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Townsville City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland[2021] QIRC 334

Townsville City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland[2021] QIRC 334

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Townsville City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland & Ors [2021] QIRC 334

PARTIES:

Townsville City Council

(Applicant)

v

Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland

(First Respondent)

Lowth, Kane

(Second Respondent)

Robinson, Michael

(Third Respondent)

Harradine, Grant

(Fourth Respondent)

CASE NO:

B/2020/19

PROCEEDING:

Application for orders

DELIVERED ON:

HEARING DATES:

29 September 2021

8, 9 and 10 February 2021

MEMBER:

HEARD AT:

O'Connor VP

Townsville

ORDERS:

  1. Application dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – whether applicant exercised workplace right – where applicant managing the return to work of employee – where employee undertaking a suitable duties plan – where employee directed to undertake a functional capacity assessment – whether applicant had or exercised a workplace right within the meaning of s 285 of the Industrial Relations Act 2016 (Qld) – where workers withdrew labour for day – whether respondents organised industrial action – whether fourth respondent took adverse action in contravention of s 285 of the Industrial Relations Act 2016 (Qld) – whether second and third respondents took industrial action in contravention of s 300 of the Industrial Relations Act 2016 (Qld) – whether conduct of second and third respondents unlawful, illegitimate or unconscionable – determined applicant did not exercise a workplace right – determined respondents did not organise industrial action – application dismissed.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 282, s 284, s 285, s 300, s 306, s 308, s 313, s 314, s 473, s 571, s 574, s 575

Fair Work Act 2009 (Cth), s 340, s 341, s 343, s 355, s 361

CASES:

Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241

Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157; (2017) 267 IR 130

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

Australian Building and Construction Commissioner v Huddy [2017] FCA 739

Australian Building and Construction Commissioner v Parker (2017) 266 IR 340

Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291; (2013) 239 IR 363

Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 184 IR 333; [2009] FCA 726

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No.2) [2017] FCA 1046

Fair Work Ombudsman v Australian Workers' Union [2017] FCA 528

Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436

Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16; 106 IR 158

Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317; (2006) 164 IR 375

Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd [2013] FWCFB 7736

Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88

Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378; 106 IR 404

Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278

Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; 239 IR 441

Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441

Workpac Pty Ltd v Skene [2018] FCAFC 131

Yorke v Lucas (1985) 158 CLR 661

APPEARANCES:

Mr P.M. Zielinski, Minter Ellison Lawyers for the Applicant.

Mr C.A. Massy, Counsel instructed by Hall Payne Lawyers for the Respondents.

Reasons for Decision

  1. [1]
    This is an application by Townsville City Council (Applicant/the Council) seeking orders for compensation pursuant to s 314(b) of the Industrial Relations Act 2016 (IR Act) and an order for the imposition of civil penalties against the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEU) and others pursuant to ss 314(b), 574 and 575 of the IR Act and that any civil penalties ordered be payable to the Council.
  1. [2]
    Section 313 of the IR Act states:

313 Arbitration when conciliation unsuccessful

If the commission considers all reasonable attempts to settle the matter by conciliation have been made, but have been unsuccessful, the commission may hear and decide the application by -

  1. (a)
    making an order under section 314; or
  1. (b)
    dismissing the application.
  1. [3]
    Section 314 provides:

314 Orders on deciding application

  1. (1)
    Without limiting the commission's jurisdiction to make orders, the commission may make 1 or more of the following orders on deciding an application mentioned in s 313 -
  1. (a)
    an order for reinstatement of the person;
  1. (b)
    an order for the payment of compensation to the person;
  1. (c)
    an order for payment of an amount to the person for remuneration lost;
  1. (d)
    an order to maintain the continuity of the person's employment;
  1. (e)
    an order to maintain the period of the person's continuous service with the employer;
  1. (f)
    an order granting an interim or other injunction or make any other order it considers appropriate to prevent, stop, or remedy the effects of, a contravention of this part.
  1. (2)
    A person to whom an order under subsection (1) applies must not contravene a term of the order.

Note -

This subsection is a civil penalty provision.

Background

  1. [4]
    The Council is an employer covered by the IR Act and is a person affected by the contraventions pleaded in the Further Amended Statement of Claim[1] and has standing, pursuant to Schedule 3 of the IR Act, to bring this application
  1. [5]
    Both the Council and the CFMEU are parties to the Townsville City Council (Field and Other Employees) Certified Agreement 2019 (Certified Agreement).  The Certified Agreement has an operative date of 11 December 2019 and a nominal expiry date of 30 November 2021.
  1. [6]
    The CFMEU is a union registered under Chapter 12 of the IR Act.
  1. [7]
    At all material times, Kane Lowth, (Second Respondent), Michael Robinson, (Third Respondent) and Grant Harradine, (Fourth Respondent) were employed by the CFMEU and/or the CFMEU's nationally registered counter-part as organisers and officers and/or agents of the CFMEU.
  1. [8]
    The Council employs approximately 140 employees who are based at its Dalrymple Road depot (employees).  The employees are engaged in various works and activities, including labouring, construction, road and facilities maintenance, plant operation and truck driving.

Managing the return to work of Mr D. Finn

  1. [9]
    Mr Doug Finn is an employee of the Council engaged at the Dalrymple Road depot and his substantive role is that of truck driver.  As of 5 March 2020, Mr Finn was undertaking an approved suitable duties plan due to an earlier injury (Suitable Duties Plan).
  2. [10]
    On 18 September 2019 Mr Finn orally advised representatives of the Council that he required surgery to remove cataracts from his eyes.  He had also stopped wearing his hearing aids as he had been told by his general practitioner, Dr Mark Bartsch, that he did not need to wear hearing aids, and in any event could not afford to purchase replacement batteries for his hearing aids.  Mr Finn was stood down with pay pending confirmation of advice from Dr Bartsch.
  1. [11]
    On 24 September 2019 Mr G. Harradine sent an email to Mr Gavin Veach, General Manager, People and Culture, Council attaching a medical certificate from Dr Bartsch advising that an audiogram obtained in respect of Mr Finn 'demonstrate[d] some high frequency [hearing] loss especially' and that he saw 'no impediment to [Mr Finn] truck driving as per his HR licence ratings' (Bartsch Clearance).
  1. [12]
    On 1 October 2019 Mr Finn was issued with a letter referring him to a Fitness for Duty Assessment with Dr Angus Forbes scheduled for 25 October 2019.  Mr Finn attended the Forbes clinic on 25 October 2019, however refused to participate in the appointment on the advice of representatives of the CFMEU.
  1. [13]
    On 13 November 2019 Mr Harradine and Mr Rick Schute (Council employee and CFMEU Workplace Delegate) disputed the continuation of any Suitable Duties Plan in respect of Mr Finn and claimed that the Council had ignored the Bartsch Clearance.
  1. [14]
    Mr Finn was directed by the Council on 11 December 2019 to undertake a fitness for duty assessment to be undertaken by Dr Robert McCartney, Occupational Physician as Council assessed that the Bartsch Clearance was not sufficient to ensure that the Council met its health and safety obligations to Mr Finn, other workers or members of the public (McCartney Assessment).
  1. [15]
    On 12 December 2019 Mr Finn attended the McCartney Assessment.  Mr Robinson alleged that the direction to attend the McCartney Assessment was unlawful and amounted to harassment of Mr Finn.
  1. [16]
    Mr Robinson contacted Mr Bede Harding, Senior People and Culture Business Partner, Council by telephone and requested to meet with the Council's Chief Executive Officer (CEO) to discuss various matters, including Mr Finn's employment.  Mr Robinson said having regular meetings with the CEO to discuss issues would avoid situations where the union needed to take industrial action.
  1. [17]
    On 24 January 2020 Mr Robinson again told Mr Harding that it was important to have regular meetings with the CEO to avoid issues escalating and CFMEU members taking industrial action.
  1. [18]
    On 3 March 2020 Mr Finn was directed by the Council to attend a functional capacity assessment (Direction) which had been requested by Dr McCartney, for the purpose of assessing whether he could meet the nationally approved guidelines for the safe use of heavy vehicles (Health Assessment).
  1. [19]
    The Direction for the Health Assessment was required because, based on his own assessment, and the medical records of other health professionals, Dr McCartney assessed at the material time:
  1. (a)
    Mr Finn had a significant medical history, which included:
  1. (i)
    type 2 diabetes;
  2. (ii)
    coronary artery disease, and earlier cardiac failure;
  3. (iii)
    osteopenia;
  4. (iv)
    obesity;
  5. (v)
    hypertension;
  6. (vi)
    gout; and
  7. (vii)
    asthma.
  1. (b)
    Mr Finn had significant health problems that were impacting on his fitness to continue safely carrying out the duties for which he was employed;
  1. (c)
    there was a foreseeable and significant risk that Mr Finn would suffer further workplace injuries if he were to return to his prior full duties;
  1. (d)
    Mr Finn did not meet the requirements of the national commercial vehicle guidelines having regard to his cardiac health;
  1. (e)
    there was insufficient evidence that Mr Finn's diabetes was controlled;
  1. (f)
    Mr Finn was not fit to perform the inherent requirements of his substantive role;
  1. (g)
    if Mr Finn were to return to his substantive duties, the risk:
  1. (i)
    of Mr Finn injuring, falling ill, or aggravating a pre-existing injury; or
  2. (ii)
    that Mr Finn posed to others,

was assessed at five out of five.

