FEDERAL COURT OF AUSTRALIA Australian Workers' Union v CBI Constructors Pty Ltd [2016] FCA 745 File number: VID 261 of 2014 Judge: JESSUP J Date of judgment: 24 June 2016 Catchwords: INDUSTRIAL LAW – adverse action – where employment request refused by contractor for multiple reasons, including alleged prior involvement in industrial activity – consideration of phrase "refuse to employ" – whether circumstances fell within justified refusal by reason of "commercial duress" by principal company – compensation claim judged by counterfactual – pecuniary penalty order Legislation: Fair Work Act 2009 (Cth) ss 342, 346, 347, 545, 546 Workplace Relations Act 1996 (Cth) s 298L Cases cited: Australian Workers' Union v John Holland Pty Ltd (2001) 103 IR 205 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 Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4 Shannon v Transfield Worley (2001) 113 FCR 53 Stephens v Australian Postal Corporation [2014] FCA 732 Wood v City of Melbourne (1979) 41 FLR 1 Date of hearing: 26-28 April 2016 Date of last submissions: 18 May 2016 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 87 Counsel for the Applicants: Mr J Fetter Solicitor for the Applicants: Ms L Aksu of Australian Workers' Union Counsel for the First Respondent: The first respondent did not appear Counsel for the Second Respondent: Mr C O'Grady QC Solicitor for the Second Respondent: Herbert Smith Freehills ORDERS VID 261 of 2014 BETWEEN: AUSTRALIAN WORKERS' UNION First Applicant TERRENCE JOHN LEE Second Applicant AND: CBI CONSTRUCTORS PTY LTD First Respondent WOOD GROUP PSN AUSTRALIA PTY LTD Second Respondent JUDGE: JESSUP J DATE OF ORDER: 24 JUNE 2016 THE COURT ORDERS THAT: 1. The second respondent pay a penalty of $17,500 for its contravention of s 346 of the Fair Work Act 2009 (Cth) in November 2013 constituted by its refusal to employ the second applicant for reasons which included the reason that he had been an officer of the first applicant and, in that capacity, had represented and advanced the views, claims and interests of the first applicant. 2. The said penalty be paid to the first applicant. 3. Otherwise, the Application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JESSUP J: 1 In this proceeding the applicants, The Australian Workers' Union, ("the Union") and Terrence Lee allege that the second respondent, Wood Group PSN Australia Pty Ltd ("WGPSN") refused to employ, and threatened to refuse to employ, Mr Lee because he had been an officer of the Union and had engaged in industrial activity, in contravention of s 346(a) and (b) of the Fair Work Act 2009 (Cth) ("the FW Act"). The proceeding has been discontinued as against the first respondent, CBI Constructors Pty Ltd. 2 WGPSN is a project delivery and maintenance contractor that services the hydrocarbons industry. For the past 15 years, it has contracted with Esso Australia Pty Ltd ("Esso") for the supply of brownfields engineering, procurement and construction services at its onshore (the Longford Gas Plant, the Long Island Point facilities, the Barry Beach Marine Terminal and associated pipelines) and offshore (the Barracuda, Snapper, Tuna, West Tuna, Marlin A, Marlin B, Flounder, Cobia, Fortescue, Mackerel, Halibut, Kingfish A, Kingfish B, West Kingfish, Bream A, and Bream B offshore platforms) Bass Strait oil and gas sites. 3 WGPSN's construction employees are skilled in mechanical, instrumentation and electrical trades, and include welders, fitters, boilermakers, riggers, scaffolders and electricians. Depending on their particular trade, they are eligible for membership of the appropriate trade union, be it the Union, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union, or the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. WGPSN's workplaces are, and have traditionally been, heavily unionised. 4 The number of construction employees employed by WGPSN at any particular time fluctuates, depending on the level of work that is being performed, and the number and nature of projects that Esso has requested WGPSN to complete. Since 2004, WGPSN has fully mobilised and fully de-mobilised its entire Esso construction workforce three times. As at October 2013, there were approximately 120 employees employed to perform work at the onshore sites and 70 employees employed to perform work at the offshore sites. On 31 July 2015, there were approximately 150 employees employed to perform work at the onshore sites and 8 permanent employees employed to perform work at the offshore sites. 5 WGPSN's construction employees are required to work on various projects and at locations across the onshore and offshore sites, depending on the particular job and skills involved. These labour requirements may vary from day to day or week to week, depending on the various stages of the various projects concerned. On any particular day, an employee may potentially move in to and out of a variety of different projects on a particular site. Further, due to the ebbs and flows of onshore and offshore project work, it is not uncommon for employees to move between onshore and offshore work, such as when there is a reduction in offshore work which coincides with an increase in onshore work (or vice versa). 6 It is a requirement of Esso that all employees working on its sites have specified "minimum required competencies" ("MRCs"), covering matters such as site induction, site safety, electrical hazards and general firefighting. These MRCs are Esso-specific and cannot be substituted by equivalent external qualifications. In addition to the MRCs that must be held by all workers on Esso sites, others apply to particular situations depending on the nature and situation of the work being performed, such as where work must be done in a confined space. MRCs must be renewed periodically, depending on the particular qualification. Typically, MRCs must be renewed every year, every two years or every three years. 7 For a rigger/scaffolder – the classification of work which is relevant in this case – there are 18 MRCs required to be held for work on an onshore site, and some additional MRCs required if such an employee were to carry out his or her work offshore. How long it would take for a new employee to obtain these MRCs, and how much it would cost to put such an employee through the necessary training, have become contentious issues, so I shall not make a finding about those matters now. I shall confine myself to noting the evidence-in-chief of Ben Mackin, a construction manager employed by WGPSN, that the process could take more than a week and (with all pre-employment checks) would cost about $10,000. Because of the size of this investment in a new employee, as well as to maintain its skill base, it is WGPSN's practice, when employment opportunities arise, to give priority to existing employees. 8 Due to the fluctuations in labour requirements, WGPSN generally maintains a core crew of permanent staff which it then supplements with casual employees as required. At any one time, about 15-20% of the workforce is typically employed as casual "top-up" labour. These casual employees are usually those previous permanent full-time employees who have been laid off due to a downturn in project work. WGPSN maintains a "crew register" recording the details (names, contact details, MRC qualifications and recent work history) of potential staff who are available to work. This group of potential employees is sometimes referred to as the "casual pool". The register is organised by classification, including the classification of rigger/scaffolder. Workers in that classification are typically qualified at a level which is either "basic", "intermediate" or "advanced". Most workers within this group have additional qualifications such as those for trades assistant, responsible officer, blasting and painting and crane operator. Workers listed in the crew register usually have their MRCs up-to-date. 9 If a vacancy arises in the onshore workforce, and this coincides with a reduction in the offshore workforce, in filling the vacancy WGPSN will give priority to any surplus offshore workers. If there is no corresponding reduction in the offshore workforce, WGPSN will turn to the casual pool when filling the vacancy. If there is no suitable candidate identified in the casual pool, WGPSN will turn to the general pool of job applicants held by the human resources department. Mr Mackin, to whom I have referred, said that he frequently receives resumes from workers seeking to obtain work with WGPSN, including those referred, or recommended, by existing employees, for example. Typically, he would refer such resumes to the human resources department, and the workers concerned would be considered for employment in the relevant classification if, but only if, a vacancy arose which could not be filled by a surplus offshore worker or from the casual pool as described above. 