FEDERAL COURT OF AUSTRALIA Chevron Australia Pty Ltd v The Maritime Union of Australia (No 2) [2016] FCA 768 File number: WAD 145 of 2012 Judge: GILMOUR J Date of judgment: 30 June 2016 Catchwords: INDUSTRIAL LAW – declaration that the respondent engaged in unprotected industrial action in contravention of section 417 of the Fair Work Act 2009 (Cth) – the principles regarding the Court's power to make declarations under section 21 of the Federal Court Act 1976 (Cth) – declarations made in reliance upon a statement of agreed facts as evidence in support of the proposed declarations Legislation: Corporations Act 2001 (Cth) Evidence Act 1995 (Cth) s 191 Fair Work (Registered Organisations) Act 2009 (Cth) s 27 Fair Work Act 2009 (Cth) ss 19(1)(a)-(c), 417, 421 Federal Court Act 1976 (Cth) s 21 Cases cited: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513 Ainsworth v Criminal Justice Commissioner (1992) 175 CLR 564 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Hadgkiss v Aldin (No 2) [2007] 169 IR 76 Secretary, Department of Health Ageing v Pegasa Australia Pty Ltd [2008] FCA 1545 Tobacco Institute of Australia Ltd v Australian Consumer Organisations Inc (No 2) (1993) 41 FCR 89 Date of hearing: 18 April 2016 Registry: Western Australia Division: Fair Work Division National Practice Area: Employment and Industrial Relations Number of paragraphs: 121 Counsel for the Applicant: Mr F Parry QC and Mr R Dalton QC Solicitor for the Applicant: Herbert Smith Freehills Counsel for the Respondent: Mr H Borenstein QC and Mr P Rozen Solicitor for the Respondent: WG McNally Jones Staff ORDERS WAD 145 of 2012 BETWEEN: CHEVRON AUSTRALIA PTY LTD Applicant AND: THE MARITIME UNION OF AUSTRALIA Respondent JUDGE: GILMOUR J DATE OF ORDER: 18 aPRIL 2016 THE COURT DECLARES THAT: 1. In contravention of section 417 of the Fair Work Act 2009 (Cth) (FW Act), during the nominal period of operation of the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015 (Enterprise Agreement), the first respondent organised employees of Patrick Projects Pty Ltd (Patrick) who were covered by the Enterprise Agreement, being the second to sixteenth respondents, to engage in unprotected industrial action on day shift on 28 June 2012 in the form of: (a) from around 7 am until 11 am, delays and restrictions on the performance of their allocated work on the loading operations for the vessel known as the RollDock Sun; (b) from around 11 am, a refusal or failure to perform their allocated work on the RollDock Sun loading operations. 2. In contravention of section 417 of the FW Act, during the nominal period of operation of the Enterprise Agreement, the first respondent organised employees of Patrick who were covered by the Enterprise Agreement, being the second to sixteenth respondents, to engage in unprotected industrial action on day shift on 29 June 2012 in the form of a refusal or failure to perform their allocated work on the RollDock Sun loading operations. THE COURT ORDERS THAT 1. The proceedings against the second to sixteenth respondents be dismissed. 2. The applicant's claim that the first respondent contravened s 421 of the FW Act be dismissed. 3. The applicant's claims that the first respondent contravened s 417 of the FW Act on 30 June 2012 and 1 July 2012 be dismissed. 4. On or before 4 pm Friday 30 September 2016, the applicant is to file and serve: (a) particulars of the loss it claims that it suffered because of the contraventions set out in orders 1 and 2 above; (b) particulars of the compensation it claims in respect of the loss referred to in (a); and (c) any affidavits (including any expert evidence) upon which it intends to rely in relation to penalties and compensation. 5. On or before 4 pm Monday 17 October 2016, the first respondent is to serve on the applicant any request for documents (not already provided by the applicant in its affidavits or otherwise) in the form of a list of proposed categories. 6. On or before 4 pm Monday 31 October 2016, the applicant is to serve on the first respondent a response to the first respondent's list of proposed categories (if any). 7. On or before 4 pm Friday 11 November 2016, the applicant is to provide discovery of documents within the resolved categories (if any). 8. On or before 4 pm Friday 18 November 2016, the applicant is to make available for inspection any documents discovered in accordance with order 9. 9. On or before 4 pm Friday 3 February 2017, the first respondent is to file and serve any affidavits (including any expert evidence) in response. 10. No later than 35 days before the first day of the trial, the applicant serve on the first respondent and file a list of objections to the affidavits filed by the first respondent;. 11. No later than 35 days before the first day of the trial, the first respondent serve on the applicant and file a list of objections to the affidavits filed by the applicant. 12. No later than 28 days before the first day of the trial, Counsel for the respective parties confer in an endeavour to resolve the objections. 13. No later than 21 days before the first day of the trial, each party file and serve a 3 column table of its objections to the affidavits of the opposing party identifying: (a) the particular part of the affidavit to which objection is taken; (b) the basis of the objection; and (c) the response of the opposing party to each objection, including any concessions or qualifications. 14. By no later than 3 March 2017, the parties' experts shall meet in private conference and prepare for the Court a joint report: (a) identifying each of the matters on which they agree; (b) identifying each of the matters on which they do not agree; and (c) providing reasons outlining the basis on which they are unable to agree on any matter. 15. By 17 March 2017, the parties file the experts' joint report. 16. The evidence of the experts at trial be heard after the conclusion of the non-expert evidence of both parties. 17. Fourteen days before the hearing, the applicant is to file and serve an outline of submissions and a minute of proposed final orders. 18. Seven days before the hearing, the first respondent is to file and serve an outline of submissions and a minute of proposed final orders. 19. The hearing in relation to final orders is to be fixed not before Monday 3 April 2017 with an estimate of 4 days. 20. