paragraphs that:

(a) any action taken by him in relation to Built’s access through the Hawdon Place Gate on 11 June 2014 was taken only because Hadwon had revoked Built’s permission to traverse the Hadwon land, as pleaded in paragraph 20A above; and
(b) any action taken by [him] in relation to Built’s passage through the Rosevear Place Gate on 12 and 13 June 2014 was taken only because of concerns about the dangers of using the Rosevear Place Gate to access the KHSD project.

36. Further, in [20A] of his defence, Mr Hall pleaded that:

on or about 10 June 2014 Hadwon revoked Built’s permission to traverse the Hadwon Land.
Particulars
[He] and [Mr O’Mara], acting in their capacities as directors of Hadwon, together with Jason Jennings, another director of Hadwon, decided on or about 10 June 2014 to revoke the permission of Built to traverse the Hadwon land after being informed by Stephen Brennan, the Secretary of Hadwon, that issues about asbestos on the Hadwon land had again arisen.

37. Depending on the particular contravening conduct in which they were alleged to have engaged, similar admissions, denials and claims were made in each of the amended defences of the other three individual respondents to this appeal: Messrs O’Mara, Miller and Smith. In particular, Mr Miller and Mr Smith pleaded that any action taken by them was only taken because they had been asked to attend the gates due to safety concerns. Similarly, Mr O’Mara pleaded that he had revoked Built’s permission to traverse the Hadwon land after being informed about the asbestos issues. The only significant differences between those defences, for present purposes, were that:

(a) Mr Miller said he did not know, and therefore did not admit, the allegations in [24], [25] and [26] of the ASOC (concerning the proposed enterprise agreement) and did not say anything further with respect to the allegations in [24];
(b) in addition to admitting the allegations in [24], Mr Smith said further that:

Save to say that he assisted the union with the negotiations for an enterprise agreement with Built during 2013 and that he had no knowledge of the progress of the negotiations after the start of 2014 onwards, he does not know and therefore cannot admit the allegations in paragraph 24.

THE DEFICIENCIES IN THE COMMISSIONER’S PLEADINGS

The deficiencies in the particular “reasons” and “intents” alleged

38. We return to the particular reasons, and the particular intents, that the Commissioner alleged against the respondents to this appeal and which purportedly met the first pre-condition identified above, that in s 361(1)(a). Again, using Mr Hall as the example, and dealing first with the contravention of s 340 of the FWA, the Commissioner alleged that, by reason of the Blockade, Mr Hall took adverse action against Built “because” it had not signed and/or proposed not to sign the proposed enterprise agreement (see ASOC [62(a)] and [62(b)] set out at [32(a)] above). The allegation with respect to this particular reason presents no difficulties. It is precise and distinct. In our view, it therefore complied with the first pre-condition in s 361(1) and, to that extent, allowed for the presumption in s 361 to operate with respect to the alleged contravention of s 340. We will examine whether the Commissioner complied with the second pre-condition with respect to s 340 separately below.
39. The same conclusion cannot, however, be drawn with respect to the allegations concerning the contraventions of ss 343 and 355 of the FWA. Because they are similar in their terms, it is convenient to deal with those two contraventions together. With respect to the contravention of s 343 of the FWA, the Commissioner alleged that Mr Hall organised and/or participated in the Blockade with “the intent to coerce, or for the reason of coercing” Built to sign the proposed enterprise agreement (see ASOC [67(a)] and [67(b)] set out at [32(b)] above). With respect to the contravention of s 355 of the FWA, with the omission of the unhappy expression “and/or” between the words “organised” and “participated”, the Commissioner alleged that Mr Hall acted with the “intent to coerce, or for the reason of coercing” Built to employ a particular person, or to allocate particular duties or responsibilities to a particular person (see ASOC [70(a)] and [70(b)] set out at [32(c)] above).
40. These two sets of allegations do not, in our view, precisely and distinctly allege any particular reason or any particular intent. As has already been mentioned above, a contravention of ss 343 and 355 requires the respondent to have both a “particular intent” (an intent to negate choice) and a “particular reason” or purpose (one or more of those stated in ss 343(1)(a) or (b), or in ss 355(a) to (d), respectively). Despite this, in both of these sets of allegations, the intent and the reasons are pleaded as alternatives: “with the intent to coerce or for the reason of coercing”. Thus, depending upon which alternative is engaged, either the respondent’s particular reason, or his particular intent, is not alleged. Furthermore, either way, one of the three elements of a contravention of both sections is missing and it is not possible to determine which it is (the third element being that the relevant action was organised, taken or threatened). In the context of ss 361 and 360, this deficiency is compounded by the matter mentioned above at [14], that s 360 only applies to the “particular reason” component of s 361. Hence, s 360 would not apply, at all, if it were only the “particular intent” alternative that was engaged in both of these sets of allegations.
41. Finally, as is mentioned above at [26], the relevant “particular intent” in a contravention of ss 343 and 355 is an intent to negate choice. That particular intent has not been alleged in either of the two sets of allegations set out above. Instead, the expression “intent to coerce” has been used. As has also been mentioned above at [25], in this context, that expression conveys the two elements of coercion under ss 343 and 355 of the FWA. The pleaded allegations do not, therefore, convey the relevant particular intent required for a contravention of those provisions, namely an intent to negate choice. For these reasons, we do not consider the Commissioner complied with the first pre-condition mentioned above at [13]. That being so, we do not consider that the presumption in s 361 operated with respect to the alleged contraventions of ss 343 and 355.

The failure to plead the material facts of the contraventions of ss 343 and 355

42. The above conclusion is sufficient in itself to dispose of the aspects of this appeal which relate to the alleged incorrect application of s 361 insofar as it concerns ss 343 and 355 (namely aspects of grounds 1 and 3). However, for completeness, we will also address the second precondition for the application of s 361 mentioned above at [15]. To reiterate, that pre-condition required the Commissioner to plead the material facts to show that the alleged action, in combination with the particular reason or intent (or both) would constitute a contravention of ss 340, 343 and 355 of the FWA.
43. Turning, first, to s 340, we consider that the Commissioner has met that second pre-condition. The Commissioner did that by pleading the following material facts relating to that alleged contravention in the ASOC. Again, using Mr Hall as the exemplar, the Commissioner did that by pleading:

(a) at [61], that he took a form of adverse action that engaged s 340(1) and that was within the meaning of item 7(c) of s 342(1), and thereby implicitly picked up an allegation that Built was thereby prejudiced;
(b) at [61], that he took that adverse action against Built;
(c) at [27], that Built held a “workplace right” within the meaning of ss 341(1)(b) and 341(2)(e); and
(d) at [62], that he took that adverse action against Built for one or both of the reasons identified in ss 340(1)(a)(ii) and (iii).