  1. [20]
    The Health Assessment was scheduled for, and took place on, 4 March 2020.

Industrial action of 5 March 2020

  1. [21]
    The Applicant contents that at around 5.45 am on 5 March 2020, Mr Lowth and Mr Robinson organised a gathering of approximately 50 employees in the staff car park of the Dalrymple Road depot.  At around 6.30 am on 5 March 2020, 87 employees withdrew their labour for the day and did not undertake their usual duties (Striking Employees).
  1. [22]
    The Applicant pleads the conduct amounted to a wilful failure to perform work required under the Striking Employees' employment contracts and a ban on the performance of work or accepting work and was therefore a strike and industrial action within the meaning of Schedule 5 of the IR Act.

Workplace rights held by the Council

  1. [23]
    Section 284(1) of the IR Act defines "workplace right" (in essentially identical terms to s 341 of the Fair Work Act 2009 (Cth) (FW Act):

284 Meaning of workplace right

  1. (1)
    A person has a workplace right if the person -
  1. (a)
    has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
  1. (b)
    is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
  1. (c)
    is able to make a complaint or inquiry -
  1. (i)
    to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
  1. (ii)
    if the person is an employee - in relation to his or her employment.
  1. [24]
    Mr Finn is covered by the Certified Agreement which is an industrial instrument under the IR Act.  It is contended by the Applicant that it has workplace rights under clause 64.1 of the Certified Agreement to:
  1. (a)
    participate in a process under clause 64.1 in respect of providing support to Mr Finn in the form of alternative work in the course of making a positive effort to rehabilitate him following his injury; and
  1. (b)
    require Mr Finn to make every endeavour to participate in the Suitable Duties Plan.
  1. [25]
    Clause 64.1 of the Certified Agreement states:

In the event that any employee who becomes ill or is injured, whether from a workplace incident or not, all parties will make a positive effort to rehabilitate the ill or injured person.  The Council shall, where practicable, provide support in terms of finding appropriate work, whilst the employee concerned shall make every endeavour to participate in the agreed suitable duties plan approved by the relevant Doctor, Self Insurance Unit and Council's Rehabilitation and Return to Work Cocoordinator (sic).

Contraventions of s 285 of the IR Act

  1. [26]
    The Applicant contends that Messrs Lowth, Robinson and Harradine organised the Striking Employees to take industrial action and that such conduct was adverse action within the meaning of s 282(4) of the IR Act.  Messrs Lowth, Robinson and Harradine took the adverse action because:
  1. (i)
    the Council had the Workplace Rights;
  2. (ii)
    the Council had exercised the Workplace Rights, by making the Direction and requiring the Health Assessment; and
  3. (iii)
    the Council proposed to exercise the Workplace Rights, by seeking to implement the relevant outcome of the Health Assessment.
  1. [27]
    Messrs Lowth, Robinson and Harradine took the pleaded adverse action in contravention of s 285 of the IR Act.
  1. [28]
    Further, and in the alternative, Mr Harradine's conduct aided and abetted the contraventions pleaded against Messrs Lowth and Robinson and made him directly or indirectly knowingly concerned in those contraventions.
  1. [29]
    Section 285 of the IR Act states:

285 Protection

  1. (1)
    A person must not take adverse action against another person -
  1. (a)
    because the other person -
  1. (i)
    has a workplace right; or
  1. (ii)
    has, or has not, exercised a workplace right; or
  1. (iii)
    proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
  1. (b)
    to prevent the exercise of a workplace right by the other person.

Note -

This subsection is a civil penalty provision.

  1. (2)
    A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes to or has at any time proposed to exercise, a workplace right for the second person's benefit or for the benefit of a class of persons to which the second person belongs.

Note -

This subsection is a civil penalty provision.

Contraventions of s 300 of the IR Act

  1. [30]
    In respect of Messrs Lowth and Robinson, it is alleged that they organised the Striking Employees to take industrial action.  Moreover, they organised the action against the Council and they did so with intent to negate the Council's choice as to whether to allocate or not allocate particular duties or responsibilities to Mr Finn or to designate Mr Finn as having, or not having, particular duties. Messrs Lowth and Robinson's conduct was unlawful, illegitimate or unconscionable and in contravention of s 300 of the IR Act.
  1. [31]
    As pleaded, the conduct of Messrs Lowth, Robinson and Harradine is taken to be action of the CFMEU pursuant to s 308 of the IR Act and has contravened ss 285 and 300 of the IR Act.
  1. [32]
    Section 300 of the IR Act states:

300  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 -

  1. (a)
    employ, or not employ, a particular person; or
  1. (b)
    allocate, or not allocate, particular duties or responsibilities to a particular employee; or
  1. (c)
    designate a particular employee as having, or not having, particular duties or responsibilities.

Note -

This section is a civil penalty provision.

Submissions

  1. [33]
    The Applicant stated the CFMEU, as a union within the building industry, has actively advocated for the safety of its members in calling out those employers who do not meet their obligations under work health and safety legislation. However, in this case, the feelings of loyalty to one worker were in direct conflict with its broader obligations to its membership.  It was submitted that the conduct of the CFMEU through its organisers failed to take any account of the Applicant's work health and safety obligations to its rate payers and its employees.[2]
  1. [34]
    It was the contention of the Applicant that the direction given to Mr Finn to attend a medical examination and to require him to undergo a health assessment was in reliance on clause 64.1 and was the exercise of a workplace right. The Respondents organised industrial action on 5 March 2020, the conduct of which was designed to negate the Applicant's choice in respect of the duties to be allocated to Mr Finn; and the alleged conduct was unlawful, illegitimate or unconscionable. The industrial action was alleged to have been organised with the intention to negate the choice of the Council in respect of duties allocated to Mr Finn; and finally, the Applicant makes an accessorial claim against the Fourth Respondent in that he aided and abetted the contraventions pleaded against Mr Lowth and Mr Robinson which made him directly or indirect knowingly concerned in those contraventions. Finally, it was submitted that the conduct of Messrs Lowth, Robinson and Harradine is taken to be action of the CFMEU pursuant to s 308 of the IR Act.
  1. [35]
    The Respondents submitted their position is that:
  1. (a)
    the Applicant did not have or exercise a workplace right of the relevant type;
  2. (b)
    they did not organise the industrial action;
  3. (c)
    the reasons of the Second, Third and Fourth Respondents for acting on 5 March 2020 were not because of any workplace right held by the Council, but because the Council had adopted a flawed process in respect of Mr Finn and had reneged on its agreement that Mr Finn was only required to participate in an assessment of his ability to perform his duties as a truck driver; and
  4. (d)
    the claim for accessorial liability cannot be made out on the pleaded case and even if it can, the facts do not establish the relevant elements of actual knowledge of the alleged proscribed intention.[3]