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GILMOUR J: 1 The parties to this proceeding resolved the issues of liability by proposing certain declarations and orders. I made those orders and declarations on 18 April 2016. The declarations concern contraventions by the first respondent, the Maritime Union of Australia (MUA), of s 417 of the Fair Work Act 2009 (Cth) (FW Act) in that during the nominal period of operation of the Patrick Project Pty Ltd AMG Cargo Handling Agreement 2012-2015 (Enterprise Agreement), the MUA organised employees of Patrick Projects Pty Ltd (Patrick), who were covered by the Enterprise Agreement, namely the second to sixteenth respondents, to engage in unprotected industrial action on two separate occasions: the first on 28 June 2012 and the second on 29 June 2012. One form of the action on 28 June was to delay and restrict performance of their allocated work on loading operations for the vessel "RollDock Sun". The action on that day, and again on 29 June 2012, also involved a refusal or failure to perform their allocated work on the RollDock Sun loading operations. 2 I made the declarations and orders sought by the parties for the reasons which follow. 3 A Statement of Agreed Facts (SOAF) was admitted into evidence. The SOAF was made pursuant to section 191 of the Evidence Act 1995 (Cth) and the admissions made in it were made only for the purposes of this proceeding. I have set out below the SOAF but without the relevant attachments. The parties 4 The applicant (Chevron) is, and at all material times was: (a) a company incorporated in Australia and registered as a proprietary company limited by shares under the Corporations Act 2001 (Cth); and (b) the operator of, and otherwise involved in, the construction of a Liquefied Natural Gas production facility on Barrow Island and related facilities (Gorgon Project). 5 The first respondent (the MUA) is, and at all material times was: (a) a registered organisation of employees under the Fair Work (Registered Organisations) Act 2009 (Cth) and, by section 27 of that Act, thereby incorporated and capable of being sued in its registered name; and (b) entitled under its rules to represent the industrial interests of the employees of Patrick engaged to perform maritime cargo handling functions, including the individual respondents. 6 Each of the second to sixteenth respondents (the individual respondents) at all material times was: (a) a member of the MUA; and (b) employed by Patrick to undertake maritime cargo handling work on the Gorgon Project. The Enterprise Agreement 7 On 27 April 2012, Patrick and the MUA made a greenfields enterprise agreement under Part 2-4 of the FW Act titled the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015. 8 On 27 April 2012, Fair Work Australia approved the Enterprise Agreement. 9 The Enterprise Agreement: (a) commenced operation seven days after 27 April 2012; (b) had a nominal expiry date of 30 June 2015; and (c) covered Patrick employees engaged to perform maritime cargo handling functions as defined by the Enterprise Agreement, including the individual respondents. The MUA officials and other relevant persons and matters 10 During the period of 1 June 2012 to 1 July 2012 (inclusive): (a) Padraig (Paddy) Crumlin was a National Secretary of the MUA; (b) Warren Smith was an Assistant National Secretary of the MUA; (c) Michael (Mick) Doleman was a Deputy National Secretary of the MUA; (d) Ian Bray was an Assistant National Secretary of the MUA; (e) Chris Cain was the WA Branch Secretary of the MUA; (f) Will Tracey was a Branch Assistant Secretary of the Western Australian Branch of the MUA; (g) Doug Heath was employed by the MUA as an organiser; (h) Rod Pickette was a Policy Executive Officer for the MUA; (i) Wade Eaton was a member of the MUA; (j) Michael Canning was a member and delegate of the MUA; (k) Tamsin Lloyd was an officer, employee or agent of the MUA; and (l) Linda Morich was an Occupational Health and Safety Officer for the MUA. 11 The conduct described below of the officers, employees and delegates of the MUA was conduct engaged in their capacity as such and within the scope of their actual or apparent authority as such. Accordingly, for all relevant purposes, their conduct was the conduct of the MUA. 12 The MUA had email accounts for its officials and delegates, using the domain "mua.org.au". 13 The MUA used the following email group distribution lists, which were comprised of the following addressees: (a) "National Officials": (1) Padraig (Paddy) Crumlin; (2) Michael (Mick) Doleman; (3) Warren Smith; (4) Ian Bray; (5) Chris Cain; (6) Paul McAleer; (7) Paul Keating; (8) Glen Williams; (9) Dennis Outram; (10) Garry Keane; (11) Scott Carter; (12) Michael Carr; (13) Trevor Munday; (14) Kevin Bracken; (15) David Schleibs; (16) Jason Campbell; (17) Ian Hill; (18) Jamie Newlyn; (19) Clem Clothier; (20) Adrian Evans; and (21) Andy Burford. (b) "National Counsellors" (sic) and "National Councillors" (sic): (1) Padraig (Paddy) Crumlin; (2) Michael (Mick) Doleman; (3) Warren Smith; (4) Ian Bray; (5) Chris Cain; (6) Paul McAleer; (7) Paul Keating; (8) Glen Williams; (9) Dennis Outram; (10) Garry Keane; (11) Scott Carter; (12) Michael Carr; (13) Trevor Munday; (14) Kevin Bracken; (15) David Schleibs; (16) Jason Campbell; (17) Ian Hill; (18) Jamie Newlyn; (19) Clem Clothier; (20) Adrian Evans; and (21) Andy Burford. (c) "WA Branch Executive": (1) Chris Cain; (2) Will Tracey; (3) Adrian Evans; (4) Doug Heath; (5) Keith McCorriston; (6) Linda Morich; (7) Danny Cain; (8) Matthew Elliot; (9) Mark Brien; (10) Daniel Gerrard; (11) Peter Quinn; (12) Arnold Lee; and (13) Cherie McNeill. The Gorgon Project 14 The Gorgon Project involves the development of the Gorgon and Jansz-lo gas fields, between 130 and 220 kilometres off the northwest coast of Western Australia. 15 It includes the construction of a 15.6 million tonne per annum liquefied natural gas (LNG) plant on Barrow Island (LNG Plant) and a domestic gas plant with the capacity to supply 300 terajoules of gas per day to Western Australia. The first phase of development of the Gorgon Project is expected to cost approximately AUD55 billion, with first production of gas expected in 2016. 