10 Mr Lee has been a member of the Union or its predecessor since about 1985. Between 1979 and 1990, he worked as a rigger or scaffolder on numerous construction projects in the Latrobe Valley, including (for a few months in about 1979) the Esso project at Longford. Between 14 September 1990 and 1993, he was employed by the Federated Ironworkers' Associated of Australia as an organiser. That union amalgamated with the Union, and Mr Lee was then employed by the Union from about 1993 until 31 July 2012 as an organiser for the Gippsland region. 11 As an organiser for the Union, Mr Lee carried out duties which included recruiting workers as members, representing members' industrial interests, participating in industrial tribunal proceedings, negotiating industrial agreements, and exercising rights of entry. He had many dealings with WGPSN and its predecessor, Kellogg Root Brown. He and his members successfully negotiated a number of enterprise agreements and, at times, engaged in industrial disputation and took protected industrial action. Part of Mr Lee's responsibility involved members of the Union employed by Esso. In that role, he had numerous dealings with Esso, specifically with various industrial relations managers, including (from the late 1990s or early 2000s) Bill Vickers. Over the period since then, there were several industrial disputes, including bargaining disputes, as between the Union and Esso. 12 Mr Lee left the employ of the Union on 31 July 2012, and started looking for work as a rigger or scaffolder. Over about the next 15 months, he worked as a rigger in three situations at a site near Gladstone, at an offshore site in Bass Strait and at a site at Millmerran. During this time, Mr Lee took steps to get his qualifications up-to-date. His original dogman's licence and his Group 5 Power Winch licence from the 1970s remained valid. His Further Offshore Emergency Training card, issued in about 2010, was valid unti1 2014. His Marine Security Identification Card, issued in about 2011, remained valid. In late 2013, he renewed his advanced rigging licence and obtained a forklift licence. He renewed his scaffolding licence in about January 2014. 13 So much for the background. The facts of immediate relevance in this proceeding commence with Esso's decision, made by no later than about mid-2013 it seems, to shut down sections of its plant at Longford for maintenance, commencing on 13 January 2014. This shutdown would involve WGPSN, and it was decided to undertake preliminary isolation work one week before the start of the shutdown as such, that is, on 6 January 2014. That would involve at least some employees returning earlier from their customary period of annual leave than they might have anticipated, and would require, therefore, the giving of four weeks' notice to the relevant employees of WGPSN's intention in that regard. Although it was not clear in the evidence when this notice was given, it was Mr Mackin's unchallenged evidence that he called for volunteers and opened up discussions with the Union in July 2013 about the need for some employees to return to work on 6 January 2014. According to Mr Mackin, although there was some initial reluctance on the Union's part to support this early return to work, that was soon resolved and preparations thereafter proceeded in an atmosphere of co-operation. 14 Mr Lee's successor as organiser for the Union in relation to the Esso sites was Jeff Sharp. It was he, accordingly, with whom Mr Mackin dealt in the lead-up to the January shutdown. In a conversation which Mr Sharp placed at "roughly September/October" and Mr Mackin placed at the "end of October/November" (under cross-examination he accepted that it was in September or October - I shall refer to it as "the first conversation"), Mr Sharp raised with Mr Mackin the possibility of Mr Lee securing employment as a rigger/scaffolder on the shutdown. The two men's recollections of that conversation were not on all fours. 15 According to Mr Sharp, the first conversation occurred at what he described as a quarterly meeting. Mr Mackin said that WGPSN had some extra shutdown work coming up at Longford at Christmas time, and they wanted to work over the Christmas break. Mr Mackin was not sure how long the shutdown would take, but it would be of the order of three to four weeks. Neither was Mr Mackin sure of how many employees would be needed, but it would be about 17. Mr Sharp welcomed that news. But he said to Mr Mackin, "I can help you out if you can help me out", and presented Mr Mackin with the names of some people who should be considered for employment during the shutdown. They included Mr Lee. Although Mr Mackin's general response to this request was, "I will see what I can do", he gave Mr Sharp a more particular response in relation to Mr Lee: "Come on. You've got to be kidding. It will be hard to get Terry Lee on an Esso job because of his past activities as a union organiser." Mr Sharp's response was to tell Mr Mackin that Mr Lee was no longer involved in the Union. But Mr Mackin was not keen on the idea, because he "basically" told Mr Sharp that "Esso wouldn't allow it." Mr Sharp reiterated that Mr Lee was not an organiser and was not "involved in the Union". He then asked Mr Mackin whether, if he (Sharp) checked with Esso and they said it was okay, he (Mackin) would give Mr Lee a job, and Mr Mackin's response was "Well, yes. I will have a look at it." 16 According to Mr Mackin, this conversation occurred not at, but immediately after, the quarterly meeting, when Mr Sharp (and one of the Union's delegates) took him aside. Mr Sharp said something along the lines of, "I will help you if you help me", which Mr Mackin took to be a reference to Mr Sharp, as organiser, being in a position to facilitate the early resumption of work for the shutdown. Mr Sharp asked Mr Mackin to have a look at employing Mr Lee and a number of other workers, whose resumes he would send through. Mr Mackin's response was that he would give Mr Lee a job the following day, but it was not up to him. Indeed, he added that he would probably get the sack if he gave Mr Lee a job. Mr Sharp asked what the problem was, and Mr Mackin's response was, "Come on. Esso wouldn't allow it". Mr Sharp said that he would ring Mr Vickers and "pave the way" for Mr Lee to be employed by WGPSN. Mr Mackin said that, if Mr Sharp did that and let him know, he would do what he could, adding, "I will do my best to facilitate that." 17 Mr Sharp was cross-examined extensively about his evidence that, in the first conversation, Mr Mackin said that it would be hard to get Mr Lee on to an Esso job because of his past activities as an organiser. Notwithstanding that Mr Sharp had not, he accepted, included this in the affidavits which he made for the purposes of this proceeding (and which were not read to the extent that they dealt with conversations), he was firm in his evidence that Mr Mackin did make such a statement. In chief, Mr Mackin gave his own account of the first conversation, as I have summarised it above, but he said nothing on this aspect of Mr Sharp's evidence. He was not invited to comment on that evidence. At this point, therefore, the court had Mr Sharp's evidence and no denial from Mr Mackin. 18 In his evidence-in-chief, Mr Mackin had referred to the fact that Mr Sharp and Mr Vickers (of Esso) were "adversaries". No doubt misinterpreting this as a reference to Mr Lee and Mr Vickers, when Mr Mackin was under cross-examination counsel for the applicants put it to him that he had described Mr Lee as Esso's adversary, and Mr Mackin accepted that Mr Lee and Mr Vickers had been adversaries. He agreed that he was referring to institutional adversariness, in the sense that the Union and Esso "sometimes had opposing interests". He denied that he had, in the first conversation, mentioned that Mr Lee was Esso's adversary; but his cross-examination continued as follows: And there's no reason to raise Esso except for the fact that you believed Esso would have a problem with you hiring Mr Lee?---That's what – that's what I thought. That was my belief. That was your belief?---My belief. That's right. And the reason Esso would have a problem is his history as an adversary; yes?---Well, I - - - That was your thinking?---Well, it was – yes, it was possibly – yes, it was my thinking. Yes. And when we talk about an adversary - - -?---Mmm. - - - we're talking about his role with the AWU; yes?---Well, it would be along those lines. 19 Taken together with the absence of any denial by Mr Mackin that he told Mr Sharp that it would be hard to get Mr Lee on to an Esso job because of his past activities as an organiser (other than, somewhat tangentially and incidentally perhaps, his denial under cross-examination that he had used the word "adversary" in conversation with Mr Sharp), Mr Mackin's acceptance that the fact of Mr Lee having been Esso's adversary in an industrial relations setting was why he told Mr Sharp that Esso would not allow the employment of Mr Lee on one of its sites sustains the finding, which I make, that Mr Mackin did make such a statement to Mr Sharp in the first conversation. I find also that, in Mr Mackin's own thinking, the "adversary" reference was a metaphor for Mr Lee's past activities as an organiser. 