There was no express pleading that “by reason of the Blockade” Mr Hall caused any prejudice to Built.

44. Insofar as s 340 is concerned, therefore, having met the second pre-condition for the operation of the presumption in s 361, the allegation with respect to the matter in [43(d)] above would stand as sufficient proof of that element if, at the end of the trial, based upon his assessment of all the evidence, the primary judge was not satisfied that Mr Hall had proved that he did not take the adverse action for a reason which included either of the two alleged reasons. On this aspect, it should be noted that the only reasons for which Mr Hall and the other relevant respondents claimed they took the action were those pleaded in their defences. Mr Hall’s claimed safety reasons are set out at [35(d)] and [36] above. Similar claims appeared in the defences of Mr Miller and Mr Smith (see at [37]).
45. Nonetheless, even if Mr Hall failed to prove that he not acted for a proscribed reason, and therefore the Commissioner had established element (d) above, if the Commissioner separately failed to prove one or more of the other three elements of the alleged contravention, Mr Hall could not be found to have contravened s 340. In this respect, it is also important to note that, by their defences, Mr Hall and the other three respondents put in issue the element described in (c) by their denial of [27] of the ASOC (see at [35(a)] and [37] above). They also put in issue the element in (a) by denying [61] of the ASOC (see at [35(c)] and [37] above). It should also be noted that proof of the element in (a) is also addressed by item 2 of the respondents’ amended notice of contention (see at [10] above).
46. Turning then to the alleged contraventions of s 343 and 355 of the FWA, as with the first precondition, we do not consider that the second pre-condition has been met insofar as those alleged contraventions are concerned. That is so because no attempt has been made in the Commissioner’s ASOC (see at [32(b)] and [32(c)] above) to elucidate the material facts necessary to establish either the intent element or the conduct element of coercion, as discussed above (see at [25]–[26]). Specifically, no facts are pleaded which identify how the respondents’ actions in organising the Blockade involved an intention to negate Built’s choice concerning its entry into the proposed enterprise agreement. Nor are any facts pleaded which identify how those actions gave rise to the unlawfulness, illegitimacy or unconscionability involved in the conduct element of coercion. It necessarily follows that the Commissioner also failed to meet the second precondition for the operation of the presumption in s 361 with respect to the alleged contraventions of ss 343 and 355 of the FWA.
47. These conclusions also affect, indirectly, each of the other six grounds of appeal which do not expressly refer to s 361. That is so because all of those grounds of appeal are directed to the primary judge’s assessment of the evidence of the various witnesses called by the Commissioner and the evidence of the respondents, particularly that of Mr Hall, insofar as that evidence was directed to the reason, or reasons, why he and the other respondents took the alleged action against Built. That reason is pivotal to the operation of the presumption in s 361 and, in turn, the operation of s 360.

The Commissioner’s attempts to overcome the deficiencies in the ASOC

48. At the hearing of this appeal, the Commissioner’s counsel acknowledged that many of these deficiencies were present in the ASOC. To attempt to overcome them, she sought to rely on various statements that were made in opening and closing submissions before the primary judge which, it was contended, clarified how the Commissioner’s coercion case under ss 343 and 355 was put. She claimed that none of the respondents had raised any concerns about the coercion case as it was pleaded in the ASOC. By not doing so, she contended, they had acquiesced in the trial being conducted on a different basis to that stated in the pleadings. We do not consider that these contentions can be accepted.
49. One of the main purposes of pleadings is to define the issues in dispute with sufficient clarity to enable the opposite party to understand the case he or she has to meet and to provide him or her with an adequate opportunity to prepare to meet that case: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). A concomitant of this principle is that a party is not entitled to depart from his or her pleaded case except if the parties have both deliberately chosen to conduct the dispute on a different basis. That principle was expressed in Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286–287 in the joint judgment of Mason CJ and Gaudron J as follows:

The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) [(1916) [1916] HCA 81; 22 CLR 490], per Isaacs and Rich JJ at 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Brown v Dunn [(1893) 6 R 76]; Mount Oxide Mines [(1916) [1916] HCA 81; 22 CLR 490 at 517-518].
(Emphasis added.)

50. In our view, these observations apply with even more force in a proceeding such as this where declarations of contravention of the FWA were sought against the respondents and civil penalties were sought to be imposed on them. Faced with those serious consequences, the respondents were entitled to be told clearly and precisely in the Commissioner’s ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone. Plainly, this latter exception did not permit the Commissioner to make a significant addition to, or departure from, the pleaded case, in counsel’s opening or closing submissions and then seek to justify that course by pointing to the respondents’ failure to object as evidence of their acquiescence in that course. If that were the test, this departure from the basic requirements of procedural fairness would not occur by the deliberate choice of the party entitled to fair notice but rather at the self-serving behest of his or her opponent. If such an approach were permitted, the requirement to give fair notice would be made redundant, trial by ambush would become a legitimate tactic, and the issues in dispute at trial would become a movable feast. As well, the ability of a trial judge to manage the trial to ensure it fairly addressed the issues in dispute would be significantly eroded, if not entirely destroyed. So, too, would be the capacity of the trial judge to identify the issues he or she needed to decide.
51. There is insufficient evidence that any such deliberate choice was made by the respondents in this matter. We do not, therefore, accept that the Commissioner was entitled to escape the deficiencies in the ASOC by adopting the approach outlined above.

Conclusions on the effect of the deficiencies in the Commissioner’s ASOC

52. That brings us back to the Commissioner’s grounds of appeal. As we have explained above, all of those grounds directly or indirectly concern the operation of the presumption in s 361 of the FWA. For the reasons expressed above, the Commissioner did not comply with either of the two pre-conditions for that presumption to operate in this proceeding with respect to the alleged contraventions of ss 343 and 355. Since the presumption in s 361 did not ever operate in this proceeding in respect of these two alleged contraventions, it is unnecessary to consider whether the primary judge made any errors in his treatment of that presumption with respect to those alleged contraventions or in his assessment of the evidence going to the intention and reason (or reasons) which were pivotal to those contraventions.

THE ALLEGED CONTRAVENTIONS OF SECTION 340

53. The Commissioner’s case under s 340 of the FWA does not suffer from the same deficiencies as those we have found to be fatal to his claims in relation to ss 343 and 355.
54. It is, therefore, necessary to deal with the Commissioner’s grounds of appeal insofar as they relate to the rejection, by the primary judge, of his allegations that Messrs Hall, Miller and Smith and the CFMEU had contravened s 340.