Legal Principles

  1. [36]
    The Respondents submitted Chapter 8, Part 1 of the IR Act is in materially the same terms as Part 3-1 of the FW Act.  Specifically, s 285 of the IR Act is in materially the same terms as s 340 of the FW Act and in those circumstances the authorities dealing with Part 3-1 of the FW Act are of considerable assistance in construing s 285 of the IR Act.
  1. [37]
    In terms of the allegations relying upon s 285 of the IR Act, the Applicant must:
  1. a.
    prove that the Respondents took adverse action against the Applicant;
  1. b.
    prove that the Applicant had exercised a workplace right as identified by the Applicant; and
  1. c.
    adduce some evidence with the hypothesis that the adverse action was taken because of the exercise of the workplace right.[4]
  1. [38]
    The Respondents submit once those matters are proven by the Applicant, the onus reverts to the First Respondent to prove that it did not take the action for the proscribed reasons.  If the Applicant cannot establish that it exercised the workplace right or that adverse action was taken against it, then its case about s 285 of the IR Act will fail.
  1. [39]
    As to the Respondents' reason for taking the action, it should be noted that s 285 of the IR Act will not be made out if the Respondents' subjective reasons for taking the action are accepted and are other than that the Applicant had exercised the relevant right.[5]
  1. [40]
    What must be determined is whether the Respondents took the adverse action "because" the Applicant had exercised a workplace right. The meaning of the term "because" in s 285 of the IR Act connotes the existence of a particular reason, being an operative and immediate reason, for taking adverse action.[6]
  1. [41]
    The Respondents' referred the Commission to the decision of Australian Red Cross Society v Queensland Nurses' Union of Employees ('QNU case').[7] That case considered whether knowledge by a respondent that a person has engaged in industrial action is a pre-condition to the engagement of the presumption in s 361(1) of the FW Act (the equivalent of s 306 IR Act).
  2. [42]
    In the QNU case it was argued that Ms McIlroy did not know that Ms Emblem simply took any action at all and that is the context in which there was a reference to whether or not she took action and to what extent the decision maker knew about that.[8]
  1. [43]
    The Full Court of the Federal Court concluded that the Union was not required to prove that Ms McIlroy knew that Ms Emblem had engaged in protected industrial action before the presumption in s 361(1) of the FW Act was engaged.  The Court came to that conclusion for the following reasons.  First, the time delay between the protected industrial action and the inappropriate language incident of four to five months was not of such a nature as to make a connection between the reason alleged and the impugned conduct so remote as to be fanciful.  Secondly, if the evidence was as it was, but excluding any evidence one way or the other of Ms McIlroy's knowledge of Ms Emblem's engagement in protected industrial action, the Court took the view that it could be said that the evidence was inconsistent with a hypothesis that Ms McIlroy had acted for a proscribed purpose.  Thirdly, and most importantly, one of the evident purposes of s 361(1) is to place the onus of proving a mental state on the person best able to prove it, being the person, whose mental state is in issue.
  1. [44]
    The discharge of the reverse onus was described by French CJ and Crennan J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay ('Barclay')[9] as follows:

There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action.  The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decisionmaker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".

This question is one of fact, which must be answered in the light of all the facts established in the proceeding.  Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.  Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence.  However, direct testimony from the decisionmaker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.[10]

  1. [45]
    In Barclay French CJ and Crennan J also observed:

Secondly, it is a related error to treat an employee's union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action.  It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from an employee's union position or activities.  Such reasoning effectively institutes an interpretation of the relevant provisions indistinguishable from that of Isaacs J in Pearce, which was rejected in Bowling.  The onus of proving that an employee's union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.[11] (Footnotes omitted)

  1. [46]
    The Respondents submit such observations are relevant particularly in circumstances where the Applicant seeks to rely upon the proximity between its exercise of workplace rights and the alleged adverse action.
  1. [47]
    As identified by Greenwood J in Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd[12] in order to rebut the reverse onus, the Respondent ought to lead evidence from a person who identified themselves as the actual decision maker, explains their reasons for acting and deposes to a prohibited reason not being any part of their reasons.  Greenwood J observed:

It is odd that Blue Star is not able to rely upon an affidavit from the actual decision-maker who can say something along the lines:

'I am Ms X or Mr Y.  I am responsible for making decisions about employment allocation and the employment requirements of the company at a site.  I made a decision on date Z to terminate the employment of Coombs and Brown and I made that decision for the following reasons.  The criteria I applied in determining that the employment of Coombs and Brown had to be terminated was this.  In reaching a decision to dismiss Coombs and Brown I was not influenced by the historical fact that Mr Brown and Mr Coombs had given evidence in a proceeding commenced by the CEPU which was heard before the Federal Court.'[13]

  1. [48]
    In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (Doevendans case)[14] the High Court considered the question of whether a respondent's reasons for acting could be characterised as the industrial activity which the employee had engaged in.  In that case, the employee, Mr Doevendans, participated in a lawful activity organised by the union by holding up a sign bearing a union slogan.  By holding up the sign Mr Doevendans also advanced the views and/or interests of the union.  Mr Doevendans was dismissed for his conduct in holding up the sign.  However, the decision maker's reasons for dismissing Mr Doevendans were not that he had engaged in industrial activity, but because the sign was offensive and contravened the employer's Code of Conduct.  The High Court held that once the decision maker's reasons for acting were accepted, the respondent was entitled to escape liability.[15]  The effect of this is that a person can take adverse action against another because of the consequences of the exercise of a workplace right, without necessarily having taken any action because of the exercise of the workplace right.  This was observed by Gageler J:

The CFMEU argues that the consequence of allowing the decision of the Full Court in the present case to stand will be to undermine the statutory protection afforded to protected industrial activity by allowing an employer to escape culpability by choosing to apply its own characterisation to otherwise protected industrial activity.

Part of the answer to that argument lies in recognition of the nature of the protection that is afforded to protected industrial activity through the operation of s 346(b).  The protection afforded by s 346(b) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity. It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity.[16]

  1. [49]
    In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No.2),[17] Wigney J wrote:

The distinction drawn by Gageler J is potentially important to the resolution of the issue concerning the decision-maker's reasons in this matter. BHP Coal concerned an alleged contravention s 346 of the Fair Work Act. While it might be thought to be a very fine and highly nuanced distinction, if Gageler J's distinction is applied to s 340 of the Fair Work Act, it would follow that the protection afforded by s 340 is not protection against adverse action by reason that an employee had, or exercised, a right that happened to have the character of a workplace right. It is a protection against adverse action being taken by reason of the fact that the right possessed by the employee had the character of a workplace right.[18]

Coercion

  1. [50]
    Section 300 of the IR Act is in substantially the same terms as the coercion provisions contained in the FW Act.  The Respondents submit that the same approach should be adopted in respect of s 300 of the IR Act.
  1. [51]
    There are no authorities in this jurisdiction in respect to the construction of s 300 of the IR Act however assistance can be gained as to the meaning of "with intent to coerce" by reference to the analogous ss 343 and 355 of the FW Act and the observations made by the Federal Court concerning the import of that expression as it appeared in the former s 170NC of the Workplace Relations Act 1996 (Cth).
  1. [52]
    In Finance Sector Union of Australia v Commonwealth Bank of Australia,[19] Gyles J concluded that for the purposes of s 170NC(1) coercion requires conduct that is compulsive in the sense that the pressure brought to bear, in a practical sense, negates choice; and is unlawful, illegitimate or unconscionable.
  2. [53]
    In Australian Building and Construction Commissioner v Hall ('Hall')[20] it was held that:

It is well-established that the expression "intent to coerce" in ss 343 and 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39 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) 350 ALR 404 at 425; [2017] HCA 54 at [61] (Kiefel CJ, Keane, Nettle and Edelman JJ).

Furthermore, and most importantly for present purposes, the Full Court also held in Esso that the intent aspect of the expression "intent to coerce" applies to the negation of choice element.  This contrasts with the other element, the use of unlawful, illegitimate or unconscionable conduct, which is to be assessed objectively (see Esso at 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.[21]

  1. [54]
    The authorities concerning coercion provisions under the FW Act (and earlier s 170NC of the Workplace Relations Act 1996 (Cth)) reveal two elements:
  1. (a)
    firstly, the respondent(s) must have taken action with the intention to overbear the will or negate the choice of the relevant person; and
  1. (b)
    the action be otherwise unlawful, illegitimate or unconscionable.[22]
  1. [55]
    Similar to s 285 of the IR Act, s 306 operates to reverse the onus in respect of the Respondents' intention if the Applicant proves that action was taken and adduces evidence consistent with the hypothesis that the action was taken with the proscribed intention.
  1. [56]
    In Hall the Court discussed what was necessary to be alleged in order for the reverse onus in s 361(1) of the FW Act to be engaged:

. . . an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct.[23]

  1. [57]
    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'.