16 Barrow Island is approximately 130 kilometres off the coast of Western Australia. The majority of plant, equipment and materials required to construct the Gorgon Project had to be transported to Barrow Island by sea. The efficient loading of construction materials onto sea transport vessels for delivery to Barrow Island, and the labour productivity in performing that work, was a critical element to Chevron maintaining its construction schedule for the Gorgon Project. The Henderson AMC 17 All "out of gauge" (very heavy) freight which needed to be delivered to Barrow Island had to be loaded from the Australian Marine Complex at Henderson, Western Australia (AMC). Chevron contracted with Agility Project Logistics Pty Ltd (Agility) to operate the supply base at the AMC. 18 From April 2012, Agility subcontracted the stevedoring work at the AMC to Patrick. Patrick and its employees then carried out that work. The previous stevedoring provider was Offshore Marine Services Alliance Pty Ltd (OMSA), whose employees transferred across to Patrick at the time of the new subcontract. 19 There were two methods of loading vessels at the AMC: (a) roll on, roll off (RORO) - rolling freight from the quay onto the vessel via an adjustable ramp at the stern of the vessel; and (b) lift on, lift off (LOLO) - lifting freight from the wharf onto the vessel using a crane. 20 The wharf's tower crane was situated at berth 5, so LOLO of heavy freight could be undertaken there. If the vessel was docked at berth 5 with its stern at the quay, both LOLO and RORO methods could be employed without having to move the vessel. This was a standard configuration to allow flexibility for loading the vessels with the out-of-gauge freight. The RollDock Sun 21 On 22 June 2012, the RollDock Sun (RDS), a specialised cargo vessel operating with a foreign crew under a Continuing Voyage Permit (CVP), arrived at the AMC. Chevron had hired the RDS to ship "out-of-gauge" units of pre-cast concrete to Barrow Island for the large scale civil construction works then underway on the Gorgon Project. Patrick employed the stevedores who were to carry out this loading operation. 22 Chevron had originally chartered the RDS to transport freight to Barrow Island from international locations. However, the transport of this international freight was deferred. To assist in reducing the backlog of freight at the AMC and deliver some critical elements for the Gorgon Project, Chevron chartered the RDS temporarily to perform services on the domestic route from the AMC to Barrow Island. 23 The RDS was a specialised vessel equipped to perform heavy lifting, with adjustable ramps at its stern for RORO operations. It was quarantine ready and immediately available for use on the Gorgon Project. 24 The RDS was similar to two vessels that had for a period been serviced by Patrick and, before that, OMSA, at the AMC: Combi Dock I and Combi Dock III. Both of these vessels are virtually identical to each other. The Combi Dock I and Combi Dock III are specifically designed to transport "out-of-gauge" items of cargo. They have cranes that form part of their superstructures (to assist with LOLO operations) and adjustable rear ramps (for RORO operations). 25 On Friday 22 June 2012, the RDS arrived at the AMC, available for loading operations to commence as scheduled on Monday 25 June. It was moored at berth 5. This wharf's tower crane was situated at berth 5, so the RDS could be loaded by LOLO, as well as RORO, depending on the particular items of cargo to be loaded. 26 Under normal circumstances, the loading of the RDS would take approximately 4 to 5 days. Chevron had estimated that the RDS would depart from the AMC on Thursday 28 June 2012, based on 48 lifts and loading between 310 to 322 TEUs (20 ft equivalent units). 27 On 7 July 2012 the RDS left for Barrow Island little more than half-loaded with around 178 TEUs. 28 As set out below, the loading operations on the RDS were delayed and disrupted by industrial action engaged in by the individual respondents and organised by the MUA as part of the MUA's industrial campaign against Chevron. The MUA's industrial campaign against Chevron 29 From at least April 2012, the MUA had run a campaign against Chevron regarding the use of foreign labour on the Gorgon Project. In particular: (a) on or about 14 April 2012, the MUA organised an aeroplane to tow a banner bearing the word (in red) "CHEVRON" followed by the words (in black) "MUA DEMANDS AUSSIE JOBS NOW" above Domain Stadium, Subiaco, at the Australian Football League round 3 game between Fremantle and Brisbane; (b) on 16 May 2012, at the 2012 Australian Council of Trade Unions Congress, a motion was moved and seconded by Chris Cain and Paddy Crumlin which stated (among other things): "The ACTU recognises that multi-national companies like Chevron and its contractors are exploiting loopholes in Australia's Migration Act - loopholes which mean that Australia's offshore resources projects are often not classified as being in Australia's territory. Because of this, companies such as Chevron as bringing in foreign labour to do work that could and should be done by Australian workers. In addition, they are contributing little or no training to Australians in these sectors"; (c) in May and June 2012, the MUA posted a number of articles on its website (http://www.mua.org.au) expressing opposition to the use of foreign labour; (d) on 26 June 2012, the MUA organised rallies at the Brisbane, Sydney, Melbourne, Adelaide and Perth offices of DB Schenker, the company who chartered the RDS to Chevron, to protest about the use of foreign labour on the RDS on the Gorgon Project; (e) on 4 July 2012, the MUA organised a rally at Parliament House, Western Australia, to protest about the use of foreign labour in Australia, including on the RDS on the Gorgon Project. The MUA's response to the impending arrival of the RDS at the AMC 30 On May 2012, the Department of Infrastructure and Transport (DIT) sent to the MUA an email as follows: "Good morning, Please be advised that the Department has received an application for a permit for the vessel Rolldock Sun [IMO 9393981) to carry; Port Henderson to Barrow Island Term. 16/06/2012 Description Cargo Type Cargo MT TEU BB Quantity PAX Loading Discharge Port Description Quantity Quantity Quantity Port civil and General General Cargo 25000 0 0 0 Henderson Barrow Island underground Cargo Term. materials and equipment 31 On 22 May 2012, the DIT issued a CVP for the RDS, permitting that vessel to carry general cargo from the AMC to Barrow Island for the period of 15 June 2012 to 14 September 2012, operating with a foreign crew. 32 In late May and early June 2012, the MUA made the following inquiries of the DIT and the Office of the Minister for Infrastructure and Transport about the RDS: (a) on 31 May 2012, Rod Pickette spoke to Philippa Power (DIT) and made inquiries on behalf of the MUA about the RDS, including whether that vessel had been issued with a CVP; and (b) on 1 June 2012, Rod Pickette sent an email to Pauline Sullivan (DIT) and copied to Karen Gosling and Craig Carmody (of the Office of the Hon. Anthony Albanese, the then Minister for Infrastructure and Transport), as follows: "[I]n relation to CVP application No 10878 for the Rolldock Sun of 16 May 2012, I would request that the Department urgently advise as follows: 1. Whether a CVP has been issued, and if so, on what date was it issued". 