The Commissioner’s case at trial

55. The Commissioner’s originating application sought declarations that these respondents had contravened s 340(1)(a) of the FWA. The declarations sought in relation to Mr Hall are set out above at [28]. Similar declarations were sought in respect of the other relevant respondents. In substance they alleged that, on 11, 12 and 13 June 2014 these respondents had engaged in adverse action against Built by blocking access to the construction site. The Blockade was alleged to have been undertaken because Built had not entered and (or alternatively) proposed not to enter into an enterprise agreement with the CFMEU. The relevant “workplace right” was the right to enter into such an agreement.
56. As pleaded in the Commissioner’s ASOC, the alleged “Blockade” was, in fact, three separate blockades on each of 11, 12 and 13 June 2014: see above at [31].
57. In the ASOC the Commissioner pleaded that Messrs, Hall, Miller and Smith (and the CFMEU) had contravened s 340 of the FWA by taking adverse action (the Blockade) against Built and that the action was taken because Built had not signed the proposed agreement and (or alternatively) proposed not to do so: see above at [32(a)].
58. In their amended defences these respondents denied that the alleged adverse action had been taken for either of the alleged prohibited reasons. They further pleaded that the blockade on 11 June 2014 occurred only because Hadwon Pty Ltd (“Hadwon”) had revoked Built’s permission to traverse its land in order to access the site and that the permission had been withdrawn because Hadwon was concerned about asbestos being present on its land: see above at [35(d)], [36] and [37]. They further pleaded that the blockades on 12 and 13 June 2014 occurred because of dangers associated with vehicle access along the roadway between the Rosevear Place Gate and the construction site.
59. The Commissioner supported his claims by calling evidence from Mr Kivalu, a former official of the CFMEU, who was also the fifth respondent, and various Built employees involved in construction work on the site.
60. Particular reliance was placed on Mr Kivalu’s evidence in respect of the events which had occurred on each of the three days.
61. Messrs Hall, Miller and Smith each gave evidence on affidavit and at trial.
62. Mr Kivalu’s evidence supported the Commissioner’s claims in respect of the contraventions of s 340. The primary judge, however, found Mr Kivalu to be an unsatisfactory witness and decided that no reliance could be placed upon his evidence: at [31] and [38]–[48].
63. No challenge was made, on this appeal, by the Commissioner about the rejection of Mr Kivalu’s evidence or the credibility findings that underpinned that rejection.
64. There was no dispute at trial that blockades had occurred on each of the three days. What was at issue was the reason or reasons each of those blockades had been imposed.
65. It was common ground that the first blockade commenced at about 7.00 am on 11 June 2014. Shortly afterwards a meeting had occurred at a nearby facility — the Praga Café. Those present included Mr Hall and another CFMEU official and two Built representatives, Mr Moore and Mr Tonkovic.
66. Messrs Moore and Tonkovic gave substantially similar evidence. Discussions at the meeting, they said, had centred on the blockading of the site and the reasons for it.
67. There was some measure of agreement between those present about what had been discussed but considerable controversy as to the sequence in which the proposed agreement and safety issues had been debated and what was said in relation to those topics.
68. Mr Moore’s evidence, supported by that of Mr Tonkovic, was that he had complained about what he had told Mr Hall was illegal industrial action constituted by the blockade. Mr Hall had responded by proposing various means of establishing an enterprise agreement applicable on the site. Mr Moore had rejected these suggestions.
69. Mr Hall acknowledged that Mr Moore had commenced the discussion by complaining that the blockade was illegal. Mr Hall said that he had replied by saying that the CFMEU had serious safety concerns about asbestos which needed to be dealt with. Mr Moore had defended his company’s safety record. Mr Moore had then said that he had wished to deal with the enterprise bargaining agreement (“the EBA”). Mr Hall had responded that the safety issues had to be dealt with first and that he was not at the meeting to talk about the EBA. Mr Moore persisted in raising the topic of the EBA and Mr Hall pressed on with talk about safety issues.

The primary judge’s findings

70. At [60]–[62] under the heading “The meeting at the Praga Café — a failure to discharge the onus of proof”, the primary judge summarised his findings about what had passed between those who had been present at the meeting at the Praga Café. In substance he accepted Mr Hall’s account in preference to that provided by the Commissioner’s witnesses.
71. Having summarised the competing evidence the primary judge said (at [60]) that:

The factual conclusion that is reached is that the [Commissioner] has failed to establish — according to the requisite standard set for in s 140(2) of the Evidence Act and Briginshaw — that the conversation at the Praga Café was substantially as advanced by Mr Moore, and as supported by Mr Tonkovic.

His Honour went on to say that “little ‘fell out’ ... in the cross examination which provided a reason for accepting one account rather than the other” (at [60]) and that the Commissioner’s submissions relating to this evidence “occasioned considerable reservation before the conclusion was reached that [he] had failed to discharge [his] onus of proof” (at [62]).

72. At [62] the primary judge said:

The conclusion that the [Commissioner] has failed to discharge his onus of proof does not necessarily also involve any further finding having to be made that Mr Hall’s account is to be accepted. But it is nevertheless further concluded that his account of the conversation should be accepted.

73. The next section of his Honour’s reasons was headed “The Blockade on 11, 12 & 13 June 2014”. He referred to the blockades on each of these days and continued:
    69. An even more important factual dispute between the parties focussed upon the reasons why the blockade was put into place on 11 June 2014 and why the further blockade of the Rosevear Place Gate was put in place on 12 and 13 June 2014.
    70. On Mr Hall’s account, the closure of the gates at Hawdon Place on 11 June 2014 was occasioned by safety concerns arising out of the prospect of asbestos being located on the land formerly occupied by the Canberra Tradies’ Club.
    71. By 12 June 2014 any concern on the part of the CFMEU as to asbestos being on the Hadwon Land, however, had been adequately addressed by closing access at the Hawdon Place Gate. By closing those gates, no vehicles or persons could move across the land potentially affected by asbestos.

(Emphasis added.)