Accessorial Liability

  1. [58]
    The Respondents submit where a respondent is alleged to be a person involved, within the meaning of s 571(2) of the IR Act, in breach of s 285, s 306 has no operation.[24]  Intention in such cases must be proved by the Applicant.
  1. [59]
    In Australian Building and Construction Commissioner v Parker[25] Flick J summarised the authorities concerning the accessorial provisions and the application of those provisions to alleged contraventions involving a specific state of mind or intent.  Flick J held:

Section 550 provides as follows:

Involvement in contravention treated in same way as actual contravention

  1. (1)
    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
  1. (2)
    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

. . .

For a person to be "knowingly concerned in or a party to the contravention" for the purposes of s 550(2)(c), the person must have been an intentional participant with knowledge at the time of the contravention of the essential elements constituting the contravention:  Yorke v Lucas (1985) 158 CLR at 670.  Actual knowledge is required - mere constructive or imputed knowledge is not sufficient.  But actual knowledge may be inferred from "exposure to the obvious"Giorgianni v R (1985) 156 CLR 473 at 507 to 508.[26]

Issues to be resolved

  1. [60]
    The Respondents submit there are six substantive questions to be determined in this case:
  1. (a)
    did the Council have or exercise a workplace right within the meaning of the IR Act;
  2. (b)
    did the Respondents organise the industrial action;
  3. (c)
    has the Council adduced any evidence consistent with the hypothesis that the action of the First, Second and Third Respondents was related to the allocation of particular duties to Mr Finn;
  4. (d)
    was the conduct of the Second and Third Respondents unlawful, illegitimate or unconscionable in the way pleaded by the Applicant;
  5. (e)
    what were the Respondents' reasons for acting on 5 March 2020; and
  6. (f)
    can the accessorial liability claim against the Fourth Respondent be made out.

Did the Council have or exercise a Workplace Right?

  1. [61]
    The Applicant has to establish that it had or exercised a workplace right.
  1. [62]
    The principles in respect of the proper construction of enterprise agreements are settled.  In Workpac Pty Ltd v Skene[27] the Full Court held:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J).  The interpretation "… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …": Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J).  The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)).  To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).[28] (Emphasis added by Respondents)

  1. [63]
    As identified by the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union[29] the process of construction involves:

Clause 55.1.1 must be read in context.  It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.[30]

  1. [64]
    The Council relies upon clause 64.1 of the Certified Agreement as creating a workplace right.  Clause 64.1 imposes certain obligations on the Council and on an injured employee, namely:
  1. a.
    for the Council, where practicable to find appropriate work; and
  1. b.
    for the Employee, to participate in any suitable duties plan.
  1. [65]
    The Respondents submit that clause 64.1 does not create any right, role or responsibility or process which permits the Council to direct an employee to attend a doctor of their choosing or to participate in various assessments of their choosing.  Those rights, to the extent they exist, arise from the contract of employment.[31]
  1. [66]
    The Respondents submit that clause 64.1 of the Certified Agreement has to be construed in light of the history of enterprise agreements at the Council.  The Townsville City Council (Field and Other Employees) Certified Agreement 2017 contained the equivalent of clause 64.1.[32]  The only conclusion which can be drawn from the repetition of this clause, which gave the employer an unrestricted right to send employees to a medical examination, was that the parties did not wish to confer that power on the employer.
  1. [67]
    The Respondents state it is well accepted there is a predisposition against the implication of terms into a certified agreement.[33]
  1. [68]
    To be successful the Applicant has to establish that the direction to attend a medical examination or health assessment was the exercise of a role or responsibility or a process provided for under the Certified Agreement.  Nothing in clause 64.1 authorises or provides for a process for the giving of such directions. 
  1. [69]
    Accordingly, the Respondents state the Applicant did not possess or exercise a workplace right by giving the direction to Mr Finn.

Organising industrial action

  1. [70]
    The Respondents accept that the workers took industrial action on 5 March 2020 and that adverse action is constituted by an industrial association organising industrial action against the employer.  The Respondent contends that if the Applicant cannot establish that the Respondents organised the action, then the claim under s 285 of the IR Act will not be successful.
  1. [71]
    As the concept of organising industrial action is not defined in the IR Act reference is made to the FW Act and relevant authorities.  In MUA v Patrick Stevedores Holdings Pty Ltd[34] a Full Bench of the Fair Work Commission considered what amounted to the "organisation" of industrial action.  At [34] the Full Bench said:

… We consider that the coordination and planning of industrial action would constitute organisation of it, and neither party before us submitted otherwise.[35]

  1. [72]
    In dealing with a definition of industrial action which included organising it, the approach in BHP Coal Pty Ltd v CFMEU[36] is consistent with the approach taken by Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union[37] (in the Building and Construction Industry Improvement Act 2005 (Cth)) where His Honour said:

In my opinion, convening and conducting a meeting of workers during working hours might, but will not necessarily, constitute a ban, limitation or restriction on the performance of building work and hence be building industrial action.  Such conduct is capable of constituting a "ban, limitation or restriction on the performance of building work" if its purpose is to prevent or deter or discourage employees from performing building work and it purports to be at least hortatory, if not authoritative and binding, upon the person or persons to whom it is directed.[38]

  1. [73]
    In Australian Building and Construction Commissioner v Huddy ('Huddy')[39] the issue of organising industrial action was discussed by White J in the principles from [66] onwards.  At [71] His Honour observed:

Some decisions of Fair Work Australia indicate that conduct by way of encouragement for, or support to, industrial action will constitute an organisation of the industrial action in the relevant sense: see AMWU v UGL Resources Pty Ltd [2011] FWAFB 4777, (2011) 214 IR 237 at [22] and Abigroup Contractors Pty Ltd v CFMEU [2012] FWA 7654 at [73] (overturned on appeal but not with respect to this point).  This may be so but encouragement can take a variety of forms, ranging from active exhortation, on the one hand, to passive acquiescence, on the other.  That being so, one would not expect that any form of encouragement at all may amount to the organisation of industrial action. In my opinion, it will be a rare case, if any, in which a person may be found to have organised industrial action without having engaged in a form of positive conduct which brings about, manages, or maintains the industrial action.[40]

  1. [74]
    After considering the evidence, White J summarised his findings as follows:

The submissions of the Commissioner depended, to a significant extent, on it being accepted that a person will organise industrial action in the requisite sense if the person "encourages and enables" that action.  For the reasons given above, I do not accept that that analysis is appropriate.  Instead, I consider that organising involves acts of positive and intentional conduct bringing about or maintaining, or contributing in a material way to the bringing about or maintenance, of industrial action.  On my assessment, the conduct of neither Mr Huddy nor Mr Tait satisfies that description in relation to the industrial action pleaded by the Commissioner.[41]

  1. [75]
    It is noted in the context of this case the prohibition in ss 285 and 300 of the IR Act is upon the organising of industrial action for a particular reason or intent.  There is no obligation in the IR Act or anywhere else for the Respondents to take any positive steps to have prevented industrial action from occurring.
  1. [76]
    The Respondents submit in considering whether the allegation of organising industrial activity can be made out, it is noted the Applicant leads no evidence of any conduct by the Second, Third or Fourth Respondents at the meeting on 5 March 2020.  The Applicant relies on the Second, Third and Fourth Respondents' attendance at the pre-work meeting, the conveying of the employees' concerns and the participation in the barbecue at the head office.  The only direct evidence of what happened at the meeting came from the Second, Third and Fourth Respondents.  That evidence should be accepted.
  1. [77]
    Each of the Second, Third and Fourth Respondents gave evidence of what transpired at the meeting.  It is apparent from that evidence the desire to take industrial action and the decision to do so was made entirely by the workers who were present.  The Second Respondent attempted to dissuade them from taking that action and ultimately worked throughout the course of the day to resolve the issue so that they could return to work.
  1. [78]
    It was submitted by the Respondents that the claim in so far as it is based on organising industrial action should therefore fail.  As a consequence, all causes of action alleged by the Applicant fail.  If there was no industrial action organised, there was no adverse action and no action taken with intention to coerce.