33 On and around 4 June 2012, Warren Smith made inquiries of DB Schenker (the charterer of the RDS) and Wilhelmsen (the RDS shipping agent) about the proposed arrangements for the RDS on the Gorgon Project. 34 On 8 June 2012, Warren Smith sent an email to Paddy Crumlin, Mick Doleman, Ian Bray, Chris Cain, Rod Pickette and others and copied to Tamsin Lloyd, the WA Branch Executive and others relevantly as follows: "Comrades, … For further consideration in light of the Chevron campaign. Consideration may be given that due to this vessel being chartered and directed to undertake this work by Chevron that it may present an opportunity that could link in with the Chevron campaign. Whether this took the form of direct action or meetings to further the broader arguments with Chevron is up to the campaign team looking after the Chevron campaign. Maybe the call could be for an MUA crew to be engaged. There appear to be no legal mechanisms under the current or in fact future shipping legislation to prevent this situation occurring where there is no Australian licenced vessel and where the vessel is engaged in intra-state trade. … As there is considerable cross-over in this area I put the above for your consideration and comment with regard to any further action that may impact upon the Chevron campaign and offshore operations". 35 In this email, the reference to "this vessel" was a reference to the RDS and the references to "Chevron campaign" were references to the MUA's industrial campaign against Chevron's use of foreign labour on and in connection with the Gorgon Project. 36 On 10 June 2012, the RDS docked at Kwinana, Western Australia. 37 On 11 June 2012, Keith McCorriston (a member of the International Transport Workers Federation (ITF) and MUA member) sent an email regarding the RDS to Warren Smith and copied to Paddy Crumlin, Mick Doleman, Ian Bray, Chris Cain, Rod Pickette, Tamsin Lloyd, the WA Branch Executive and others, in the following terms: "Warren, The Rolldock Sun is now alongside at another berth just south of AMC facility. She may go out to anchor due to the weather and return in the morning. She is scheduled to leave this berth on the 14th June. I intend to visit this vessel tomorrow pending another problem with a FOC in Bunbury that needs my urgent attention as well. Bunbury port is closed due to the weather. Give me call when your free. 0422014861". 38 On 11 June 2012, Chris Cain sent an email reply to Keith McCorriston and copied to Paddy Crumlin, Mick Doleman, Ian Bray, Rod Pickette, Tamsin Lloyd, the WA Branch Executive and others in terms that included the following: "Keith, this vessel is real important to are Chevron Campaign,and we need to jack this ship up. We cannot allow this ship to have a free run up and down the coast with Foreign Seafarers doing Australian jobs mate,also can you CC all the branch officials into all correspondence re this vessel regards". 39 On 11 June 2012, Warren Smith sent an email to Paddy Crumlin, Mick Doleman, Ian Bray, Rod Pickette, Tamsin Lloyd, the WA Branch Executive and others, in terms that included the following: "Further to the email from Keith, Adrian and Chris, the DB Schenker manager Marko Cikara sent the email below last night. He has basically confirmed that the vessel does not have an ITF agreement. On sea-web the vessel is indicated as being a Singapore flag from July 2011 when it switched from a Dutch flag. They are now indicating that the vessel is once again registered in the Netherlands but have provided no proof and the sea-web records indicate otherwise. The company previously indicated that they are paying the crew OOG rates at 107% in line with the wages on Combi I and III. This clearly wouldn't apply once they leave the Australian coast and the all important question of the dockers clause in the ITF agreement is vital. Adrian has already indicated that this is an attempt to get the crew to do the wharfies work in Fremantle. I'm inclined not to write back and request that they get an ITF agreement and wait for the vessel to be inspected as this approach is likely to prolong the disruption to the vessel." 40 On 14 June 2012, Chris Macainsh (Patrick OHS Advisor) and Darren Shelley (Patrick manager) went on board the RDS while it was berthed at Kwinana Bulk Terminal Berth 3. 41 On 15 June 2012, Chris Macainsh and Darren Shelley revisited the RDS at this berth with a delegation which included Mick Canning in order to conduct a safety audit of the vessel. 42 On 15 June 2012, Chris Cain sent an email to Warren Smith and others and copied to Paddy Crumlin, the WA Branch Executive, Mick Doleman and others, in terms that included: "Gents, I have a meeting with Schenker in the morning. They are not happy with Chevron trying this on, and are in meetings with them as we speak. Regards". 43 On 16 June 2012, having met with DB Schenker, Chris Cain sent an email to Warren Smith and copied to Paddy Crumlin, the National Councillors and the WA Branch Executive, relevantly as follows: "Gents, I have just been given the heads up, of a serious attack of the rights of Australian Seafarers to work on the Coastal trade.Chevron have brought in a vessel manned with Dutch Officers and philipino crew,to carry construction cargo up and down are coastline, from Kwinana (Henderson) to Barrow Island. The vessel is MV Roll Dock Sun,it is carrying 700kilos concrete blocks,of which could be carried on the 2 Australian Manned Combi Dock vessels. The bizarre thing about this dispute is that these concrete blocks can easily go on the Australian manned vessels , as they are doing the same job ,but are only 20% full,and there is no need for this vessel to be here.The Government has given Schenker,or Roll Dock owners a CVP for 3 months. Why? Fucked if I know! But we have over 200 skilled ,and trained Australian Seafarers out of work at the moment.This is were Gillard needs to act,we have are jobs board ready!they are now saying that they are going to pay thePhilipinos and Dutch Officers the Australian rates ,so the issue is again about keeping Australians off there projects,whilst Australians are available.Paddy , we need an urgent hook up over the weekend re this, they,CHEVRON, are also applying for more CVPs next week as they have 9 vessels waiting to come down here and do the same thing, carrycargo backwards and forwards to Barrow.Rod, the company who is acting for Chevron is Fairstar,and the first vessel is Fiorge,they are applying for the permits next week. We need to stop this.I am not sure of the spelling but we can prove that there are Australian vessels that can do that job.My view is we need to have this blu down here, were we can really focus in on the 200/300 trained Australians that are ready to man up the vessels, who are out of work.Also we would need to brief the Ministers concerned, and Gillard, also Oliver and the other blue collar Unions.Hope this helps but were ready for the stink here, one that we all could do without, but when you have ideologs like Chevron,doing this shit,we have to fight ,and given them a good Fucken pasting." 