74. He concluded this section of his reasons by saying:
    74. It was the case for the [Commissioner] that the CFMEU’s commitment to having an enterprise agreement signed and an “attendant labourer” on site persisted. The blockade on 12 and 13 June 2014, on the [Commissioner’s] case, was but a “continuation” of the 11 June 2014 blockade. Mr Hall’s reliance upon concerns as to asbestos or safety was characterised by the [Commissioner] as a “sham” or a “convenient excuse” cloaking the real reasons for the “Blockade”.
    75. It is further concluded that the Director has failed to discharge the onus of proof imposed by reference to the Briginshaw standard in respect to either:

• the CFMEU imposing the “Blockade” as a means of exerting pressure on Built to sign an enterprise agreement and/or to secure the employment of an “attendant labourer”; or
  the CFMEU’s reliance upon “safety issues” as a reason for the continuation of the “Blockade” as a “sham” concealing its true objective of exerting “pressure” on Built.

75. The primary judge next turned to the question whether the dispute relating to the EBA was linked to the blockades on each of the three days. This section of his reasons was headed “The reason for the ‘Blockade’ — the objective of securing an enterprise agreement”. Having summarised the evidence his Honour said (at [84]) that:

No satisfactory conclusion can be reached, founded upon the standard required by Briginshaw, that the negotiations between the CFMEU and Built for the execution of an enterprise agreement formed part of the reasons for the “Blockade” on 11, 12 and 13 June 2014. This part of the [Commissioner’s] case does not sit comfortably with the fact that:

• The negotiations had commenced in mid-2013 and were on-going;
  The construction of the Kim Harvey School of Dance started in February/March 2014 without any apparent earlier like industrial action; and
  There remains no enterprise agreement signed by Built with the CFMEU.

It may be interpolated at this point that the first and, at least implicitly, the last of these matters had been admitted and were not in dispute in the proceeding. They were pleaded by the Commissioner at paragraphs [24], [25] and [26] of his ASOC (see above at [29]) and were admitted by the relevant respondents (see at [35(a)] above).

76. The following section of his Honour’s reasons was headed “The CFMEU’s concerns as to asbestos and traffic — sham excuses for unlawful conduct?” Paragraphs [86]–[101] appeared under this heading.
77. In this section his Honour turned his attention to the Commissioner’s contention that the respondents’ professed safety reasons for closing the gates which provided access to the site were a sham. The respondents’ safety concern on 11 June 2014 related to the disturbance of asbestos. The safety concern which was said to have led to the closure of the Rosevear Place Gate on 12 and 13 June 2014 was concern about the safety of children and others occasioned by the movement of vehicle traffic between the gate and the site entrance. His Honour dealt with those professed safety concerns separately.
78. In dealing with the concern about asbestos on 11 June 2014 he accepted that Mr Hall had a genuine concern about the danger of asbestos on that day but still considered whether the genuine concern might nonetheless have provided a convenient excuse for exerting pressure on Built. His Honour concluded (at [92] and [93]) that:
    92. The genuineness of Mr Hall’s concern as to safety, however, remains a reason to question the case sought to be advanced by the [Commissioner]. It contributes to the conclusion that the [Commissioner] has not discharged the onus required by Briginshaw. [The Commissioner’s] submission, that there was no “credible” evidence upon which Mr Hall could base his concern, is rejected.
    93. Mr Hall’s expressed concerns as to safety occasioned by the need to resolve any dangers presented by asbestos are also accepted as the reason why the Hawdon Place gate was closed on 11 June 2014.
79. The primary judge then examined the safety concerns arising from the traffic passing through the Rosevear Place Gate and along the road to the site.
80. He referred to Mr Hall’s evidence and the terms of a prohibition notice which had been issued by a WorkSafe inspector on 13 June 2014 which recorded “serious concerns regarding workers and public safety due to the proposed movement of construction plant and equipment through the preschool car park and the current traffic management systems in place”.
81. He then concluded (at [97] and [98]) that:
    97. Mr Hall’s express concerns as to safety occasioned by the prospect of increased traffic (including possibly heavy vehicle traffic) seeking to gain access to the Project Site by means of the Rosevear Place Gate are accepted, and are accepted as the reason why the Rosevear Place Gate was closed on 12 June 2014.
    98. The Rosevear Place Gate remained closed on 12 and 13 June 2014. WorkSafe inspectors arrived on site on 13 June and issued Built with Prohibition Notices. After they were issued, the safety concerns arising from traffic were resolved and the blockade lifted.
82. His Honour went on to observe (at [101]) that:

An unfounded concern as to safety may well have more unequivocally supported the inference sought to be advanced by the [Commissioner]. On balance, however, the concern of the CFMEU was not unfounded and provides a further reason for concluding that the [Commissioner] has not discharged the onus of proof as required by Briginshaw. It is further separately concluded that the purpose sought to be achieved by the closure of the Rosevear Place Gate was founded upon concerns as to safety, as was the evidence of (inter alia) Mr Hall.

83. The Commissioner called further evidence that, on 11 June 2014, Mr Smith and Mr Miller had said that nobody was allowed to enter the site because Built did not have an EBA with the CFMEU and evidence that, on 13 June 2014, Mr Miller said that the Blockade could be sorted out if Built signed the EBA. This evidence was dealt with in paragraphs [102]–[134] under the heading “Other statements relied upon by the [Commissioner]”.
84. The primary judge described this evidence as being “truly worrying” (at [120]). He then said (at [121]–[123]) that:
    121. If the [Commissioner’s] account be accepted, they occasion some considerable reason to re-visit the earlier conclusions as to the [Commissioner] having failed to discharge the onus of proof according to the Briginshaw standard. If accepted, there is considerable merit in the proposition that Messrs Smith and/or Miller got their information as to the reasons for the action being taken from some source; the account not being simply something that each made up as “something to say”. If accepted, one or other of these two accounts of what was said may lend some colour and support to the other like evidence sought to be relied upon by the [Commissioner].
    122. The “flip side” of this same consideration is the fact that the [Commissioner] has failed to discharge the onus of proof in respect to other matters of evidence but, more importantly, Mr Hall’s evidence has been accepted as to the purposes he sought to achieve in taking the action that he did. But for the acceptance of Mr Hall’s evidence as to purpose, and had the conclusion simply been that the [Commissioner] had failed to discharge the onus of proof in respect to these other discrete matters such as the exchange at the Praga Café, the acceptance of the [Commissioner’s] evidence as to these two conversations may have provided greater reason to re-visit the earlier conclusions as to onus of proof. Even then, however, it is doubted whether any different factual finding would have been made.
    123. It is concluded that the [Commissioner] has failed to discharge the onus of proof in respect to the words sought to be attributed to Mr Smith on 11 June 2014. In so concluding primary reliance has been placed upon:

• the fact that Mr Horsham failed to give any evidence corroborative of the account given by Mr Ault.