Whether conduct unlawful, illegitimate or unconscionable?

  1. [79]
    It is submitted by the Respondents that the Applicant says the unlawful aspect of the conduct was the contravention of s 285 of the IR Act.  An issue arises as to whether a simultaneous contravention of s 285 is sufficient to ground a contravention of s 300 for the same conduct.
  1. [80]
    In Fair Work Ombudsman v Australian Workers' Union[42] Bromberg J described the difference between ss 340 and 343 of the FW Act as follows:

However, I was not referred to any cases in which that approach has been applied to ss 343 or 348.  Unlike s 340(1)(a) which is concerned with "action" which may be characterised as reprisal for past conduct, ss 343 and 348 are concerned with "action" that seeks to influence future conduct.  As Jessup J went on to say at [120] of Tattsbet, the jurisprudence to which his Honour referred at [119] was relevant to the application of the s 361 presumption to a s 340(1)(a) case and that different considerations may apply in a case reliant upon s 340(1)(b).  Section 340(1)(b) is a new provision introduced by the FW Act, addressed at future conduct, and may have more in common with ss 343 and 348 coercion than with  s 340(1)(a) adverse action.[43]

  1. [81]
    Those observations although in a different context help identify the different focus of the two provisions.  It is difficult to see why the unlawfulness element in s 300 of the IR Act could be satisfied by a contravention of s 285.  The focus of the s 285 contraventions, other than s 285(1)(b), is action that is retributive, whereas s 300 seeks to prevent future conduct.  The unlawful aspect of any contravention of s 285 (other than (1)(b)) is qualitatively different to the conduct which is proscribed by s 300 of the IR Act.
  1. [82]
    The element of unlawfulness has to attach to the action taken and s 285 of the IR Act does not render the action unlawful, but merely action taken for a particular proscribed reason.  The objective lawfulness of the action does not change.  A contravention is simply made out by the Respondents' reason.  It can be seen that the action, which is the focus of an allegation against s 300 of the IR Act, must be unlawful irrespective of the actor's reasons for acting.  Therefore, the unlawful element of s 300 cannot be made out by the alleged simultaneous contravention of s 285 of the IR Act.

Illegitimate

  1. [83]
    The Respondents submit the Applicant does not identify anything unlawful or wrongful in the alleged underlying demand.  The alleged demand was that the Applicant comply with its earlier agreement and ensure the assessment of Mr Finn be limited to his actual duties.  There is nothing inherently unlawful or wrongful about such a demand.
  1. [84]
    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Carrara case)[44] Reeves J found that lawful action could be illegitimate if it was disproportionate in its effect having regard to what was lawfully sought.  The Carrara case appears to be the only decision which adopts the notion of proportionality as informing what might be described as illegitimate.[45]
  1. [85]
    In the Carrara case, the union had exercised its right to call two 2-hour meetings per day for seventeen working days during the construction of the Commonwealth Games project.  This meant that no work could be done at the site for the entire day.  Reeves J found that the cessation of all work on the site for that period was disproportionate to the claim of a new enterprise agreement with the employer who did not employ any construction workers at the site.[46]
  1. [86]
    In this matter the facts alleged by the Applicant do not establish any disproportionality.  The alleged conduct involved a single day stoppage as a consequence of the Applicant reneging on a bargaining it had made about an important matter.  A short stoppage of work could not be properly described as disproportionate.
  1. [87]
    With respect to the contention there were other lawful means available to the Respondents, such as a dispute, it is not relevant to illegitimacy.  If the conduct does not answer the description of being unlawful there is no reason to assert that a different and equally lawful way of taking the same conduct would have changed the conduct from illegitimate to legitimate.

Unconscionable

  1. [88]
    The Applicant submits in Auimatagi v Australian Building and Construction Commissioner,[47] the Full Court refers to the issue of unconscionability:

The notion of unconscionability, as imposing a standard of right behaviour formed around conscience, will take its content from the values and expected conduct in an industrial setting.  It is a word best understood in its practical application to real life settings where there can be an articulation and expression of why, in an employment and industrial context, the pressure sought to be exerted should be ascribed such a description of departing from right behaviour.[48]

  1. [89]
    The Respondents state that in the Carrara case, Reeves J found that in order for conduct to be unconscionable within the meaning of the coercion provisions, the conduct needed to involve an exploitation of special disadvantage within the meaning of the equitable authorities.
  1. [90]
    In this case the Respondents submit there is no basis to contend that the Applicant was at a special disadvantage within the meaning of the authorities or that the conduct of the Respondents was unconscionable.

Evidence that any action taken was about Mr Finn's duties

  1. [91]
    During cross-examination, Ms Stacey Coburn, Director of Business Services, said Mr Lowth expressed a view that perhaps the functional capacity assessment of Mr Finn was against the wrong job task analysis.[49]
  1. [92]
    Ms Coburn disagreed in cross-examination that at the very emotive meeting of 60 people standing in the forecourt of the Council on 5 March 2020, Mr Lowth said words to the effect, "I'll get them back to work if you agree and commit to changing this process so that it never happens again.  I'll go out to the workforce and ask them to return to work".[50]
  1. [93]
    Ms Coburn recalled, "I had to get a response to him that day about if Mr Finn was assessed as a street sweeper, that was the cornerstone of his issue on the day and he said '[w]e've withdrawn labour, we will make a decision if they go back tomorrow depending upon what you tell me later today'".[51]
  1. [94]
    Should the Respondents' arguments about organising industrial action be accepted, then there is no need for the Commission to consider this aspect.  However, should the Commission be against the Respondents on the question of organising industrial action, then the next issue is whether the Applicant has adduced evidence consistent with the hypothesis that the industrial action was organised with the intention to negate the Council's choice about the duties allocated to Mr Finn.
  1. [95]
    The evidence of the Applicant in this regard is clearly the concern which was actuating the Respondents on 5 March 2020 in relation to the process adopted and the nature of the assessment Mr Finn had to undergo.  At no time on the Applicant's evidence did any of the Respondents agitate on the issue of Mr Finn's duties.  All of the evidence concerning what happened on 5 March 2020 is inconsistent with that hypothesis.
  1. [96]
    Consequently, if the Commission is satisfied that the industrial action was organised, the Commission should be satisfied that the coercion claim fails because the Applicant has not adduced evidence which is consistent with the hypothesis that the industrial action was organised with the intention of negating the Council's choice about the duties to be allocated to Mr Finn.

What were the Respondents' reasons for acting?

  1. [97]
    If the Commission was to determine that the Respondents organised the industrial action then this question needs to be considered.
  1. [98]
    Each of the Second, Third and Fourth Respondents gave detailed evidence about their reasons for acting on 5 March 2020.[52]
  1. [99]
    Mr Lowth makes clear his reasons for acting were a desire to resolve the workers' concerns about the process adopted, his view that the Council had departed from what had been agreed in terms of the scope of the assessment and his desire to have the workers returned to work as expeditiously as possible.
  1. [100]
    None of those reasons are because of the exercise of a workplace right as explained in the Doevendans case.  Mr Lowth expressly denies taking any action because of rights possessed by the Council under the Certified Agreement.
  1. [101]
    Clearly the workers were agitated about the treatment of Mr Finn and wanted the issue resolved and Mr Lowth took action trying to resolve those concerns.  The Respondents submit that is not the same as Mr Lowth having taken action because the Council exercised a workplace right.
  1. [102]
    The Third Respondent, Mr Robinson states his participation in the meeting of 5 March 2020 was limited.  He denies that any part of his reason for acting were rights held by the Council under the Certified Agreement.  His only reason for attending the meetings with the Council and cooking a barbecue was an attempt to resolve the workers' concerns and get them back to work.  Those reasons do not include the proscribed reason as Mr Robinson arranged the medical assessment for Mr Finn on 20 February 2020.[53]
  1. [103]
    The involvement of the Fourth Respondent, Mr Harradine was even more limited.  He took no active part in the meeting with the workers on 5 March 2020 as his only contribution was to cook the barbecue later in the day after the workers had voted to go on strike.  His reason for doing that was to increase the prospect of the workers returning to work if the matter was resolved.  Such an explanation for his conduct is entirely reasonable and is sufficient to discharge the onus and any onus imposed on him.
  1. [104]
    The evidence of the individual Respondents as to why they acted on 5 March 2020 is sufficient to displace any onus on them.