20 Before proceeding further, I should refer to one aspect of Mr Mackin's evidence that was, I would have to say, unsatisfactory. It raised its head from time to time. When giving evidence about what he actually said to Mr Sharp in the first conversation, Mr Mackin did not mention the casual pool (ie the group of recently-employed workers, one of whose opportunities for work on the shutdown would presumably have been denied had been Mr Lee been given a job). But, when asked by his own counsel whether there was anything else that he "might have said to Mr Sharp about how [he was] going to go about engaging people for this work", Mr Mackin replied: Well, I had already told Jeff that we had a number of guys on the casual pool. Jeff was certainly well aware of the downturn in offshore. We report redundancies to all unions of people that are being made redundant, and that's a process we've held and done forever. We don't give the names, but we give the numbers, and we follow up with the names on the day that it happens. So obviously Jeff was aware that we had a rather large casual pool for the works that we had either at Longford or LIP or Barry's Beach. Clearly, that was evidence of what he (Mackin) presumed that Mr Sharp knew. It was not evidence of anything said in the first conversation. 21 Under cross-examination, this aspect of the evidence came out as follows (still with reference to the first conversation): Your – as I understand that answer, you were telling him falsehoods in order to get him off your back. Is that – well, is that your evidence?---I needed – I needed the opportunity to check what was going on with our – with our casual pool to see if there was a position for Terry. You didn't tell him that, did you?---Well, no. No, I didn't. You didn't say, "Wait – wait a week for me to check the casual pool"?---I – sorry. Sorry. I did tell Mr Sharp that there were people that were in front of Terry in terms of the casual pool. I had given Mr Sharp notification of all of the redundancies that were going on. No, no. I'm – I'm talking about this conversation?---That conversation - - - This conversation?---Yes, and this is what leads up to that conversation. Again, Mr Mackin was here, as I read him, seeking to invoke previous indications given to Mr Sharp in the normal course to give colour to his actual response to the latter's request. There was in fact, I would find, no mention of the casual pool. 22 Returning to Mr Sharp's evidence, he said that, after speaking to Mr Mackin, he promptly telephoned Mr Vickers. He asked him whether he had any issues if Mr Lee ended up on one of the Esso sites. Mr Vickers' response was to explain to Mr Sharp that Esso hired contractors to carry out work, and it was up to them to source their own labour. He told Mr Sharp that WGPSN "engage contractors to do their work and if they deem them qualified then that was an issue for [WGPSN]". With this information, Mr Sharp returned to Mr Mackin. In what I shall describe as "the second conversation", he told Mr Mackin that he had spoken to Mr Vickers, who did not have "an issue with it". According to Mr Sharp, Mr Mackin's response was, "Well, that's bullshit". Mr Sharp then asked Mr Mackin to give Mr Vickers a ring to confirm what he, Sharp, had related; and Mr Mackin agreed to do that. 23 In chief, Mr Mackin did not give evidence specifically about this second conversation with Mr Sharp, but, when reminded about it under cross-examination, his evidence did not depart materially from Mr Sharp's own evidence (albeit that, I would have to add, he appeared to be substantially reliant on the leading questions put to him by counsel for the applicants, more so than upon his own recollection). Although, at first, Mr Mackin was unable to recall having told Mr Sharp that he would ring Mr Vickers, when he was pressed on the point he accepted that he had done so. He did not in fact ring Mr Vickers, nor, on the evidence, at any point speak to Mr Vickers, or anyone from Esso, about the proposal that Mr Lee should be employed by WGPSN. 24 The timing of things to this point can be located by an email which was sent by Mr Lee to Mr Sharp after the second conversation. It was sent on 29 October 2013, and attached Mr Lee's resume. On 5 November 2013, Mr Sharp forwarded the email and attachment to Mr Mackin. In turn, Mr Mackin sent the resume to WGPSN's human resources section and asked for it to be filed. 25 The next relevant event was a telephone call from Mr Lee to Mr Mackin ("the third conversation"). Mr Lee placed this call at 12 November 2013. According to his evidence, he opened by saying that Mr Sharp had suggested that he give him (Mackin) a ring about the possibility of employment with WGPSN. Mr Mackin's response was, "Oh, yeah, look, Jeff has been speaking to me about that. But I'm concerned or worried about our client should we employ you." Mr Lee then told Mr Mackin that Mr Sharp had spoken to Mr Vickers about the matter, and he (Vickers) did not have a problem with it. Mr Mackin said that he himself "wouldn't have a problem with it" and would give Mr Lee a job "tomorrow", adding, "but there's just this issue with the client." Referring to Mr Vickers, Mr Mackin added, "And I don't trust that [cunt]". Mr Lee told Mr Mackin that, in his dealings with Mr Vickers, he had not had a problem with him "not being upfront or honest". Mr Mackin's response was that Mr Lee should leave it with him, and that he would take the matter as far as he could and get back to Mr Sharp in about a week. 26 Mr Mackin's evidence did not depart materially from Mr Lee's on the subject of the third conversation. 27 Mr Sharp next spoke to Mr Mackin about Mr Lee immediately after the next quarterly meeting between the unions and WGPSN, held at the Morwell office of the Union. I shall refer to that as the "fourth conversation". That was in about late November 2013. Mr Sharp asked Mr Mackin how the labour was going for the shutdown, and specifically about his earlier inquiry in relation to the employment of Mr Lee. According to Mr Sharp, Mr Mackin's response was, "Look, it's not going to happen. Terry is not going to get a job on this." He said that Esso would not allow Mr Lee to commence work, and that, if he were to hire Mr Lee, he (Mackin) would "get the arse". Mr Sharp rejoined, "They wouldn't give you the arse. You're their golden boy." But Mr Mackin was not to be moved on the matter. Mr Sharp asked him whether he was "ruling out" the prospect of Mr Lee getting a job, and Mr Mackin said that he was. As a result, Mr Sharp told him that he (Sharp) would not support an early return to work in what would otherwise have been the Christmas holidays for his members. He said, "If you're not going to help me out, I'm not going to help you out." 28 In chief, Mr Mackin's evidence about the fourth conversation was that, after the meeting, Mr Sharp took him aside and asked him how he was going with getting Mr Lee a job. In his evidence, Mr Mackin said that he thought he "might have said [that he] would give [Mr Lee] a job tomorrow" but it was not up to him. He also told Mr Sharp that WGPSN had "a number of people in the casual pool that were there to be considered", to which Mr Sharp responded that none of the members of the Union that were working for WGPSN would have a problem with Mr Lee being hired. Mr Mackin told him that he did not agree. At some point, according to Mr Mackin, Mr Sharp said, "you're the construction manager … you can put on who you want," to which Mr Mackin replied that he always had a duty to the casual pool, and that he would probably get the sack if he were to put Mr Lee on. 29 Under cross-examination, Mr Mackin's evidence about the fourth conversation departed in one respect from what he had said in chief. He accepted that he had not told Mr Sharp of the numbers of workers in the casual pool who would anticipate being called up for employment during the shutdown. He insisted, however, that Mr Sharp was aware of that circumstance. Relevantly, the cross-examination proceeded as follows: And the reason that you made that decision was that matters had not progressed since the first conversation, meaning that it was still your belief that Esso wouldn't allow it?---No. The – the numbers in our casual pool weren't dropping, going anywhere. They were going to be sitting there to fill the voids of any other positions we had. Well, you didn't say any of that to Mr Sharp, did you?---No, I didn't. But he knew, and I had – I had said to Jeff prior to that, that we had casual guys in our casual pool that we were going to be using. Well, that's prior to this meeting?---Yes. But this meeting again was - - -?