44 On 17 June 2012, Paddy Crumlin, sent an email to Mick Doleman and copied to Rod Pickette, Ian Bray and others, describing Chevron's proposed use of the RDS as "an attempt to bring foreign labour into an offshore project". Mr Crumlin set out various matters for the MUA to pursue and stated: "There may have to be protests organised when the ship comes alongside and that will require legal advice as well … The first cargo is Thursday now Chris tells me. Can we tighten things up a bit please." In this email, the reference to "Chris" was a reference to Chris Cain. 45 On 17 June 2012: (a) Paddy Crumlin sent an email to Warren Smith and copied to Rod Pickette, Ian Bray and others (Attachment 17 [MUA.005.001.0612_001]) in the following terms: "It's not a CVP is it, it's a state based permit. What does Albo's office say? Is there anyone you forgot to copy in?" (b) Warren Smith replied to Paddy Crumlin at 12.42 pm with the following email: "It's a CVP. Rod is working through albos office. I kept copying Wa Exec address on chris's request. Ship not in until Tuesday". In this email: (1) "albos office" was a reference to the Office of Minister Albanese; (2) "CVP" was a reference to a Continuing Voyage Permit for the RDS; (3) "Ship" was a reference to the RDS; (4) "Rod" was a reference to Rod Pickette; and (5) "Chris" was a reference to Chris Cain. 46 On 17 June 2012, Chris Macainsh produced a report based on the inspections of the RDS which occurred at Kwinana on 14 and 15 June, and his subsequent discussions with Mick Canning and others (Safety Report). The Safety Report listed each of the issues which were identified and raised in relation to the RDS as a result of the inspections. Mick Canning agreed with the contents of the Safety Report. 47 On 18 June 2012, Warren Smith sent an email to Paddy Crumlin, Mick Doleman, Ian Bray, Rod Pickette and others relevantly as follows: "Comrades, A summary in each area below: Legal - Meeting with McNally and Adam today. Discussing offensive and defensive legal strategies. Adam will be able to elaborate more fully after meeting McNally. Industrial - It appears a community picket may arise. According to Chris's advice there are multiple vessels coming down to be engaged in this area of work. Rod has written to the DIT requesting rejection of a CVP if they apply. Penny reports another vessel from same company (Fairstar) as sitting at Barrow Is for a week. What they are waiting for is curious and unknown at this stage. Media - Initial leaflet drafted for ALP conf in WA. Have discussed with Darrin about creation of media speaking lines for whoever speaks and a press release for wide circulation. He is working on that. Political - Discussed with Rod need to talk/ lobby DIT, DEEWR and Ferguson's office about what is an attack on the offshore. Rod has just written requesting action around non-issuance of CVPs and revocation of CVP issued. International - Waiting to discuss with Mick the possible actions arising out of the OTFG which is meeting now. - We need to call on Nautilus to walk away from the ITF agreement they signed a week after we engaged in discussions with Rolldock. In essence the Nautilus signing contravenes the ITF's offshore policy as indicated in the Mexico policy. This may give us an in to act as well. Mapping of Schenker needs to occur and I will discuss this with Mick when I get in touch with him in just under one hour. Will update as developments occur". In this email: (a) "CVP" was a reference to Continuing Voyage Permit; (b) "DEEWR" was a reference to the Department of Education, Employment and Workplace Relations; (c) "revocation of CVP issued" was a reference to the revocation of the CVP issued to the RDS; (d) "Ferguson" was a reference to the Hon. Martin Ferguson AM (the then Minister for Resources); (e) "Mick" was a reference to Michael Doleman; (f) "OTFG" was a reference to the ITF Offshore Task Force Group; (g) "Nautilus" was a reference to Nautilus International, an international employee association representing seafarers and associated workers in the United Kingdom, Switzerland and the Netherlands; and (h) "ITF agreement" was a reference to the ITF agreement for the RDS. 48 On 18 June 2012, Chris Cain sent an email to Rod Pickette and copied to the National Officials, the WA Branch Executive and others referring to the expected arrival of the RDS at the AMC on 21 June 2012 and stated: "… I am also hearing that the Roll Dock Sun, will berth in Henderson on Thursday, that's when the blu will start. I am at the ALP tonight ,and will get an emergency motion up re this vessel. We have a jobs board, with 200 trained and qualified seafarers on it, that are and have paid taxes in this country. They are MUA jobs!!" 49 On 19 June 2012, Keith McCorriston sent an email to Chris Cain and Warren Smith in the following terms: "Chris/Warren, any further developments on this basket case? I checked the WA act and it isn't very clear in terms of reference of the application of the permits. I think we need input on the WA Freight and Logistic council or committee". 50 On 19 June 2012, Warren Smith replied to Keith McCorriston and Chris Cain with the following email: "It's all happening Keith. Various legal,media, industrial and political strategies are in place and look like culminating in a blue nearer the end of the week. Mick has met Nautilus about their bodgy agreement that was signed a week after we raised questions about the vessel". 