Accessorial claim

  1. [105]
    The Respondents submit the accessorial claim against the Fourth Respondent[54] does not allege that Mr Harradine had actual knowledge of any proscribed intention held by the Second or Third Respondents.  Absent such an allegation, the essential elements of the offence cannot be established against them.  Further, Mr Harradine has denied knowing that the Second or Third Respondents had any proscribed intentions when they acted on 5 March 2020 and therefore the accessorial claim against him should fail.
  1. [106]
    The Respondents submit the Commission should be satisfied:
  1. (a)
    the direction to attend a medical examination and the decision to impose a health assessment against Mr Finn did not amount to the exercise of a workplace right;
  1. (b)
    the Respondents did not organise the industrial action which occurred on 5 March 2020;
  1. (c)
    the Applicant did not adduce any evidence sufficient with the hypothesis that the conduct of the Respondents on 5 March 2020 was designed to negate the Applicant's choice in respect of the duties to be allocated to Mr Finn;
  1. (d)
    the alleged conduct was not unlawful, illegitimate or unconscionable as alleged by the Applicant;
  1. (e)
    the individual Respondents' reasons for acting on 5 March 2020 did not include a proscribed reason and did not include an intention to negate the choice of the Council in respect of duties allocated to Mr Finn; and
  1. (f)
    the accessorial claim against the Fourth Respondent should fail because no allegation of actual knowledge of the proscribed intention on the part of the Second and Third Respondents was made and the Fourth Respondent denied having such knowledge.

Consideration

  1. [107]
    Put simply, the Applicant contends that on 5 March 2020 the Respondents organised industrial action against the Applicant.  This was said to have been done because the Applicant had either a workplace right under clause 64.1 of the Certified Agreement, or because the Applicant had exercised rights under that clause.  Consequently, it is contended that the conduct is a contravention of s 285 of the IR Act.
  1. [108]
    It is also contended that the Second and Third Respondents organised industrial action against the Applicant with the intention to coerce the Applicant in respect of the duties allocated to Mr Finn.  In doing so, it is alleged that this would amount to a contravention of s 300 of the IR Act.
  1. [109]
    The Applicant claims that the First Respondent is derivatively liable for the actions of the organisers.  Further, it is claimed that the Fourth Respondent, Mr Harradine was a person involved, or an accessory in the contravention of s 285 of the IR Act by the Second and Third Respondents.
  1. [110]
    In respect of the claim under s 285 of the IR Act, in order for the Applicant to succeed it must establish that it had, or exercised, a workplace right.  It will be recalled that the workplace right relied upon by the Applicant was said to be clause 64.1 of the Certified Agreement.
  1. [111]
    Further, the Applicant must establish that the Respondents organised the industrial action; and the evidence before the Commission must be consistent with the hypothesis that the industrial action was organised by the Respondents because of the existence of the workplace right.
  1. [112]
    If the Applicant can establish those matters, then the onus under s 306 of the IR Act will revert to the Respondents to demonstrate that their reasons for acting did not include the proscribed intention.
  1. [113]
    In respect of s 300 of the IR Act the Applicant needs to establish that the Second and Third Respondents took the action, namely the organising of the industrial action and that the evidence is consistent with the hypothesis that that action was taken with the intention of negating the choice of the Applicant or overbearing its will in respect of the question of the duties to be allocated to Mr Finn.
  1. [114]
    The Applicant alleges against the Fourth Respondent an accessorial claim.  In order to establish the claim, the Applicant needs to prove that the Fourth Respondent actively associated himself with the actions of the Second and Third Respondents and importantly had actual knowledge of the essential elements of the s 285 contravention.
  1. [115]
    In accessorial claims the authorities support the view that the reverse onus does not operate in respect of the proscribed intention.[55]  As a consequence, the Applicant has to establish that the Fourth Respondent had actual knowledge of the alleged proscribed intention.
  1. [116]
    To succeed, the Applicant must establish that the direction to attend a medical examination or health assessment was the exercise of a role or responsibility or a process provided for under the Certified Agreement.
  1. [117]
    The Applicant alleged in its Further Amended Statement of Claim that it exercised workplace rights under clause 64.1 of the Certified Agreement to: (a) participate in a process under clause 64.1 in respect of providing support to Mr Finn in the form of alternative work in the course of making a positive effort to rehabilitate him following his injury; and (b) require Mr Finn to make every endeavour to participate in the Suitable Duties Plan.
  1. [118]
    The direction issued to Mr Finn on 11 December 2019 erroneously included reference to clause 68.4 of the terminated Townsville City Council (Field and Other Employees) Certified Agreement 2017.  Clause 68.4 was contained in a section of the Certified Agreement headed: Health and Safety in the Workplace.  The clause gave the Applicant a power to refer a worker for a physical or psychological assessment.  It relevantly provided that:

68.4 Employees may from time to time be required to undertake a physical or psychological assessment by an appropriate general practitioner or specialist to ensure that the work requirements or the work environment will not adversely affect their well being.  Such cost to be borne by the Council.

  1. [119]
    The correspondence of 11 December 2019 contained the direction that prior to returning to full-time duties of his nominal position (truck driver), Mr Finn was required to attend a fitness for duty assessment to clarify and confirm his current capacity to safely perform his duties.  In short, what Mr Finn was being asked to undertake was an independent medical examination about whether he can perform the essential tasks of his role without risk of injury to himself or others.
  1. [120]
    The current Certified Agreement does not include a clause similar to clause 68.4. 
  1. [121]
    Both the first directive issued on 11 December 2019 and the second directive issued on 3 March 2020 relied on clause 68.4 of the terminated Townsville City Council (Field and Other Employees) Certified Agreement 2017.
  2. [122]
    In the cross-examination of Mr James Healy, Business Partner, People and Culture the following relevant exchange took place:

Right.  Now, it is, of course, right, isn't it, that on the 11th of December 2019, the 2017 agreement was terminated?--- That's correct.

And it was terminated with effect on that day?--- Normally, that's how it goes. Yes.

Yes. And on that same day, the 2019 agreement took effect?--- That's correct.

And it's right to say, isn't it, that the 2019 agreement does not have an equivalent to clause 68.4 in it, does it?--- That's cor - that's correct.

So you'd agree with me that the specific provision that council was relying on in the direction no longer operated?--- That was an error.[56]