Reliance has also been placed upon:

• the account given by Mr Smith; and
  the evidence of Messrs Miller, Lomax, Hamilton and Vitler.

The account given by Mr Smith, it has been concluded, should be accepted. And this is so notwithstanding, for example, Mr Smith’s apparent reluctance to accept what was an “inconsistency” between his not having any knowledge “about the EBA” and his statement that it had “dragged on for 12 months”. Evidence of some witnesses from time to time occasions concern by reason of reservations as to its reliability, its inconsistency with the evidence of other witnesses and even by reason of internal inconsistency. Such is inevitably part of the process of the evaluation of evidence and the making of findings of fact. In the present case, and subject to s 361 of the Fair Work Act, it is the [Commissioner] who bears the onus of proof in establishing that his account of the facts should be accepted. And in this respect he has not discharged that onus.

85. His Honour further held that the Commissioner had failed to discharge the onus of proof in respect to the allegation that Mr Miller had made the statement attributed to him on 13 June 2014. Specifically he held that the Commissioner had “failed to prove that Mr Miller said ‘just sort this out, sign the EBA’ rather than ‘sort out your problems with the union’”: at [125]. His Honour made the further observation (at [126]) that:

The acceptance of Mr Hall’s evidence as to the purpose he set out to pursue on 11, 12 and 13 June 2014 provides a further reason for concluding that the [Commissioner] has failed to discharge the onus of proof in respect to these two conversations. The [Commissioner’s] account of these two conversations on 11 and 13 June 2014 undoubtedly sits comfortably with his case as pleaded; but this account does not sit comfortably with the acceptance of Mr Hall’s evidence as to purpose and the evidence in its entirety.

86. The primary judge then turned his attention to the part of the Commissioner’s case which alleged that Messrs Hall, Miller and Smith had an “intent to coerce” Built into either signing an EBA or employing a particular person. He continued:
    128. Thereafter the Director sought to rely upon s 361 of the Fair Work Act and to cast upon these individual Respondents the onus of proving that their actions were not taken for a prohibited reason.
    129. Each of these Respondents in their affidavits denied having the intent as pleaded.

130 Mr Hall’s affidavit, for example, stated as follows:

[75] I also deny that my participation in the events at the Hawdon Place Gate on 11 June 2014 and at the Rosevear Place Gate on 12 and 13 June 2014:
(a) was in any way motivated by the reason or reasons including the reason that Built had not signed or did not propose to sign an enterprise agreement with the union;
(b) was done with intent to coerce Built to sign an enterprise agreement with the union; or
(c) was done with intent to coerce Built to employ a particular person or allocate particular duties or responsibilities to a particular person.
That evidence is accepted.

131. Mr Miller in his affidavit maintained that all he was told was that “there were asbestos issues on the property”. He also denied any wrongful purpose in his participation in the events on 11, 12 and 13 June 2014 as follows:

[9] It was no part of my reasons for being at the Gate that the union and Built were bargaining for an enterprise agreement and that I was trying to coerce Built to enter into an agreement. ...
[30] I also deny that my participation in the events at the Hawdon Place Gate on 11 June 2014 and at the Rosevear Place Gate on 12 and 13 June 2014:

(a) was in any way motivated by the reason or reasons including the reason that Built had not signed or did not propose to sign an enterprise agreement with the union; or
(b) was done with intent to coerce Built to sign an enterprise agreement with the union.
[31] I had no knowledge that either Dean Hall or Zachary Smith, or any of the other Branch Officials who attended at the gate on those days, were acting as they did because Built had not signed or did not propose to sign an enterprise agreement with the union, or with the intent to coerce Built to sign an enterprise agreement.

That evidence is accepted.

132. Mr Smith gave like evidence in his affidavit (at [46] and [47]). Mr Smith’s evidence is also accepted.
87. Later in his reasons, in dealing with the Commissioner’s pleaded case in relation to s 340, his Honour said that it was unnecessary for him to reach any concluded view on arguments advanced by the CFMEU and the other respondents to the effect that the closure of the Hawdon Place Gate did not constitute “industrial action” and that, even if it did, it did not occasion “prejudice” to Built, the latter constituting a required component of the definition of “adverse action” relied upon by the Commissioner: at [147]–[152]. Again, it should be noted that the latter issue is raised by paragraph [2] of the respondents’ amended notice of contention (see at [10] above).
88. Having expressed tentative views about these issues (namely that the Blockade was probably industrial action but that there was no evidence that it occasioned any prejudice to Built on 11 June 2014) his Honour continued (at [153]–[157]):
    153. The reason why it has been concluded that it is ultimately not necessary to resolve these arguments is that, even if the [Commissioner] had made out a case of “adverse action” having been taken which fell within item 7(c) of s 342(1), a contravention of s 340 necessarily involves a finding that conduct falls within s 340(1)(a) or (b). A contravention of s 340(1) is made out if “a substantial and operative” reason for action is prohibited: cf. Board of Bendigo Regional Institute of Technical and Further Education [2012] HCA 32; (2012) 248 CLR 500; 220 IR 445 at [104]. Gummow and Hayne JJ there concluded in respect to s 346 of the Fair Work Act:

[104] ... An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.

See also: Kennewell v MG & CG Atkins (t/as Cartinia Waste & Recyclers) [2015] FCA 716 at [51] per Tracey J; Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236; (2015) 255 IR 284 at [8] per Flick J.

154. In respect to Mr Hall it has been concluded that he has discharged the onus of proof imposed upon him by s 361 that the action he took was not for a prohibited reason. It has already been found that:

• the closure of the Hawdon Place Gate on 11 June 2014 was occasioned by Mr Hall’s concerns as to safety arising from the need to resolve any dangers presented by asbestos; and
  the purpose sought to be achieved in the subsequent closure of the Rosevear Place Gate was founded upon concerns as to safety occasioned by the prospect of increased traffic flows, including heavy vehicles. In particular, Mr Hall’s denial in [75] of his affidavit has been accepted.