51 On 19 June 2012, Rod Pickette sent an email to Philippa Power (DIT) and copied to Paddy Crumlin, Warren Smith, Ian Bray, Mick Doleman and others relevantly as follows: "I would appreciate your advice today that the CVP has been withdrawn or will be withdrawn, as I understand the Rolldock Sun is due to load its first cargo in the next couple of days. This matter needs to be resolved quickly if the issues of concern are to amicably settled". 52 On 19 June 2012, Paddy Crumlin sent an email to Rod Pickette and copied to Warren Smith, Chris Cain, Ian Bray, Mick Doleman and others as follows: "I've just spoken to Craig again about why it shouldn't be issued a CVP. He's gone to talk to the Department and will get back to me". In this email: (a) the reference to "Craig" was a reference to Craig Carmody (from Minister Albanese's office); (b) the reference to "why it shouldn't be issued a CVP" was a reference to why the RDS should not be issued a Continuing Voyage Permit; and (c) the reference to the "Department" was a reference to the DIT. 53 On 19 June 2012, Philippa Power (DIT) sent a "reply all" email to Mr Pickette's email in terms that included the following: "Mr Pickette … Re your enquiry regarding the Rolldock Sun I can advise the following: The application for a s 8AA declaration for the Rolldock Sun has been actioned by AMSA. I can also confirm that the Department's normal processes were followed in regard to the permit application i.e. licensed operators were contacted on 16 May to ascertain whether a licensed vessel was available to carry the cargo nominated in the permit application. The Union, (you were an addressee) was advised at the same time. Stakeholders were given until 21 May to respond to the Department. No responses were received and action on the permit was finalised". 54 On 19 June 2012, Paddy Crumlin forwarded the DIT email in the previous paragraph to Craig Carmody and copied to Rod Pickette saying: "See the problem Craig … This is a critical industrial issue Did you speak to Ms Power before she sent this? . I wouldn't have thought so, I rang around that time Thanks for the attention to this Craig. Let me know if I need to talk to the Minister". 55 On 20 June 2012, Chris Cain sent an email to Mick Doleman and copied to Paddy Crumlin, the WA Branch Executive, Ian Bray and others, in relevantly the following terms: "Gents, we have been fucking this vessel about for the last 2 days ,and there is a Pin Notice on the wharf were the vessel is berthing. Once that has run its cause, then we intend to ask for the Asbestos free Certificate, of which they will not have, once that is sorted, we will then make them lower the cranes and check all the certs for lifting e.g. wires ,shackles spreaders. Once that is done we want the crane load charts as per Work safe regs, Once that is done it will be Christmas, then we will look at a community picket. then we will also be fucking around with the ITF crew, and, I am also talking to Schenker, as the vessel is 4 days late now. going OK regards in struggle …". 56 On 21 June 2012, Chris Cain sent an email to Doug Heath and copied to Linda Morich, Will Tracey, Mick Canning, Wade Eaton and others in the following terms: "Roll dock coming in tomorrow after lunch .Schenker just told me, can the delegates ring me in the morning". 57 On 22 June 2012, Rod Pickette sent an email to Mat Tinkler and copied to Sarah Adams (both from the Department of Education, Employment and Workplace Relations) in terms that included the following: "Mat, Sarah I wish to alert you to a possible industrial situation that could escalate over the weekend. The dispute involves a foreign flagged and foreign crewed vessel called the Rolldock Sun, chartered by a company called Schenker witch has a contract with Chevron to provide logistical services to Gorgon LNG offshore construction project. This vessel is a heavy lift vessel that is currently docked, I believe, in Henderson port, and is due to transport construction equipment to Barrow Island, with its first load in the next day or so. Even though it is an intra-State voyage, the operator was granted by AMSA a s8AA declaration under the Navigation Act (the Act normally only covers international and inter-State voyages) that provides that the Navigation Act applies to the vessel while on intra-State voyages. On the basis that it comes under the Navigation Act by virtue of the declaration, it has been granted a permit (a CVP that applies for 3 months) to engage in the coasting trade, which means that it is not imported under the Customs Act and the crew on board can work indefinitely on the Marine Crew Visa (which on an imported vessel expires after 5 days). While all that is technically legitimate under the Navigation Act, there are already 2 vessels, the Combi I and Combi III, also operated by Schenker for Chevron, that are Australian crewed and apply Australian EBA rates and conditions (under a negotiated agreement). The Roll Dock Sun is only required, as a vessel issued with a permit, to pay Part B of the Seagoing Industry Award, after its second voyage. The Combi I and III are underutilised and we understand could carry cargo destined for the Rolldock Sun. What effectively has happened is that the operators have used the Navigation Act as a means to introduce coastal trading provisions into the offshore oil and gas industry, for which the provisions have never before applied and were not intended to operate (and continue to be expressly excluded from the shipping reform legislation that received Royal Assent yesterday, to commence on 1 July). Paddy has been communicating with Craig Carmody in Minister Albanese's office, and I believe has put the view (a teleconference was planned for this afternoon, but not sure if that has occurred as yet) that Minister Albanese consider using his wider public/national interest options under the Navigation Act to withdraw the permit or indicate that no further permits will be issued to vessels engaged in offshore oil and gas projects. It seems to us that Chevron is using the Rolldock Sun to spearhead a strategy to introduce coastal trading arrangements into the offshore oil and gas industry, engage foreign crewed vessels paying Part B SIA rates in offshore construction, and avoid the normal 457 visa and associated labour relations standards that goes with those - while at the same time punishing the ships that are Australian crewed and pay Australian EBA equivalent rates and conditions. This is red rag to a bull in WA at the present time". 