---He knew – he still knew it. He didn't forget it. This was another instance in which, as I discerned it, Mr Mackin sought to use the existence of the casual pool to provide background and context to his evidence of a conversation which he had with Mr Sharp, but in which the matter was not, as I would find, actually mentioned at all. I find that the only reason which Mr Mackin explicitly gave to Mr Sharp for his refusal to employ Mr Lee was that Esso would not allow it. 30 It was during the fourth conversation – and made necessary by Mr Sharp's insistence that he make clear whether he was ruling the matter out – that Mr Mackin actually decided not to offer employment to Mr Lee. 31 The applicants rely on paras (a) and (b) of s 346 of the FW Act, which provide as follows: A person must not take adverse action against another person because the other person: (a) is or is not, or was or was not, an officer or member of an industrial association; or (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b);… In relation to s 346(b), the applicants rely on subparas (ii), (iii) and (v) of para (b) of s 347, which provide as follows: A person engages in industrial activity if the person: … (b) does, or does not: … (ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or (iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or … (v) represent or advance the views, claims or interests of an industrial association;… 32 The Union was, and is, an industrial association. As an employed organiser of the Union, Mr Lee had been, over an extended period to July 2012, an officer within the meaning of the FW Act. Within the terms of s 346(a), he "… was … an officer … of an industrial association", the past tense of this formula, of course, being referable to that period. 33 Turning to s 347(b), it is convenient to take subparas (ii) and (iii) together. Each requires that there have been a lawful activity. Under subpara (ii), it is the "person" who must have organised or promoted it on behalf of the industrial association. Under subpara (iii), it is required that the activity have been organised or promoted by the association, and the "person" must have encouraged or participated in it. When pressed by the court to identify (in the evidence) the activity upon which he relied, counsel for the applicants was, I would have to say, in some difficulty. The only evidence given by Mr Lee himself on the subject was that which I have paraphrased in para 11 above. That very high-level evidence provided no basis for the low-level task of fact-finding which subparas (ii) and (iii) require in the circumstances of this case. Counsel made it clear that it was not any activity along the axis of the relationship between WGPSN and the Union upon which the applicants relied. Rather, it was activities which were organised, promoted etc by or on behalf of the Union along the axis of its relationship with Esso. But the evidence did not reveal, at least in any useful sense, what those activities were. What I have set out in para 11 above may give a general idea of what Mr Lee's role was, but it is, in my assessment, insufficient for the court to make findings of fact under s 347(b)(ii) and (iii). 34 Particularly in a penal proceeding, it was not enough, in my view, for the applicants to go no further than to refer to a history of industrial relations dealings with Esso, including the negotiation of enterprise agreements and occasional disputation. Unless the activity is identified with some specificity, the court has no way of knowing the quality of Mr Lee's connection with it, assuming there was one. Under the provisions being considered, did Mr Lee organise, promote, encourage, or participate in the activity? This important, and very low-level, factual inquiry was not, I would have to say, confronted and resolved by counsel for the applicants. 35 For the above reasons, I am not satisfied that Mr Lee did any of the things referred to in paras (ii) or (iii) of s 347(b) of the FW Act. 36 On the other hand, I am satisfied that Mr Lee did, in his dealings with Esso over the years, represent and advance the views, claims and interests of the Union. That is naturally to be inferred from the matters set out in para 11 above. There is a degree of generality about that conclusion, of course, but the way subpara (v) of s 347(b) is expressed makes that, in my view, appropriate. Thus I accept the applicants' factual case under that subparagraph. 37 The next question is whether adverse action was taken against Mr Lee. The applicants rely here on item 2(a) in the table to s 342(1) of the FW Act, under which it will be adverse action if a "prospective employer … refuses to employ [a] prospective employee". They say that WGPSN, through the agency of Mr Mackin, refused to employ Mr Lee in late November 2013 when the former finally decided that the latter would not be offered employment on the shutdown at Longford, planned to commence in January 2014. 38 It was submitted on behalf of WGPSN that it did not "refuse to employ" Mr Lee within the meaning of item 2 in the table in s 342(1) of the FW Act because, at the time when Mr Mackin was engaging in discussions with Mr Sharp about the employment of Mr Lee, there was no vacancy which he might have filled. Counsel relied on the ruling by Moore J in Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117, 121: Having regard to the context in which the expression "refuse to employ" appears in s 334(2) [of the Industrial Relations Act 1988 (Cth)], I have concluded it relates to a refusal by an employer to employ a person for a proscribed reason when employment would or might otherwise occur. That is, it concerns the refusal of an employer to employ a person by refusing to enter a contract of employment. That arises, in my opinion, only if a position or vacancy exists to which the employment would have related at the time of refusal. His Honour's ruling must, however, be understood in the factual context against which it was made. That context was of a construction project in relation to which the required complement of employees had been taken on some two months before the alleged refusal to employ. There was no evidence of positions being available on the project at the time of the alleged refusal. The case is, in my view, of limited utility is giving content to the notion of "refusal" where the employment referred to is prospective and the refusal is said to have a forward-looking context apropos that employment. In such a context, there may be, and in the present case there were, a number of opportunities for employment notwithstanding that, because the work had not yet commenced, there may not be a specific position which can described as "vacant". 39 More recently, Flick J canvassed a number of the authorities in this area of the legislation, including Fraser, and expressed the view that, "[g]iven the infinite variety of factual circumstances in which the issue may arise for determination", attention should be confined to the facts of the case at hand: Stephens v Australian Postal Corporation [2014] FCA 732 at [22]. With respect, I consider that to be very sound advice. I propose to follow it. 40 It was in late November 2013 that Mr Mackin ultimately ruled out the prospect of Mr Lee being employed on the shutdown. As he accepted in his evidence, that involved a decision by him that Mr Lee would not be so employed. Counsel for WGPSN submitted that there was, at that stage, only a proposal for an early return from the Christmas break on 6 January 2014, and that nothing eventually came of that proposal. As a result, it was submitted, the vacancy into which Mr Lee might have been employed had not crystallised, and Mr Mackin's decision could not, therefore, be characterised as a refusal to employ. I accept neither the submission nor the factual premise on which it was based. Mr Sharp's request that Mr Lee be employed was for the shutdown, and did not relate merely to the initial week. The shutdown was more than a proposal: it was a planned operation, albeit that some co-operation was, apparently, required from the Union if work were to commence on 6 January. The period of Mr Sharp's representations to Mr Mackin coincided with the timing of such consideration as, it may be inferred, WGPSN was giving to the engagement of labour for the shutdown. 41 It was also submitted on behalf of WGPSN that, since Mr Lee had not made "a proper application for employment through the iRecruitment portal", there could have been no refusal to employ him. I would not accept that submission. That he had not made such an application may well have been a reason why WGPSN did not employ him - although I do not find that it was - but it was irrelevant to the question whether Mr Mackin's decision, in late November 2013, not to employ Mr Lee amounted to a refusal. In my opinion, it did. 42 For those reasons, I accept the applicants' case that WGPSN, relevantly a prospective employer, refused to employ Mr Lee, relevantly a prospective employee, thereby taking adverse action against him within the meaning of s 342(1) of the FW Act. 43 The applicants advanced an alternative case that, if Mr Mackin did not refuse to employ Mr Lee – ie in the sense that, at the time when he made the decision, no actual vacancies had yet arisen – his words should be understood as a threat to do so as and when vacancies arose. Because I have upheld the applicants' primary case under s 342(1), there is no occasion to consider this alternative case. However, factually, I am not satisfied that Mr Mackin threatened to do anything. His conversation with Mr Sharp at Morwell did not foreshadow that an adverse decision about Mr Lee's employment would be made at some later point: he made the decision not to employ Mr Lee then and there, and told Mr Sharp so. He did not make a threat. 