155. The case as pleaded against Mr Hall at [61] and [62] of the Amended Statement of Claim thus fails.
156. So too does the [Commissioner’s] case pleaded against Mr Miller (at [63] and [64]) and Mr Smith (at [65] and [66]). Again proceeding on the assumption that the [Commissioner] has made out the allegation that the “Blockade” occasioned “prejudice” as required by item 7 of s 342(1) of the Fair Work Act, the pleaded case against Messrs Miller and Smith fails because the [Commissioner] has failed to establish that either took action that otherwise falls within s 340(1).
157. Section 340(1)(a), for example, prohibits the taking of action against another person “because” that other person has a “workplace right”. In the case of Mr Miller, evidence was given by (for example) Mr Horsham that Mr Miller was alleged to have said that “nobody is allowed on this site today ... because Built doesn’t have an EBA”. Mr Horsham also attributes to Mr Smith the words that “[t]his is an EBA issue”. This evidence forms part of the evidence that has been characterised as “truly worrying”. This evidence forms part of the [Commissioner’s] case in respect to the alleged contraventions of s 340 and also ss 343 and 355. This “truly worrying” aspect of the evidence has necessarily to be revisited in the context of the resolution of the ss 343 and 355 contraventions. For present purposes, it is sufficient to note that (albeit with considerable reservation) acceptance of the [Commissioner’s] evidence has ultimately not prevailed.

The Commissioner’s case on the appeal

89. The Commissioner’s principal complaint on the appeal related to the manner in which the primary judge dealt with (or failed to deal with) the application of s 361 of the FWA at various stages of his reasoning and to the methodology adopted by his Honour when making factual findings relating to the reasons which actuated the respondents.
90. The Commissioner submitted that the primary judge had failed to address and make findings about the objective facts before examining the reasons for the Blockade. The primary judge had, he contended, proceeded on an erroneous basis by requiring the Commissioner to prove both that the Blockade had occurred and why it had occurred to the Briginshaw standard. That error in approach was said to be apparent from what his Honour had said at [75], [84] and [123]. He had, in effect been required to prove that the respondents had acted for the malign reasons alleged by him and not for the reasons proffered by them. He had been required to do both of these things at the Briginshaw standard. So much was said to be evident from [75], [92] and [101] of his Honour’s reasons.
91. The Commissioner argued that, in order to make good his claims under s 340 of the FWA, he bore the onus to prove that the impugned conduct had occurred, that it constituted adverse action and that there existed a relevant workplace right. Upon these matters being established a presumption arose under s 361 that the relevant respondents had taken the adverse action because Built had not exercised a workplace right (to enter an enterprise agreement). Instead of proceeding in this way, the primary judge had, so it was submitted, accepted that it was “common ground” that the blockades had occurred as a result of the respondents’ actions (at [15]), but had then failed to give effect to the s 361 presumption.
92. The Commissioner contended that his case against Mr Hall had been rejected without the application of the presumption. This submission was founded, primarily, upon what had been said in paragraph [154] of his Honour’s reasons (see above at [88]) despite the fact that the prefatory words of the paragraph specifically included a conclusion that Mr Hall had “discharged the onus of proof imposed on him by s 361 that the action he took was not for a prohibited reason”. The Commissioner’s argument focussed on the two dot points which followed at [154] and which read:

It has already been found that:

• the closure of the Hawdon Place Gate on 11 June 2014 was occasioned by Mr Hall’s concerns as to safety arising from the need to resolve any dangers presented by asbestos; and
  the purpose sought to be achieved in the subsequent closure of the Rosevear Place Gate was founded upon concerns as to safety occasioned by the prospect of increased traffic flows, including heavy vehicles. In particular, Mr Hall’s denial in [75] of his affidavit has been accepted.

93. The Commissioner was unable to find, earlier in his Honour’s reasons, any of the specific findings referred to in this passage. He submitted that paragraph [75] of Mr Hall’s affidavit had not earlier been referred to and contained no more than a bare denial that he procured the blockade of the Hawdon Place Gate on 11 June 2014 and did not provide any evidence as to Mr Hall’s professed reasons for taking this action.
94. Lest the facts which had “already been found” were to be traced back to paragraphs [92], [93] and [97]–[98] of his Honour’s reasons (see above at [78] and [81]), the Commissioner submitted that none of these findings related to “why” Mr Hall had organised the Blockade. Section 361, when read with s 360, could not be rebutted simply by a denial and a finding that Mr Hall had “concerns” about asbestos on the adjacent site on 11 June 2014 and “concerns” about safety arising from increased traffic on 12 and 13 June 2014. Notably absent from his Honour’s reasons was, it was said, a finding of the real reason or reasons for Mr Hall’s action or a positive finding that Mr Hall’s reasons did not include a proscribed reason.
95. The Commissioner also raised issues about the primary judge’s rejections of the claims made against Messrs Miller and Smith. He objected that the final sentence of paragraph [156] of his Honour’s reasons (see above at [88]) identified no reasons for the finding that the Commissioner had “failed to establish that either [Miller or Smith] took action that otherwise falls within s 340(1).” He noted that the following paragraph, namely [157], did not justify the finding in [156]. The latter paragraph did not deal with Mr Smith and makes only a passing reference to Mr Miller. There were no adequate reasons, it was submitted, to support the conclusion.
96. The Commissioner also contended that the primary judge had not made any specific findings as to why Messrs Miller and Smith had engaged in the Blockade on 11, 12 and 13 June 2014 and that there had been no consideration of how either of them had discharged the onus which they bore under s 361 with respect to the Commissioner’s allegations concerning contravention of s 340.

Consideration

97. The Commissioner’s submissions raise issues about the structure and content of the primary judge’s reasons. In considering the Commissioner’s submissions it is necessary to have regard to the reasons as a whole and, particularly, to the reasons as they apply to the primary judge’s treatment of the allegations made of contraventions of s 340. In undertaking a review of the reasons it will be necessary to give attention to their structure.
98. An early section of the reasons (paragraphs [17]–[26]) appear under the heading “Onus of proof”. This section starts with references to s 140(2) of the Evidence Act 1995 (Cth) and to relevant authorities. His Honour then said (at [20]) that all of the findings of fact which he had made in respect to the Commissioner’s allegations had been made against the s 140(2) standard. His Honour then noted (at [21]) that ss 360 and 361 of the FWA had application to each of the three sections involved in the case, namely, s 340, 343 and 355. He then continued (at [23]–[25]):
    23. Whether a respondent has discharged the “reverse onus of proof” is a question to be resolved at the end of a proceeding and upon consideration of the entirety of the evidence adduced: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273 at [27]. Jessup J there observed in respect to an alleged contravention of s 340:

[27] In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.

The need to consider the entirety of the evidence, with respect, is hardly surprising. See also: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; 205 IR 392 at [372] per Barker J.

24. With respect to the separate question as to the standard of proof to be applied when seeking to rebut the presumption, it was common ground between the parties to the present litigation that the standard at that point in the analysis is the balance of probabilities. This approach is consistent with the following observations of Gray J in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139 at [20]:

[20] ... Further, s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.

