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

• Jurisdiction: Australia Federal only
• Judge: LEE J
• Judgment Date: 02 April 2019
• Neutral Citation: [2019] FCA 451
• Court: Federal Court
• Date: 02 April 2019

FEDERAL COURT OF AUSTRALIA

Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451

File numbers:	NSD 596 of 2017NSD 1594 of 2017
Judge:	LEE J
Date of judgment:	2 April 2019
Catchwords:	EVIDENCE – state of satisfaction required by s 140 of Evidence Act 1995 (Cth) – application of principles to civil penalty proceedings – probabilities derived from contemporaneous documents – significant amount of evidence not challenged – forensic decision not to adduce evidence in the respondents’ case – Jones v Dunkel inference – failure to call witness cannot make up deficiency of evidence – where evidence is not contradicted any inference favourable to that party might be more confidently drawn where a person capable of putting the true complexion on the facts has not been called – no explanation provided regarding the failure to call any witnesses in the respondents’ case ; INDUSTRIAL LAW – contraventions of ss 417, 421, 340 of the Fair Work Act 2009 (Cth) – where Union organised unprotected industrial action – interpretation of enterprise agreement – having regard to industrial purpose of agreement – where Union alleged employees were directed to work differently – relevance of dispute resolution procedure – superficial change to aspects of the work insufficient – whether suspected breach of enterprise agreement sufficient to engage protection from industrial action – no reasonable basis for belief of breach – contravention of 340 – whether industrial action constituted adverse action – the right to have employees perform work as required by the employer is a benefit under a workplace instrument – necessity of proving intent – no evidence adduced to discharge onus – sufficient if one reason of many is unlawful – belief that conduct was lawful does not make it so – alleged contravention of s 343 – particularly serious form of industrial misconduct – allegation made without detailed argument as to why such a contravention should be found – Court should receive further assistance on this issue
Legislation:	Evidence Act 1995 (Cth) s 53, 136, 140 Fair Work (Registered Organisations) Act 2009 (Cth) s 79 Fair Work Act 2009 (Cth) ss 19, 340, 341, 343, 361, 363, 417, 421, 550, 562, 793 Federal Court of Australia Act 1976 (Cth) ss 37P(2), 53A ; Work Health and Safety Act 2011 (NSW)
Cases cited:	Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; (2017) 258 FCR 257 Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ACSR 504 Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 277 IR 75 Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223 Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586; (2009) 264 ALR 201 Australian Securities and Investments Commission v Geary [2018] VSCA 103; 126 ACSR 310 Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859; (2016) 272 IR 151 Briginshaw v Briginshaw (1938) 60 CLR 336 Chong & Neale v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; (2016) 241 FCR 338 Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146; (2018) 281 IR 319 Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; (2017) 92 ALJR 106 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; (2016) 152 ALD 209 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37, (2015) 228 FCR 346 Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Gill v Donald Humberstone & Co Ltd [1963] l WLR 929 Giorgianni v The Queen (1985) 156 CLR 473 Jones v Dunkel (1959) 101 CLR 298 Kucks v CSR Limited (1996) 66 IR 182 Mealey v Power [2015] NSWSC 1678 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [215] HCA 37; (2015) 256 CLR 104 Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452; (2006) 161 IR 9 Whitlam v Australian Securities and Investments Commission [2003] NSWCA 183; (2003) 57 NSWLR 559
Date of hearing:	27, 28, 29, 30 August, 3 and 6 September 2018
Date of last submissions:	22 October 2018
Registry:	New South Wales
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	238
Counsel for the Applicant in NSD596/2017:	Mr J Fernon SC
Counsel for the Applicant in NSD1594/2017:	Mr J Darams with Mr B Rauf
Solicitor for the Applicants:	Seyfarth Shaw Australia
Counsel for the Respondents:	Mr R Reitano with Ms L Dous
Solicitor for the Respondents:	Slater & Gordon

ORDERS

		NSD 596 of 2017
BETWEEN:	PATRICK STEVEDORES HOLDINGS PTY LIMITED ABN 63 060 462 919 Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; PAUL MCALEER Second Respondent ; PAUL KEATING Third Respondent

JUDGE:	LEE J
DATE OF ORDER:	2 APRIL 2019

THE COURT ORDERS THAT:

1. The parties bring in short minutes of order to reflect the reasons for judgment at a case management hearing to be listed at 9.30am on 16 April 2019.

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

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