58 On 22 June 2012, at 9.03 pm, Wade Eaton sent an email to numerous of the individual respondents and copied to Chris Cain, Doug Health, Will Tracey, Linda Morich and others, in the following terms: "Hello all, I'm sure you are all aware of the MUA campaign to protect Australian seafarer's jobs from chevron exploitation, so I will keep the details around this issue to a minimum and stick more to the campaign strategy that we at the AMC are going to apply to help win this dispute. The MV Rolldock Sun is a vessel that has been brought onto the Henderson to Barrow Island run to undermine and attack the Australian seafarer's rates and conditions. This vessel today came alongside the Gavier Lifter, with the expectation that we were going to work the vessel tomorrow onwards. Our view is that we must ensure the SAFETY OF ALL MUA MEMBERS WORKING THIS VESSEL AT THE AMC AS A MAJOR PRIORITY. If you as a delegate or safety rep are on the job when Patrick allocate us to work this vessel, we have a number of safety issues that MUST be fixed, rectified or looked into before we can start work. Here are a few such issues that we came up with today. …. Comrades, any other ideas or information should be shared as a priority. In Unity". Later that evening, Chris Cain sent a reply email saying: "Good stuff lads regards". 59 On 22 June 2012, at 7.11 pm, Chris Cain sent an email update to the National Officials and National Councillors in the following terms: "Gents,(sic) they brought the vessel alongside, been there fucking about. They was going to load tonight, but now cancelled all gangs for the weekend, as no crane drivers trained up or voc,d.regards". 60 On 24 June 2012, Warren Smith sent an email to the MUA Branch Officials and the MUA Branch Organisers and copied to the National Officials and others in the following terms: "ATTENTION: MUA BRANCHES Dear Comrades, Currently there is a serious dispute in WA. Chevron, through their charterers, DB Schenker, are engaging in an all-out union busting exercise in the offshore with the vessel the Rolldock Sun. The company are trying to legitimise their anti-union attack on the offshore by claiming that the Rolldock Sun is a coastal trading vessel and are using a CVP to try to legitimise their claim. However, the Rolldock Sun is clearly performing offshore operations for the Gorgon Project, similar to the MUA-crewed Combi Dock I and III. Accordingly, it is vital we send a message to these companies that their anti-union tactics will not be tolerated by MUA members across Australia. Tuesday's monthly meeting presents us with this opportunity to take our voices of opposition to their plan to DB Schenker offices across Australia. I have copied in their office locations below. Your assistance in organising demonstrations and activities on this occasion is appreciated and will send a strong message to the company that we are standing in solidarity with the WA Branch and offshore seafarers". 61 On 24 June 2012, Chris Cain sent another email update to senior MUA officials saying: "Hello Theo, well the foreign vessel has not loaded anything in the last 4 days mate. The Wharfies are all aware of the situation mate, and they are working safely!! We are doing all we can to get this out there to all unions and the community. We will take are protest to Schenker on Tuesday mate. We are trying are best to get the CVP pulled on Monday. Talk soon mate regards in struggle". Patrick allocates the crew to load the RDS 62 On the afternoon of 24 June 2012, Patrick sent allocation text messages to all employees rostered to work the 25 June 2012 day shift. Among the allocations was a team earmarked to perform LOLO operations on the RDS during the 25 June 2012 day shift (25 June RDS Team), which was composed largely of the individual respondents. 63 The 25 June RDS Team was experienced in LOLO operations at the AMC on ships substantially similar to the RDS. Craig Wilkins (the 2nd Respondent), Roger Boldra (the 3rd Respondent), Martin Unsworth (the 4th Respondent), Tony Durmanich (the 8th Respondent), Cameron Brown (the 15th Respondent) and Maksi Vujcic (the 16th Respondent) had each worked at LOLO shifts on one or both of the Combi vessels at the AMC prior to being allocated to the LOLO shift on the RDS. 64 LOLO operations were a standard form of stevedoring work at the AMC. Patrick had in place a detailed work method statement, or WMS, describing the standard work method for completing LOLO operations (the LOLO WMS). The LOLO WMS was one of many work method statements that Patrick employees, including the individual respondents, had been instructed to follow at the AMC. 65 In addition to following the work method statements, all Patrick stevedoring employees (including each individual respondent) were required to complete a basic safety procedure prior to the commencement of work: (a) upon arriving at their work area, teams were required to complete or review (as the case may be) a Job Hazard Analysis (JHA) for their allocated work. (b) once the JHA had been completed, each employee was required to conduct a final five-minute safety check known as a "Step Back 5-by-5"; and (c) once these pre-start steps were completed, stevedores were required to commence operational work. 25 to 27 June 2012 66 On 25 June 2012, the 25 June RDS Team commenced the pre-start processes at around 9 am and had completed the JHA (RDS JHA) by 11.30 am. 67 By 12.30 pm, operational work had not commenced. Doug Heath and Wade Eaton initiated a full safety inspection of the RDS. Additionally, a full safety audit of the RDS had already been undertaken by representatives of DB Schenker, Patrick and the MUA on 15 June 2012 when the RDS docked at Kwinana as set out at paragraphs 36 - 37 above. Further safety issues were identified by this safety inspection. 68 After conferring with KJV, Patrick management decided by about 3.30 pm on 25 June 2012 to implement a 'stop for safety' over 26 and 27 June 2012. No work was to be performed by Patrick stevedores while this occurred. It did so for three reasons. First, it hoped that whatever the reason for the 'safety' issues being raised could be identified and resolved without any significant disputation. Second, it could not completely discount the possibility that one or more of the issues were genuine. Third, it sensed that a serious industrial situation was developing and there was a need to release some pressure. 