25. Third, in order to invoke the reverse onus of proof, an applicant need only establish that “the evidence is consistent with the hypothesis” that a respondent was actuated by a proscribed reason: Bowling at 241. When addressing a predecessor provision to s 361 (namely s 5(4) of the Conciliation and Arbitration Act 1904 (Cth)), Mason J there concluded:

Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.

See also: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139 at [22][23] per Gray J; Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166 at [80]- [81] per Reeves J.

99. There is no suggestion that these statements of legal principle contain any misdirection. The appeal grounds question whether the primary judge failed to apply these principles when rejecting the Commissioner’s allegations.
100. The orthodox approach to dealing with allegations of adverse action said to be engaged in “because” of a particular circumstance requires the party making such an allegation to establish the existence of the circumstance as an objective fact: see Tattsbet Ltd discussed at [16] above. If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; (2012) 248 CLR 500 at 512–513, 524; [2012] HCA 32 at [31]–[33] and [65] (French CJ and Crennan J); RailPro Services Pty Ltd v Flavel [2015] FCA 504; (2015) 242 FCR 424 at 447–450; [2015] FCA 504 at [80]–[93] (Perry J). As has already been noted above (at [14]), s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is “a substantial and operative factor” in the respondents’ reasons for taking the adverse action: see Barclay (No 1) at 523 [62] (French CJ and Crennan J) and 535 [104] (Gummow and Hayne JJ).
101. In this context the question “thrown up by s 340 is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker”: Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150 at 173; [2015] FCAFC 76 at [91] (Perram J). What is involved is not an exercise in characterisation; the Court is required to make a decision about the internal reasoning process of an alleged contravener: Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [60] (Mortimer J).
102. The primary judge’s summary of his findings suggests that parts of his Honour’s reasoning departed from such an orthodox approach. As will be seen there are a number of material ambiguities in passages which the Commissioner alleges expose error. It is unclear whether certain fact finding has been made for the purpose of dealing with the matters on which the Commissioner bore the onus or on which the reverse onus fell on the respondents.
103. At the outset of his reasons (at [7]) the primary judge foreshadowed his conclusion that the Commissioner had “failed to discharge the onus of proof required to prove the contraventions.” No mention was made of any onus falling on the respondents.
104. Having considered and rejected Mr Kivalu’s evidence (at [32]–[48]), the primary judge came next to the meeting at the Praga Café which took place shortly after the first blockade had commenced on 11 June 2014. The primary judge accepted Mr Hall’s account of what had transpired at the meeting (at [62]). On that account, which was set out at [56], Mr Moore had complained about the blockade which he said was illegal. Mr Hall countered that serious safety concerns relating to asbestos on the adjoining site justified the closure of the gate. Mr Moore had raised the issue of an enterprise bargaining agreement but Mr Hall said that the safety issues had to be dealt with first.
105. The conversation at the Praga Café plainly concerned the reasons for the 11 June 2014 blockade. It did not relate to other elements of s 340 on which the Commissioner bore the onus. Despite this his Honour found that the Commissioner had failed to discharge his onus of proof and had failed to establish that the account given by his witnesses, Mr Moore and Mr Tonkovic, should be accepted (at [61]–[62]). His Honour then went on to conclude that Mr Hall’s account should be accepted (at [62]). No mention was made of s 361 in this context. It may be, however, that these findings were intended to go no further than a determination of whose account of conversations at the Praga Café should be accepted.
106. A similarly benign construction of the next section of his reasons is not open. That section was titled “The Blockade on 11, 12, & 13 June 2014” and also dealt with the question why the Blockade had been put in place. Again, the primary judge found (at [75]) that the Commissioner had failed to discharge the onus of proof which was said to have fallen on him in respect of the issues as to whether the Blockade was imposed as a means of exerting pressure on Built to sign an enterprise agreement and whether the CFMEU had raised safety issues as a sham reason for persisting with the Blockade.
107. These were matters of evidence in relation to which the Commissioner had the benefit of the presumption provided for in s 361 of the FWA. These findings cannot be regarded as forming part of the antecedent process of establishing all the circumstances of the alleged contravening conduct. Because of the presumption in s 361, the Commissioner bore no onus on the issue of the reason for the conduct. That is to say, the Commissioner will have established the alleged reason if Mr Hall did not prove he had not organised the Blockade for either of the alleged reasons.
108. The reasons for the Blockade were also considered in the following section of his Honour’s reasons titled “The reason for the “Blockade” — the objective of securing an enterprise agreement”. At [84] the primary judge found that the Commissioner had not made good his contention that one of the reasons for the Blockade on each of the three days was the ongoing negotiations between the CFMEU and Built. He went on to find that Mr Hall had a genuine concern about safety on 11 June 2014 and that this contributed to a failure, by the Commissioner, to discharge “the onus of proof required by Briginshaw” (at [92]). Immediately thereafter, his Honour found that Mr Hall’s express concerns relating to asbestos were “accepted as the reason why the Hawdon Place Gate was closed on 11 June 2014” (at [93]).
109. These conclusions were reached without any reference to ss 360 or 361 of the FWA. It is also to be observed that it is not clear whether the reference to “the reason” at [93] should be read as “the only reason”. It may be that such a construction is apposite given that his Honour did not find it necessary expressly to discount the possibility, contemplated by s 360, that other operative reasons for the first blockade on 11 June 2014 had actuated Mr Hall.
110. A similar approach was apparently adopted when the reason or reasons for the blockade of the Rosevear Place Gate on 12 and 13 June 2014 were considered. His Honour found (at [97], when read with [98]) that the prospect of increased traffic and attendant safety issues was “the reason why the Rosevear Place Gate was closed on 12 June 2014” and remained closed on the following day. Again, there was no reference to ss 360 or 361 and it is not clear whether the traffic issues were determined to be the only reason for the closure. This finding was repeated at [101].
111. The issue of the reverse onus in s 361 was, however, squarely considered by his Honour when he came (at [154]) to explain his reasons for rejecting the Commissioner’s allegations that Mr Hall had contravened s 340 of the Act. The primary judge was, apparently, not prepared to accept that the Commissioner had made out his case under the section in relation to the characterisation of the Blockade as “adverse action” as defined in item 7(c) of 342(1), at least in relation to 11 June 2014. He concluded that it did not occasion any “prejudice” to Built for the purposes of that definition on 11 June 2014 (at [152]). His Honour considered, however, that it was unnecessary for him to resolve whether “adverse action” had occurred on any of the days because of his conclusions as to whether any such action had been taken for a prohibited reason (at [153]). He then specifically dealt with s 361 as it applied to Mr Hall (at [154]). He referred to his earlier findings that the blockade on 11 June 2014 was occasioned by Mr Hall’s concerns as to safety arising from the presence of asbestos and that the closure of the Rosevear Place Gate on the two succeeding days arose from Mr Hall’s safety concerns relating to increased traffic flows.