44 I turn now to the question whether Mr Mackin refused to employ Mr Lee because he had been an organiser in the employ of the Union, or because he had represented or advanced the views, claims or interests of the Union. In his affidavit, Mr Mackin said: For me to have bypassed this process and employed Mr Lee would have been unfair to existing WGPSN employees and former employees listed in the casual pool. It would also have been unfair to the general pool of job applicants held by the human resources department. In addition, for me to have bypassed this process and employed Mr Lee would have involved significant unnecessary expense because of the need to provide Mr Lee with the training involved in obtaining the required [MRCs]. Whilst I was of the view that a decision by me to employee Mr Lee would not be popular with Esso, that was not the reason or part of the reason for my decision not to offer Mr Lee a job. The reasons why I did not offer Mr Lee job was that I was not prepared to give Mr Lee priority over existing WGPSN employees or members of the casual pool. I was also not prepared to incur the expense involved in Mr Lee obtaining the required MRC's when there were a sufficient number of potential employees who had all or almost all of the required [MRCs]. The reason I did not offer employment to Mr Lee was not and did not include that he had: (a) been an officer or member of the [Union]; (b) recruited workers to be members of the [Union]; (c) represented the industrial interests of members of the [Union]; (d) participated in proceedings before the Fair Work Commission or its predecessors; (e) negotiated agreements with employers about the terms and conditions of employment of members and/or persons eligible to be members of the [Union]; or (f) visited premises for the purposes of engaging in discussions with employees whose industrial interests the [Union] was entitled to represent or for the purpose of investigating suspected contraventions of workplace laws. 45 I do not accept that the matters referred to in items (a) and (c) on the above list were not part of Mr Mackin's reasons for refusing to employ Mr Lee. Neither do I accept that part of his reasons did not include a perception by him that the employment of Mr Lee would not be popular with Esso. To the contrary: the fact that the employment of Mr Lee by WGPSN would not be acceptable to Esso was the very reason that Mr Mackin gave to Mr Sharp, initially, for his reservations about the proposal and, ultimately, for his refusal to give further consideration to the proposal. As Mr Mackin accepted under cross-examination, his reasoning at relevant times was that the employment of Mr Lee would not be acceptable to Esso because Mr Lee had, during his time as a representative of the Union, been Esso's adversary in industrial relations matters – this being, I would find, a compendious yet direct reference to his position as organiser employed by the Union and to his representation of the views, claims and interests of the Union. 46 Had the only relevant axis of interaction been as between WGPSN and the Union, then, the applicants' case invoking ss 346(a) and 347(b)(v) would appear to have been complete. But that was not the axis of interaction to which Mr Mackin's reasons referred to at all. Indeed, counsel for the applicants accepted that it was the relationship between the Union and Esso that was relevant; and that it was essentially because of his concern about Esso's reaction to the employment (by WGPSN) of someone who had been an organiser and who had represented and advanced the views, claims or interests of the Union that Mr Mackin refused to employ Mr Lee. According to counsel, that was a distinction without a difference: it may have made the analysis required by s 346 an indirect one, but it was a relevant one nonetheless. 47 In the submission of counsel for WGPSN, if the court reached the point which I have reached in these reasons, it should be held that the actual reason which caused Mr Mackin to refuse employment to Mr Lee, in the sense required by the jurisprudence established in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, was his desire to "accommodate" Esso, not any of the reasons proscribed by the provisions on which the applicants rely. Further, counsel relied on two earlier cases which were said to be analogous and unfavourable for the applicants, the first of which was Australian Workers' Union v John Holland Pty Ltd (2001) 103 IR 205. 48 In John Holland, the employer was engaged in a construction project which was, at the relevant time, only at an early stage; but there were, at that time, at least some members of a particular union, to which I shall refer as the CFMEU for ease of understanding the extracts from the court's reasons set out below, employed on the site in question. Another union, to which I shall refer as the AWU for the same reason, requested the employer to employ one of its members, a Mr McGee, who was then looking for a job, with a view to him being the AWU delegate on the site. The employer agreed to that, but no sooner had the employment commenced than officials of the CFMEU objected to the presence of the AWU on site and, in support of that objection, caused their members on the site, and on four other of the employer's construction sites in the Melbourne metropolitan region, to stop work, thereby bringing work on those sites to a halt. Mr McGee was thereupon dismissed from his employment. It was alleged against the employer that he had been dismissed because he was a member of the AWU and because he proposed to become the AWU delegate on the site. 49 Goldberg J rejected those allegations. His Honour accepted that it was the CFMEU's objection to the presence of an AWU member on the site that "commenced the train of events which resulted in the termination of Mr McGee's employment" (103 IR at 212 [35]), however – … that conclusion does not resolve or determine the answer to the question – what was the reason why the respondent terminated Mr McGee's employment? The AWU's reason or reasons for wanting Mr McGee's employment terminated did not automatically become the respondent's reasons for terminating his employment, and it is necessary to determine the respondent's reasons for terminating Mr McGee's employment. (103 IR at 213 [37]). It was necessary, therefore, to examine the actual reason for Mr McGee's dismissal which was operative in the mind of the manager who made the relevant decision. Here his Honour held that the major reason was "the fact that he wanted to get the respondent's employees on its four work sites back to work as soon as possible." (103 IR at 213 [39]) 50 Expressing his conclusions as to the relationship between Mr McGee's membership of the AWU and his proposal to be the AWU delegate on the site, on the one hand, and the reasons for the termination of his employment, on the other hand, Goldberg J said (103 IR at 214-215 [41]): … it was the stoppages on the work sites which made Mr Newton decide that Mr McGee should leave the Laverton site. His belief that Mr McGee had not been employed may have been misguided, but that belief and his decision were directed to resolving the problem of the stoppages on the work sites. They were not directed to any issue of AWU membership, or Mr McGee being proposed as an AWU delegate …. And (103 IR at 215 [42]): Mr McGee's membership of the AWU may have been the catalyst for the CFMEU's antagonism to him, but that antagonism for that reason was not transferred to the respondent. And (103 IR at 215 [43]): It is necessary to characterise the reason or reasons why the respondent terminated Mr McGee's employment. They are not necessarily conterminous with the reason why the CFMEU did not want Mr McGee on site, which involved him being a member of the AWU. I am satisfied that the respondent did not terminate Mr McGee's employment because he was a member of the AWU, or was proposed to be an AWU delegate on site. I am satisfied that the major operative reason why Mr Newton and Mr Bennetto decided that Mr McGee's employment should be terminated was the fact that work had ceased at the respondent's four work sites as a result of the employment of Mr McGee and the respondent was incurring significant daily losses at the Laverton, Woodend and Werribee sites. The respondent terminated Mr McGee's employment because of an admixture of factors, namely the breach of the EBAs, the failure to comply with the respondent's Procedures, and to solve the problem of the stoppages of work on the respondent's work sites and the losses it was suffering and would continue to suffer as a result of the stoppages, which was the major reason. 51 As noted by Goldberg J in John Holland, an earlier case on not dissimilar facts had been Wood v City of Melbourne (1979) 41 FLR 1. 