  1. [123]
    Clause 64.1 of the 2019 Certified Agreement is designed to ensure that in the event that any employee becomes ill or is injured, whether or not it is a workplace injury that all parties will make a positive effort to rehabilitate the ill or injured person. It places an obligation on both the Council and the worker.  It does not, as asserted by the Applicant grant a specific power to direct an employee to undergo a medical examination.
  1. [124]
    Both Mr Robinson and Mr Lowth gave evidence that they did not turn their mind to the existence of clause 64.1 on 5 March 2020.  As the evidence suggests, neither Mr Lowth nor Mr Robinson thought or knew that clause 64.1 was the right that the Applicant was purporting to rely upon.  It was not a matter that was within their contemplation.
  1. [125]
    The Respondents submit that neither Mr Robinson nor Mr Lowth were cross-examined or challenged in respect of that part of their evidence, nor did the Applicant during the process in the lead-up to the events of the 5 March 2020 explicitly say that they were relying on clause 64.1 in the Certified Agreement.
  1. [126]
    In my view, the evidence before the Commission does not support such a contention.  I accept that clause 64.1 of the Certified Agreement does not authorise nor does it provide for a process for the giving of such directions.
  1. [127]
    I do not consider that the Applicant had a workplace right as contended.
  1. [128]
    Irrespective of my finding concerning the Applicant's alleged workplace right, I accept that the reasons of the Second, Third and Fourth Respondents for acting on 5 March 2020 were not because of any workplace right held by the Applicant, but rather it was because the Applicant had embarked upon what they believed to be a flawed process in respect of Mr Finn.
  1. [129]
    In coming to that conclusion, I note, in particular, the evidence of Mr Robinson that he had reached an agreement with Mr Lynch that Mr Finn was only required to participate in an assessment (Truck Drivers' Functionalist Test) of his ability to perform his duties as a truck driver.  The trail of text messages as set out in exhibit MR-1 to the affidavit of Mr Robinson support that contention.[57]
  1. [130]
    What is pleaded against Mr Lowth and Mr Robinson is that they organised to take industrial action with the intent to negate the Applicant's choice as to whether to (i) allocate or not allocate particular duties or responsibilities to Mr Finn; (ii) designate Mr Finn as having, or not having, particular duties.
  1. [131]
    The Respondents accept that the workers took industrial action on 5 March 2020 and that adverse action is constituted by an industrial association organising industrial action against the employer.  However, if the Applicant cannot establish that the Respondents organised the action, then the claim under s 285 of the IR Act will fail.
  1. [132]
    In the affidavit of Mr Lowth, he deposed:
  1. It was clear that there was a lot of 'heat' amongst the workers at the meeting, and that this was directed at the TCC. I am an experienced union official, and this 'heat' was apparent to me in the words that they said, the body language they used and the tone of their voices. The members did not yell, but they were very direct and firm in their views.
  2. Over the course of the meeting it became apparent to me that the workers were keen to take action over Mr Finn's matter. Eventually, a motion came from the floor of the meeting to the effect that the workers should withdraw their labour for 48 hours.
  3. I could not see who proposed the motion or seconded it; however, there did not appear to be anybody dissenting to it. I verbally opposed the motion and explained to the workers that we needed more time to work through the issues with the TCC. Having regard to the actions and words of the workers, and the fact that they had passed the first motion so easily, it was clear to me that there was momentum amongst the workers for a resolution to withdraw their labour because of the issues with Mr Finn.
  4. I did not encourage or recommend that the workers withdraw their labour. I opposed the idea of a strike.[58]
  1. [133]
    Mr Lowth consistently said in his evidence that his primary concern was the process adopted by the Applicant in respect of the medical assessments to be undertaken by Mr Finn.
  1. [134]
    Mr Lowth's evidence was that arrangements had been put in place for Mr Finn to undertake medical assessments.  On several occasions, the First Respondent reached an agreement with the Applicant, on behalf of Mr Finn, that he would agree to undertake medical examinations concerning his vision and hearing problems.  Despite those agreements, the Applicant would then try and have a full functional assessment carried out on Mr Finn.  This happened on more than one occasion.[59]
  1. [135]
    In respect of the assessment to be undertaken on 4 March, what was agreed was that Mr Finn would undergo a functionality test for a truck driver which was relevant to his employment classification at the Council.  However, Mr Finn was put through a full functionality assessment. Mr Finn failed the test, and it was this outcome which precipitated the industrial unrest on 5 March 2020.
  1. [136]
    Mr Robinson took a limited role in the conduct of the meeting at the Dalrymple Road depot on 5 March 2020. His evidence was that he introduced Mr Lowth and his reasons for attending the meetings with representatives of the Applicant on 5 March 2020 and participating in the cooking of the barbecue for workers were that:
  1. (a)
    he wanted to see the workers' concerns about the process adopted in respect of Mr Finn addressed;
  1. (b)
    he wanted the workers to go back to work; and
  1. (c)
    he was unhappy with the process adopted by the TCC in that Mr Lynch had agreed that Mr Finn would only be required to undertake the TDF Test and despite that agreement, the TCC made Mr Finn do a full FC Assessment without telling anyone.[60]
  1. [137]
    In the affidavit of Mr Robinson, he deposes that:
  1. A motion came from the floor of the meeting to the effect that the workers should withdraw their labour for 48 hours.  The workers overwhelmingly supported that motion.  Neither Mr Lowth nor I spoke in favour of this resolution; the workers came up with the idea on their own and seemed to be encouraging each other.
  2. Mr Lowth was in charge of the meeting.  He did his best to calm the blokes in the carpark by saying things such as:
  1. (a)
    "Listen fellas, give us the opportunity to resolve it, I'm here today and tomorrow but I'd like the opportunity to talk to management and report back to you"; and
  1. (b)
    "Just calm down and give us an opportunity to talk to Council and resolve the issue before you make it official that you are going to go out for 48".
  1. The meeting was a heated one.  However, Mr Lowth was able to get the workers to calm down slightly.  After he spoke the workers agreed to wait around and see if he was able to resolve the issue.
  2. After Mr Lowth calmed the situation, all of the workers stayed in the carpark while they waited for him to go into the Depot and speak to management about the issue.  Based on what was being said, the workers appeared to be much calmer after Mr Lowth spoke to them.  Prior to Mr Lowth speaking the tone of things being said made me think that the workers were going to go home then and there.[61]
  1. [138]
    Later in cross-examination, the following exchange between Mr Zielinski and Mr Robinson took place:

You were concerned about Mr Finn - perhaps rightly - as a matter of loyalty to him.  You were upset at the process. And you expressed that upset to the workers, didn't you?--- Definitely not.  It was all brought up to me, and - - -

Well, brought up to you by Mr Finn?--- No, brought up to the workers.  Do you think - you think I would drop everything and come down to the depot and talk to a bloke and hook him up with counsellors if - if it wasn't serious concern?

Well, I'm not suggesting your concern wasn't a real concern, Mr Robinson.  What I'm suggesting - - -?---Well, what - - -

- - - is that you articulated that concern as a means of encouraging the workers to take strike action on behalf of and in support of Mr Finn?---You couldn't get it - you couldn't be more wrong.

All right?---You could not be more wrong.  In actual fact, I've been trying to resolve this issue the whole way through, and - and - and exactly that.  So - - -

All right.   So just pardon me. I'm moving quickly along.  Now, am I right in the summation of Mr Lowth's - of what you heard of Mr Lowth's advice to the workers along the lines of they wanted to go off on strike for 48 hours.  That was the motion that you say was - organically came from the floor; is that right?---Yeah, absolutely.

All right.  And Mr Lowth gave them advice to hold off, give him some time.  He was there for today and the next day?---Yeah.

 Give him that time.  And that was reasonable advice, wasn't it?---Absolutely.[62]

  1. [139]
    I accept the evidence of Mr Lowth and Mr Robinson that the motion to undertake the work stoppage was at the instigation of the workers present at the meeting at the Dalrymple Road depot early on 5 March 2020.  Equally, I accept that Mr Lowth took steps to calm the workers and to try and secure a resolution with the Applicant.
  1. [140]
    On 5 March 2020, Messrs Lowth and Robinson met with Ms Coburn at the Council Chambers. The purpose of the meeting was to try and secure a resolution to the dispute.  Ms Coburn did not have a complete recollection of the conversation which took place on 5 March.  She did not make any contemporaneous notes of her conversations and fairly agreed that she could not recall what was exactly said. As she explained in her evidence: "It was, as you can imagine, it was a very emotive meeting with 60 people standing in the forecourt of our council and I got dragged into a meeting, I had no prior knowledge it was happening ...".[63]
  1. [141]
    However, Ms Coburn did have a recollection that she needed to get a response to Mr Lowth that day about Mr Finn and whether he was assessed as a street sweeper - "that was the cornerstone of his issue on the day...".[64]  Later in her evidence she told the Commission that Mr Lowth had expressed a view that perhaps the functional capacity was against the wrong job task analysis.[65]
  1. [142]
    The evidence of the Applicant in this regard makes clear that the concern which was actuating the Respondents on 5 March 2020 centred on the process adopted by the Applicant and the nature of the assessment Mr Finn had to undergo.  At no time on the Applicant's evidence did any of the Respondents agitate on the issue of Mr Finn's duties.
  1. [143]
    The Applicant challenged Mr Robinson's credibility concerning a statement he made at a meeting with Ms Coburn and Messrs Veitch and Poole at the Council Chambers around 13 December 2020.  Mr Robinson said that the Applicant was acting contrary to the law by not permitting Mr Finn to return to work until he received a specialist's report.  He agreed that he said "he would take it further" if Mr Finn was not permitted to return to work.  Mr Robinson said he would refer the issue to CFMEU's IR department to see if there were any legal avenues that could be pursued to resolve the issue with Council.
  1. [144]
    The Applicant urged the Commission to draw an inference having regard to Mr Robinson's history and that pressure would be exerted by the CFMEU on the Applicant through organised industrial action.  I am not convinced that the evidence before the Commission is sufficient to draw such an inference.
  1. [145]
    The evidence must give "rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability".[66]
  1. [146]
    In Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd[67] the Victorian Court of Appeal wrote:

The principles, relating to the drawing of inferences in civil cases, are well established.  First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork.  Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be 'the more probable inference' from those facts.  In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference…

In its recent decision in Marriner & Ors v Australian Super Developments Pty Ltd, this Court summarised the relevant principles as follows:

"A party seeking to establish that an inference ought to be drawn must demonstrate that that inference is the more probable one which arises from the established facts.  The inference must be based on evidence rather than speculation …".[68] (citations omitted)

  1. [147]
    Mr Harradine took no active role in the meeting on 5 March 2020.  It is contended by the Applicant that he aided and abetted the contraventions of s 285 of the IR Act as pleaded against Mr Lowth and Mr Robinson and, as a consequence, he was directly or indirectly, knowingly concerned in those contraventions.
  1. [148]
    The involvement of Mr Harradine in the 5 March 2020 meeting was, at best, tangential.  In his evidence he said that "smoko" was provided to the workers for the purpose of increasing the prospect that they would return to work if the matter was resolved.
  1. [149]
    In cross-examination he explained:

And that was also the reason why you helped organise the barbecue, to keep - keep everyone striking together on the same page?--- It was to keep everybody together so I could report back in the - in the instance that we were able to reach agreement with council, and to get those people back to work.[69]

  1. [150]
    The Amended Statement of Claim does not allege that Mr Harradine had actual knowledge of any proscribed intention held by Mr Lowth or Mr Robinson.
  1. [151]
    In Yorke v Lucas,[70] Mason ACJ, Wilson, Deane and Dawson JJ said:

There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention.[71]

  1. [152]
    The Applicant has failed to plead or establish actual knowledge on behalf of the alleged accessory, Mr Harradine.
  1. [153]
    The accessorial claim against the Fourth Respondent must fail. First, absent clear evidence of knowledge on behalf of the Fourth Respondent, the Applicant cannot succeed in attributing personal liability; secondly, Mr Harradine has denied knowing that the Second or Third Respondents had any proscribed intentions when they acted on 5 March 2020.[72]
  1. [154]
    I do not accept that the evidence supports a conclusion that Messrs Robinson, Lowth or Harradine organised the industrial action.  As was observed in Huddy what is required to organise industrial action is that a person "encourages and enables" that action.  As White J observed, "...organising involves acts of positive and intentional conduct bringing about or maintaining, or contributing in a material way to the bringing about or maintenance, of industrial action."[73]
  1. [155]
    It is not, in my view, sufficient for the Applicant to rely on the Second, Third and Fourth Respondents' attendance at the meeting on 5 March 2020, that "smoko" was provided to the workers or indeed the fact that Mr Lowth addressed the meeting.
  1. [156]
    The Applicant has not adduced any evidence of the conduct of the Respondents to meet the description of "organise" as expressed in Huddy.

Conclusion

  1. [157]
    For the reasons advanced above, the application should be dismissed.  I am of the view that the Applicant did not exercise a workplace right.  Further, the Applicant has failed to establish the claim that the Respondents were responsible for organising industrial action on 5 March 2020.  Having failed to establish that the Respondents did not organise the industrial action, all causes of action alleged by the Applicant must also fail. Moreover, if there was no industrial action organised, then there was no adverse action and no action taken with intent to coerce.
  1. [158]
    The Commission makes the following orders:

Orders

  1. Application dismissed.

Footnotes

[1] Further Amended Statement of Claim, [30]-[35] (Applicant granted leave to read and file at hearing on 8 February 2021).

[2] TR1-6, LL19-28.

[3] Respondents' Outline of Submissions filed 10 February 2021, [2].

[4] Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215, [64]‑[73].

[5] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243.

[6] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243. 

[7] [2019] FCAFC 215, [64]-[73].

[8] TR3-30, LL28-30.

[9] (2012) 248 CLR 500.

[10] Ibid [44]‑[45].

[11] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, [62].

[12] (2009) 184 IR 333; [2009] FCA 726.

[13] Ibid [37].

[14] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243, [91]-[92].

[15] Ibid [21]-[22] per French CJ and Kiefel J.

[16] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243, [91]-[92].

[17] [2017] FCA 1046, [307].

[18] Ibid [307].

[19] (2000) 106 FCR 16; 106 IR 158.

[20] [2018] FCAFC 83.

[21] Ibid [25]-[26].

[22] Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16; 106 IR 158, [20]‑[23];  Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378; 106 IR 404, [38]-[41];  Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441, [105];  Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436, [12]-[33];  Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; 239 IR 441, [7], [70]-[72].

[23] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, [14].

[24] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50, [59].

[25] Australian Building and Construction Commissioner v Parker (2017) 266 IR 340.

[26] Ibid [121], [126].

[27] Workpac Pty Ltd v Skene [2018] FCAFC 131, [197].

[28] Ibid [197].

[29] Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, [30].

[30] Ibid [30].

[31] Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395, [4].

[32] Clause 69.1.

[33] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260, [18].

[34] Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd [2013] FWCFB 7736.

[35] Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd [2013] FWCFB 7736, [34].

[36] [2013] FCA 1291; (2013) 239 IR 363.

[37] [2006] WASC 317; (2006) 164 IR 375.

[38] Leighton Contractors Pty Ltd v Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317, (2006) 164 IR 375, [30].

[39] Australian Building and Construction Commissioner v Huddy [2017] FCA 739.

[40] Ibid [71].

[41] Ibid [147].

[42] Fair Work Ombudsman v Australian Workers' Union [2017] FCA 528.

[43] Ibid [73].

[44] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157; (2017) 267 IR 130.

[45] Ibid [152].

[46] Ibid [10], [153].

[47] [2018] FCAFC 191.

[48] Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191, [157].

[49] TR1-60, LL1-3.

[50] TR1-57, LL27-30.

[51] TR1-57, LL37-42.

[52] Exhibit 13, Affidavit of William Lowth affirmed 8 February 2021, [60]-[61];  Exhibit 12, Affidavit of Michael Robinson affirmed 8 February 2021, [65]-[66];  Exhibit 11, Affidavit of Grant Harradine affirmed 8 February 2021, [43].

[53] Exhibit 12, Affidavit of Michael Robinson affirmed 8 February 2021, [15].

[54] Further Amended Statement of Claim, Applicant granted leave to read and file at hearing on 8 February 2021, [32].

[55] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50, [59]. 

[56] TR1-33, LL13-23.

[57] Exhibit 12, Affidavit of Michael Robinson affirmed 8 February 2021, [14]-[21].

[58] Exhibit 13, Affidavit of William Lowth affirmed 8 February 2021.

[59] Affidavit of William Lowth affirmed 8 February 2021, [6]

[60] Exhibit 12, Affidavit of Michael Robinson affirmed 8 February 2021.

[61] Exhibit 12, Affidavit of Michael Robinson affirmed 8 February 2021.

[62] TR2-42, L28-TR2-43, L7.

[63] T1-57, LL22-24.

[64] T1-58, LL44-46.

[65] T1-60, LL2-3.

[66] Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278, [34]. 

[67] [2017] VSCA 88.

[68] [2017] VSCA 88, [101]-[102].

[69] TR2-57, LL12-15.

[70] (1985) 158 CLR 661, 670.

[71] Ibid [16].

[72]Affidavit of Grant Harradine affirmed 8 February 2021, [45]

[73] Australian Building and Construction Commissioner v Huddy [2017] FCA 739, [147].

Close

Editorial Notes

  • Published Case Name:

    Townsville City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland & Ors

  • Shortened Case Name:

    Townsville City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland

  • MNC:

    [2021] QIRC 334

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    29 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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