112. Although no reference was made to s 360 in this context, a fair reading of his Honour’s reasons at [154] is that Mr Hall had been found to have taken the action on each of the three days for safety reasons and not for any proscribed reason. The two dot points in this paragraph appear to pick up, respectively, the findings made earlier at [93] in relation to 11 June 2014 and [97] (when read with [98]) in relation to 12 and 13 June 2014 of the primary judge’s reasons.
113. Those earlier findings about Mr Hall’s motivation for instituting the Blockade, on which reliance was placed for the purposes of s 361, had been made on the basis that the Commissioner had failed to satisfy an onus which was said to have fallen on him in relation to the evidence of Mr Hall’s purpose. They had not been made because Mr Hall had discharged the onus, which he carried, to satisfy the Court that he had not acted for any operative and proscribed reasons. Nonetheless, there is, in [154], a separate and specific finding that Mr Hall had discharged the onus, which he bore under s 361, to prove that he had not acted for a prohibited reason. It is evident that his Honour was conscious of the need to deal with the reason for the alleged adverse action once all the relevant circumstances had been determined. This perception is reinforced by his Honour’s reference, at the end of [126], to “the acceptance of Mr Hall’s evidence as to purpose and the evidence in its entirety.”
114. At [156] the primary judge held that the Commissioner’s case against Mr Miller and Mr Smith failed because he had not established “that either took action that otherwise falls within s 340(1).” This finding is reasonably open to a number of possible constructions.
115. First it may be understood to be a finding that the primary judge was not satisfied that either Mr Miller or Mr Smith had “participated” in or “organised” the blockades and had, thereby, taken action against Built. It may, therefore, be a finding that an essential element of a contravention of s 340, as pleaded by the Commissioner (see above at [43(b)]) had not, as a result, been established.
116. However, in our view, this construction does not sit comfortably with other passages in his Honour’s reasons. His Honour made findings (at [188] and [190]) that Messrs Smith and Miller had “participated” in the blockade but had not “organised” it. Earlier in his reasons, and in the context of dealing with ss 343 and 355, he observed (at [168]) that it had proved unnecessary for him to consider “whether ‘participation’ in an event is to be equated with ‘taking’ action.” “Taking action”, within the meaning of ss 343 and 355, covers a wider range of activities than does the defined term of taking “adverse action” which forms one of the elements of s 340. One would have expected the primary judge to have specifically held that the participation of these two officials in the Blockade did or did not constitute “adverse action” had he been directing his attention to that issue.
117. A second possible construction is suggested by his Honour’s finding at [152] that the blockade on 11 June 2014 had not occasioned any prejudice to Built. This construction would support a finding that another essential element of a contravention of s 340, as pleaded by the Commissioner (see above at [43(a)]) had not been made good. As we have noted above at [45] and [87] this issue is raised by paragraph 2 of the CFMEU’s notice of contention. However, in our view, this construction appears to be expressly excluded by the immediately preceding words in [156]: “Again proceeding on the assumption that the Director has made out the allegation that the “Blockade” occasioned “prejudice” as required by item 7 of s 342(1) of the Fair Work Act ...”.
118. That brings us to the third possible construction of the final sentence of [156] and the one that we consider is the most reasonably open. It is that his Honour was making a finding that the Commissioner’s case had failed because Messrs Miller and Smith had not acted for any proscribed reason.
119. At [157] his Honour referred to evidence, called by the Commissioner, that both Messrs Miller and Smith had, separately, said that the blockades were being undertaken because Built did not have an EBA. This evidence was said to be “truly worrying” but was dismissed because the Commissioner’s evidence “ha[d] ultimately not prevailed.” The primary judge had earlier in his reasons (at [123] and [125]) respectively, outlined in more detail his reasons for rejecting this truly worrying evidence. The evidence, if accepted, had the potential to support the Commissioner’s claim that Messrs Miller and Smith had taken adverse action against Built and would have served to counter any evidence called by them in relation to the reasons for which they took the adverse action.
120. At [131] the primary judge accepted Mr Miller’s evidence that he had not acted for “any wrongful purpose”. Mr Miller had specifically denied that his participation in the blockades had been motivated by Built’s failure to sign or unwillingness to sign an EBA.
121. At [132] the primary judge accepted evidence from Mr Smith where he denied that his participation in the blockades “was in any way motivated by the reason or reasons including the reason that Built had not signed or did not propose to sign an enterprise agreement with the [CFMEU]”.
122. At [153] the primary judge, quoting from the joint judgment of Gummow and Hayne JJ in Barclay (No 1) at [104] that a contravention of s 340(1) will be made out if “a substantial and operative” reason for the action is a proscribed reason. Immediately afterwards (at [154]–[155]), as has already been noted, he found that Mr Hall had discharged the onus of proof, imposed upon him by s 361, in establishing that he had not acted for any proscribed reason.
123. Although he did not say so expressly it is implicit, in the context of the reasons, that a similar finding was made in respect of both Messrs Miller and Smith in the paragraphs following (at [156]–[157]). Such an inference is supported by his Honour’s earlier acceptance (at [131] and [132]) of their denial that they had participated in any adverse action because of the failure of Built to enter into an EBA.
124. There is force in the Commissioner’s contention that parts of the primary judge’s reasons are difficult to construe. The reference to the Commissioner’s “worrying” evidence in this context is apt to confuse but probably amounts to no more than a finding that the statements attributed to the two officials were not made.
125. Nonetheless, when read as a whole, we consider that at [156] to [157] his Honour is to be understood as dismissing the Commissioner’s case against Messrs Miller and Smith because they had satisfied the onus, imposed on them by s 361, and established that they had not acted for any proscribed reason.
126. The Commissioner’s appeal, insofar as it relates to the primary judge’s findings rejecting his case under s 340, should, therefore, be dismissed.

DISPOSITION

127. Having regard to these findings it is not necessary that we deal with the issues raised by the amended notice of contention.
128. In our view the Commissioner’s appeal should be dismissed.

Associate:

Dated: 31 May 2018

SCHEDULE OF PARTIES