52 The other case on which counsel for WGPSN relied was Shannon v Transfield Worley (2001) 113 FCR 53. That was a pleadings motion, in which the applicant, someone who had been dismissed from his employment, sought to amend his Statement of Claim by particularising how the reasons of another company (also a respondent in the case) came to be the reasons of the employer. It was contended that the other company had reasons for the dismissal of the applicant that were prohibited ones under s 298L of the Workplace Relations Act 1996 (Cth), and that the applicant was dismissed on the instruction of, and for the reasons held by, that other company. In the course of argument, counsel for the applicant had, it seems, made it clear that his client's case was not that the relevant manager of the employer itself harboured any prohibited reason, and did not rely on s 298V (the equivalent of s 361 of the FW Act) in that regard. 53 In rejecting the motion to amend on the ground that a case along the lines indicated would not be arguable, Carr J said (113 FCR at 63-64 [49]): In my opinion, it is very clear indeed that the literal interpretation of ss 298K(1) and 298L advanced by the applicant must fail. Section 298K(1) prohibits, in strong mandatory terms, an employer from, relevantly dismissing an employee for a prohibited reason or for a reason that includes a prohibited reason. The word "for" qualifies the reason why the employer engages in that conduct. In my view, it is not reasonably arguable that the reasons referred to in s 298K can mean reasons which are not held by the employer. His Honour relied on John Holland and Wood. 54 I shall return to these authorities from 2001, but, because it was referred to by counsel for WGPSN more so than because it is determinative, it is appropriate first to look at more recent authority about the operation of the "because" dimension of s 346, and by which the court is bound. In Barclay, the High Court held that it was the decision-maker's actual reason or reasons for taking the adverse action that fell to be considered. That broad proposition was developed somewhat further in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243, in relation to which I would, with respect, repeat the terms in which I identified the principle by reference to which that case was decided in Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150, 160 [30]: [T]he protection given by s 346 was not against adverse action being taken by reason of the employee engaging in an act or omission that had the character of a protected industrial activity, but, rather, it was protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity. In the same case, Perram J said (231 FCR at 169 [77]): That the conduct might be susceptible to multiple characterisations was irrelevant at the legal level. The only issue was a factual one, viz what were the actual motives of the decision-maker. 55 Unlike the cases just referred to, the present one does not involve any question of the characterisation of Mr Lee's conduct, either objectively or in the thinking of Mr Mackin. Neither Mr Lee's status as a former organiser nor his previous representation of the views etc of the Union were seen in a different light, or given a different characterisation, by Mr Mackin. Indeed, as will be apparent from my reasons above, his description of Mr Lee as Esso's former "adversary" involved a compendious, yet sufficient, metaphor for that status and that representation. The issue in the present case, rather, is whether the fact that Mr Mackin's thinking related to the presumed concerns of Esso, rather than to those of WGPSN directly, takes the case out of the realm of s 346. 56 In my opinion it does not. Section 346 is concerned with why the decision was made, and in that sense the focus is on the state of mind of the decision-maker. What takes the present case out of the category of which Wood, John Holland and Shannon (particularly the latter) are examples, in my view, is that there was in fact no intervention by Esso in WGPSN's decision whether to employ Mr Lee. Esso did nothing by way of threat, compulsion, direction nor even request to influence that decision. Thus it could not be said, analogously with John Holland, that WGPSN made the decision to escape from the commercial duress to which it had been subjected by a third party, nor, analogously with Shannon, that WGPSN made the decision because it was instructed to do so by a third party entitled to exercise authority in the matter. Indeed, in his evidence Mr Mackin made it clear that, had the proposal to employ Mr Lee ever been raised directly with Esso, the position which Esso would have taken would have involved the use of a very straight bat: Mr Vickers would have reiterated what he said to Mr Sharp, that questions of employment were entirely a matter for WGPSN. 57 In my view, Mr Mackin's refusal to employ Mr Lee because of the presumed opposition of Esso to that course was a refusal for the reason that he imputed to Esso. This is not to "transfer" Esso's reason to WGPSN: indeed, there was no evidence of what Esso in fact thought about the matter at all. Rather, his reasons were his own, not Esso's. What he did, entirely within his own thinking, was to assume that Esso would be opposed, and why it would be opposed. Wanting to co-ordinate WGPSN's actions with what he assumed Esso would want, he decided that Mr Lee should not be employed. He did so, I would find, because Mr Lee had been Esso's adversary in an industrial relations setting; that is, as I have held above (ie removing the metaphor), because Mr Lee had been an organiser for the Union and had acted as such in representing the views, claims and interests of the Union. 58 For the reasons I have given, I reject WGPSN's argument that Mr Mackin's concern about Mr Lee's former adversarial position makes no contribution to the applicants' case under s 346 because it was a concern about Esso's assumed thinking rather than a reflection of WGPSN's own position. It follows, and I find, that WGPSN took adverse action against Mr Lee for reasons which included the reason that he had been an organiser for the Union and had acted as such in representing the views, claims and interests of the Union. That would be enough to establish WGPSN's liability under s 346: see FW Act, s 360. 59 It is necessary, however, to consider also whether Mr Mackin took that action for another reason, or for other reasons, as well. I would find that he did have other reasons, namely, that it would have involved "significant unnecessary expense" to equip Mr Lee with the MRCs required for work on Esso sites and it would have been unfair to those whose names were in the casual pool to have given Mr Lee employment in preference to them. The extent of the expense that would have been involved in training Mr Lee to acquire the MRCs was controversial at trial, and I shall return to it below in the context of his compensation claim. But the fact that this was in the back of Mr Mackin's mind is a matter on which I have no doubt. The other reason mentioned here was, of course, related, in the sense that those in the casual pool already had the required MRCs and would, for that reason at least, reasonably have anticipated that they would be the first to be considered for employment if an opportunity arose. Neither of these reasons was mentioned by Mr Mackin to Mr Sharp, of course, but the former made it quite clear in his evidence that the latter's familiarity with the employment practices of WGPSN, and with the reality that previously retrenched employees in the casual pool assumed that they would be the first to be considered for future casual employment, made specific mention of this aspect of the matter quite unnecessary. They were, as it were, part of the wallpaper which provided a silent background to the discussions between Mr Mackin and Mr Sharp. 60 So was the fact that, as Mr Sharp himself recognised, his request on behalf of Mr Lee was for favourable treatment. It was not as though Mr Lee, unqualified though he was, had simply applied for work off the street, as it were. The request was channelled through someone, Mr Sharp, who was presumed to have – and he himself took it that he had – special access to WGPSN management. Not only that, but Mr Sharp put the request to Mr Mackin on the basis that he (Sharp) had the capacity to influence the success of the opening stages of the shutdown: "I can help you out if you can help me out", as he put it in his own evidence. Although, in my reasons above, I have been critical of Mr Mackin's introduction of references to the casual pool into his evidence about the conversations which he had with Mr Sharp, I have no doubt but that he felt that Mr Sharp's request put him in a difficult position. When he received Mr Lee's resume, he passed it on to personnel in the normal course. He rather hoped, I gather, that the problem would go away. But it did not. I would find that an aspect of Mr Mackin's thinking in relation to the request for the employment of Mr Lee was a sense of discomfort about the circumstances in which the request was being prosecuted. 61 To avoid misunderstanding, I would add that Mr Mackin readily accepted that there were occasions when employment applications other than from workers in the casual pool were processed to successful outcomes. There were also instances in which jobs had been secured as a result of informal representations by, for example, existing employees or others with direct access to WGPSN management. In such cases, however, the qualifications of the applicants concerned were considered in the normal way. I gathered that to give a job to an applicant like this who lacked the necessary MRCs would be most unusual, to say the least. 62 What I have said on the matter presently under discussion relates, of course, to situations comparable to that which existed in the lead-up to the shutdown in January 2014. It does not relate, for example, to a situation in which WGPSN might have been required to engage in a major engagement of permanent staff, where the resources available in the casual pool would manifestly be insufficient. Neither does it relate to a situation in which the engagement of someone with specific additional skills or qualifications was seen to be advantageous, such as the rigger/scaffolder hired by WGPSN on 21 November 2013 who was also a ticketed crane operator, and who was hired specifically to perform duties as such. 63 Consideration of Mr Mackin's benign reasons for refusing to engage Mr Lee is presently relevant because of the latter's claim for compensation, to which I now turn. That case is made under s 545(2)(b) of the FW Act, which empowers the court to award compensation for the loss which a person has suffered because of a contravention of, amongst other provisions, s 346. In this context, the question arises: what would have happened if WGPSN had not refused to employ Mr Lee for the proscribed reason? According to the applicants, it would have employed him. This opens the gate for the applicants to propose what was, in effect, a counterfactual which would have involved Mr Lee being employed as a rigger/scaffolder on the shutdown at Longford, him performing satisfactorily in that role, him continuing in that casual employment for the four weeks necessary to entitle him to become a permanent employee in accordance with the enterprise agreement, and so on. Subject to the accepted vicissitudes, this made Mr Lee's compensation claim a very substantial one. 64 WGPSN rejects this frame of analysis. It says that, absent any proscribed reason in the mind of Mr Mackin, Mr Lee would still be very unlikely to have been employed on the shutdown. It points to Mr Mackin's secondary and tertiary reasons for being reluctant to employ him, placing particular emphasis upon Mr Lee's lack of MRC qualifications and the fact that someone in his position, not having previously worked for WGPSN, would not be employed in preference to former employees, in the relevant classification, in the casual pool. 65 Conceptually, I accept WGPSN's approach. I accept that it must be part of the applicants' compensation case to prove, on the probabilities, that Mr Lee would have been employed on the shutdown in a situation that was devoid of any consideration of his previous union office or role, but in which the facts were otherwise the same. What is the likelihood that Mr Lee would have been employed in such a situation? 66 A copy of the crew register as at 13 December 2013 was in evidence. It showed that there were 31 scaffolders/riggers in the casual pool at that time. Not all of them would necessarily have been available for work. Two were on "income protection" and one was "unavailable until further notice". Three were working in the area on a casual basis for a company identified only as "UGL": Mr Mackin expressed the view that they would readily work as casuals for WGPSN if work became available. Three were, at the time, working as casuals at Longford and one was so working at Long Island Point. If none of those were available as additional labour, it would, as a matter of arithmetic, leave 21 scaffolders/riggers in the casual pool from whom labour might have been drawn for the needs of the shutdown. But this simple, and perhaps naïve, calculation is based upon a number of assumptions which the evidence would not sustain, such as that those then working for "UGL" would not be available if wanted and that those then working at Longford and Long Island Point would continue to be occupied on their then tasks rather than being available for work in connection with the shutdown. Questions such as these, I would have to say, were not well-addressed in the evidence-in-chief of WGPSN's witnesses. It was only in re-examination that Mr Mackin was asked to tally up, from the crew register, the number of scaffolders/riggers that would have been available to resume work on 6 January 2014, assuming that work was to proceed on that day. His answer was 18. He was not asked to explain, and he did not explain, how he arrived at this figure. He did add, however, that those actually working at Longford "would be interested in working at Longford". 67 As against that, the applicants tendered a spreadsheet that had been discovered by WGPSN, described as a "recruitment tracking spreadsheet". When taken to it in cross-examination, Mr Mackin made it clear that it was not his document and he knew little or nothing about it. Notwithstanding that deficiency, he readily agreed with counsel for the applicants that the spreadsheet showed the riggers/scaffolders who had been engaged on a casual basis at Longford in each of the months from January 2013 to February 2015. There were two who commenced on 25 December 2013, one on 26 December 2013 and 19 in January 2014. In the course of re-examination, Mr Mackin was asked, "as best as [he could] recall", from where these casual workers were engaged, and he replied: "They would have been from our casual pool." 68 It puzzled me at the time, and it continues to puzzle me, why a company with a sophisticated system of personnel administration such as WGPSN seemingly was could not have directly identified who was in the casual pool as at 13 December 2013 and reconciled that with the riggers/scaffolders who were engaged between then and the end of January 2014. The burning question, which was never directly confronted, is whether WGPSN in fact engaged any, and if so how many, riggers/scaffolders in that period otherwise than from the casual pool. If so, the applicants' case that Mr Lee, absent the reason for his rejection which was unlawful under s 346, might well have been one of them would have been that much closer to crossing the bar. Instead, the court has been asked to assess the probabilities on the strength of little more than a highly abstracted juggling of the numbers. 69 What I have written in the previous paragraph might have the appearance of being critical of the way that WGPSN conducted its case, but this was a matter on which the applicants bore the onus. It was, and is, part of their case to prove that Mr Lee would, on the probabilities, have been engaged at Longford. As against this, to the extent that WGPSN, as the holder of the relevant records, carried the evidentiary onus at any point, it has done enough to show that Mr Lee would not necessarily have been engaged. Indeed, not being in the casual pool and not having any of the required MRCs, the probabilities were not looking all that good for Mr Lee. That is why it ought, I would observe with respect to those involved, have been important if not critical for the applicants to drill down into WGPSN's spreadsheets to see who were in fact employed as riggers/scaffolders on the shutdown, and where they came from. As it happened, both as exhibited to Mr Mackin's affidavit and as tendered by the applicants from WGPSN's discovery, the spreadsheets had the names of all the individuals redacted. I was told that, when they received the documents in this form, the applicants "had to accept it for a variety of reasons" and that counsel for the applicants saw no advantage in testing the proposition, unknown to the court, which presumably sustained the making of these redactions. In the circumstances, I am not prepared to treat the gaps in the evidence as something which might normally have been expected to be part of WGPSN's factual case. 70 I am not satisfied that any of the casual riggers/scaffolders employed by WGPSN on the shutdown in January 2014 were sourced from outside the casual pool. Going only by the numbers, it is well within the possibilities that all such labour was sourced from within the pool, and the applicants, whose evidentiary case it is, have not done enough to warrant a finding on the probabilities that it was otherwise. 71 This has the result that I must consider Mr Lee's notional claim to employment on the shutdown as one which involves the proposition that he would have been employed in preference to someone who was in the casual pool and who had, as the evidence shows, all, or at least the great bulk of, the required MRCs. Indeed, that was the premise upon which the final submissions for the applicants proceeded: they sought a finding that the cost of training a new employee to the point of having all of the required MRCs was about $2,000 only, and that the court should regard that as a figure of little significance in the context of the scale of WGPSN's operations and the annual wages cost of employing a rigger/scaffolder at Longford. 72 The way that the applicants' estimate of $2,000 came about involved, I would have to say, drawing together some otherwise unconnected aspects of the evidence. The starting point was Mr Mackin's evidence-in-chief: There is also considerable expense associated with obtaining MRCs. All up, it costs WGPSN approximately $10,000 just to ensure that an employee has completed the mandatory qualifications and pre-employment checks prior to starting on an Esso site. Under cross-examination, Mr Mackin was challenged on this estimate. In his affidavit, he had said that there were 18 MRCs required for onshore work, and stated the time occupied in providing the training for each – varying from a low of one hour in some cases to a high of two days in others. Assuming that a normal working day was of 7.2 hours' duration, counsel calculated that, in total, this training would occupy 72 hours, including the one-day induction. Using an assumed hourly pay rate of $60 (which Mr Mackin appeared content to accept but which was never explained to the court), counsel calculated that the very approximate cost to WGPSN of equipping a rigger/scaffolder with all the required MRCs was somewhere in the region $4,000 - $4,500, not the $10,000 stated in Mr Mackin's affidavit. 73 That was as far as counsel took the matter with Mr Mackin. He turned next to the evidence of Steven Byrne, WGPSN's Regional Manager, Construction Asia Pacific. At the time of the events which have become relevant in the present case, he was the Construction Manager of the Kipper Tuna Turrum Phase 2 project, in which role he was responsible for the engagement of all offshore labour associated with that project. In his affidavit, Mr Byrne said: It costs WGPSN/[Esso] approximately $15,000 to have an employee complete the necessary offshore MRCs. This cost is shared approximately 50/50. Given the additional cost of employing such a candidate there is an incentive to employ a candidate who has their MRCs in preference to one who does not. Under cross-examination, Mr Byrne that the 50/50 split was part of WGPSN's contract with Esso, under which WGPSN agreed to do some training at its own cost, while what he called "as required training" would be paid for by the client, Esso. He said: So, the MRC part of it is part of our contract rates. The "as required" is then charged … back to the client. So it's no cost to the company. Overall, agreeing with counsel, Mr Byrne said that WGPSN ended up paying about half the cost of training. 74 Based on that evidence, counsel for the applicants moved to the final stage in his argument, which was that, in truth, it would cost WGPSN only a little over $2,000 to provide the training necessary to equip a new casual employee, such as Mr Lee, with the required MRCs. 75 When this construct of things was put to Mr Mackin under cross-examination, he rejected it. He was not, I would have to say, given the opportunity to lay out the details of his objection fully in his own words, but, so far as I could understand the matter, he desired to make the following points. First, as a practical matter, all the required training sessions could not be arranged end-to-end without interruption. The idea that training would occupy a single, discrete, period of 72 hours was, therefore, artificial. Secondly, under the relevant industrial agreement by which WGPSN was bound, an employee who was occupied in any training, of whatever duration, was required to be paid for a minimum of eight hours. Although the agreement also provided that such an employee was "expected to return to the worksite to complete the day's work unless prior agreement is received from the employer", this would be problematic in the case of someone who, by definition, did not have the required MRCs. Thirdly – and this is something upon which Mr Mackin was quite emphatic – Esso did not contribute one-half of the cost of the normal training required for employees to obtain their MRCs. Esso paid only for "as required" training, of which account had not been taken in the time and cost figures being presented to the court. As is apparent from what I have set out above, that was also the gist of Mr Byrne's evidence. 76 Additionally, under re-examination, Mr Mackin said that a number of the training sessions for MRCs were run by a training company called "ERGT", with whom training sessions had to be booked: "it isn't an ongoing block of training for a particular individual or people. It is stretched out over possibly two to even three weeks before you can get all of those MRC training packages through the provider." Although the matter was not exposed in the evidence, it would seem that the fees paid to this training provider would be another expense of which account was not taken in the calculations made by counsel for the applicants. 77 Under cross-examination, Mr Mackin refused to budge from his estimate of about $10,000. While that estimate was never presented to the court as something done with precision, I do not regard it as having been materially undermined by the applicants' attack as outlined above. It is sufficient for present purposes for the court to find, as I do, that the need to train a new employee to the point of having all the necessary MRCs involves a financial investment of substance. It is not to be trivialised as counsel for the applicants sought to do. 78 Absent any unlawful element in his decision not to employ Mr Lee at Longford, for Mr Mackin to have decided the matter otherwise than he did would have been, in my view, highly unlikely. To have taken on Mr Lee, in preference to someone in the casual pool, only to be required to meet the cost of training him to the point of having all the required MRCs is a course, I would find, that WGPSN would have been most unlikely to follow. 79 For those reasons, Mr Lee's claim for compensation must be rejected. 80 There remains the matter of the penalty to be imposed on WGPSN for its contravention of s 346. By the combination of item 11 in the table to s 539(2) of the FW Act, s 546(2)(b) of that Act and s 4AA(1) of the Crimes Act 1914 (Cth), the maximum penalty that may be imposed for such a contravention, committed by a corporation in November 2013, is $51,000. 81 Accepting that any breach of s 346 is a serious matter, yet, if there be a spectrum of seriousness in such matters, WGPSN's contravention lay, in my view, somewhat towards the less serious end of it. Mr Mackin was not himself set against employing someone who had been an organiser for the Union. But, as I have explained, he did have strong reservations about the way that Mr Lee's case for employment was put forward; and, of course, he made an assumption about the view which Esso would take on the matter. As I have found, Mr Lee himself did not suffer material disadvantage as a result of the contravention. 82 WGPSN is a substantial company with, as it appears from the evidence, a dedicated human resources section, or department, possibly, from what appears from the evidence of Kate Beattie, by way of a subsidiary or related company. It is to be expected that a company of this size and sophistication would have ensured that the requirements of the FW Act were well-known to all relevant managers. Further, any penalty imposed should be such as would be regarded as meaningful by a company of WGPSN's size and circumstances. 83 The person who made the decision, Mr Mackin, was the manager responsible for hiring personnel in the relevant area, albeit that the nuts and bolts of hiring casual riggers/scaffolders may in most cases have been handled by others. Having been asked by Mr Sharp to effect an engagement that would on any view have been out of the ordinary, he had no choice but to deal with the matter himself, and did so. The present case could not be placed into the category of those where the contravening conduct was engaged in, for example, by a subordinate functionary acting in breach of company policy. 84 I would not regard the contravention as the result of a momentary lapse on the part of Mr Mackin. His concern about Esso's position arose immediately the matter was mentioned by Mr Sharp in the first conversation, and was sustained through subsequent conversations, even to the point of him refusing to believe Mr Sharp's report that Mr Vickers would leave matters of the employment of personnel to WGPSN. 85 There is no suggestion that WGPSN has ever previously been found to have contravened the FW Act or its predecessor. 86 In all the circumstances, I consider that a penalty of $17,500 should be imposed in respect of WGPSN's contravention of s 346 of the FW Act. 87 The penalty should be paid to the Union: Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 24 June 2016