69 By the afternoon of 25 June 2012, the MUA had raised a number of safety issues. Later that day, Wade Eaton sent an email to Damian Burton (Patrick's Business Manager), and copied to Doug Heath, Michael Canning and others as follows: "Hello Damian, As discussed, here are the safety issues associated with the Rolldock Sun and its surrounding work area. (1) The recoil of the mooring line breaking. (2) The monkey faces stamps where not legible? (3) Containers on Port side of vessel are a hazard to the tower crane, when lifting over the top. (4) The in-ability to inspect the ramps. (5) Certs for ramps, load bearing weight of ramps. (6) Ships cranes to be to Australian Standard. (7) Potential head injury hazard just past the gangway. (8) Trip hazard at the access point to the lower hold (fwd access point) (9) Ramp walkways to meet MO32 requirements. (10) Actual height of ship cranes / potential tower crane collision if ship is turned around. (11) Aft emergency egress ladder - No fall arrest - risk of a fall >2m. (12) Tween deck access ladder to lower hold needs a safety rail". 70 On 25 June 2012, Wade Eaton sent an email to numerous people and copied to Chris Cain, Doug Heath, Adrian Evans and Will Tracey as follows: "Comrades ALL MEMBERS ARE STRONGLY URGED TO ATTEND THE MONTHLY STOP WORK MEETING TOMORROW AT THE MUA ROOMS FROM 9AM SHARP. STRAIGHT AFTER MEETING WE WILL BE HEADING DOWN TO DB SHENKERS OFFICES TO PROTEST OVER THE ROLLDOCK SUN. TODAY PATRICK MADE THE DECISION TO NOT ROSTER ANY PATRICK EMPLOYEES TO THE AMC TOMORROW AND INTO THE FUTURE, UNTIL THE SAFETY ISSUES ARE RESOLVED. THE SAFETY COMMITTEE HAS BEEN ROSTERED FOR CRISIS TALKS. EVERY MEMBER SHOULD MAKE EVERY ATTEMPT TO GET ALONG TO THE STOPPY TOMORROW. WE NEED TO KEEP EVERY MEMBER INFORMED AS TO WHERE WE ARE AT WITH THIS DISPUTE, SO MAKE SURE YOU ARE THERE….. IT WOULD BE GREAT IF WE COULD ALSO DO A RING AROUND TO ANY MEMBERS THAT MAY HAVE EMAIL ADDRESS'S OR ARE NEW TO SITE…". 71 On 25 June 2012, Chris Cain sent an email to Doug Heath, Adrian Evans, and others as follows: "Gents anyone not working tomorrow, could they please attend the meeting in the union hall at 9am in the morning regards". 72 On 26 June 2012, Doug Heath sent an email to Chris Cain as follows: "Hi Comrade Cherie has sent a text to all AMC members to turn up. Wade has also emailed them. I would expect about 80-100 from the AMC to front for the Stoppy comrade. In Unity". 73 On 26 June 2012, the MUA held a stop work meeting at the union rooms of Patrick employees at the AMC. 74 On 26 June 2012, at 9.20 am, Tamsin Lloyd sent an email to Warren Smith and Darrin Barnett with the subject line "Chevron/DB Schenker Resolution" in the following terms: "Hi Warren Understand you wanted a resolution for stoppys. Please see below. I can circulate if you are happy with this. Tamsin RESOLUTION: This meeting condemns Chevron and shipping contractor DB Shenker of attempting to undermine Australian seafarers rather than building local communities through solid jobs in the resources sector. Through DB Schenker, Chevron has engaged the Rolldock Sun - a ship crewed by exploited, third-world labour - to assist its operations within the Gorgon Oil and GasProject in WA when the work could be done by Australian-crewed vessels. This is a deliberate act by Chevron and its contractors to undermine union operations and conditions in the offshore oil and gas industry, when Australian ships and crews are available to do the work. Accordingly, this meeting resolves to take action against such practices by Chevron and its contractors, and to campaign for quality, local jobs under union conditions". 75 On 26 June 2012, at around 11 am, the MUA conducted rallies at DB Schenker's offices in Perth, Sydney, Melbourne, Brisbane and Adelaide to protest about the RDS and the use of foreign labour on it. The same day, Chris Cain, referring to the rally at DB Schenker's Perth office, made public comments to the following effect: "The turnout today was fantastic - seafarers and wharfies - the place was jam-packed…". "Chevron are saying that it's not their issue but they can direct Schenker to employ Australians." "There are two Australian vessels here running at 20 per cent capacity, they [sic] should be using them." The same day, Warren Smith said: "It's no surprise that community members are outraged at the use of foreign crewed ships off the West Australian coast while Australian-crewed vessel sit idle…" "The community is fed up with seeing large multinationals such as Chevron exploiting underpaid third world labour, while Australians miss out on the benefits of the resources boom. This is about supporting jobs, communities and families…" "Whether it's Gina Rinehart or Chevron and DB Schenker, working people and their communities need to campaign to spread the benefits of the boom to all…" "There are ships currently at anchor with Australian seafarers on board who are willing and able to do this work…" "Chevron and DB Schenker are simply avoiding their social and industrial responsibilities by acting in this way." 76 On 26 June 2012, the "stop for safety workshop" at the AMC commenced. 77 On 26 June 2012, at 12.37 pm, Doug Heath sent an email to Linda Morich and copied to the WA Branch Executive and Wade Eaton in the following terms: "Hi Linda This is the result of today's safety audit of the work areas in connection with or on the Rolldock Sun. The wharf has been effectively shut down and Patrick have stopped all allocations for the entire AMC site until the issues are sorted. OHS Committee members are on site to discuss the issues (including other outstanding problems) that need resolving prior to commencement of normal work. Got em fucked for now. In Unity". 78 On 26 June 2012, at 8.26 am, Chris Cain forwarded Doug Heath's email to the National Councillors with the following note: "Gents below is what is happening with the Wharfies at the Amc. They have had 6 days of not one piece of cargo loaded. Safety issues everywhere .Not sure how long we can hold off, but going ok. regards". 79 On 26 June 2012, at 3.35 pm, Andrew Gill (Patrick Business Improvement Manager) sent Damian Burton a long list of items captured by the safety session held on that day. 80 On 27 June 2012, the MUA sent an email to its members as follows: "Members Yesterday was a great day for the MUA, where we acted nationally to tell DB Schenker and Chevron that we would not cop them bringing in a foreign vessel to do work that Australian seafarers can. Especially when there are over 200 people on the database who are ready, willing and able to take this work. There were over 400 Members at the Stop Work Meeting yesterday prior to us going to Schenkers WA Office, and I thank them for their commitment to their Union. I also congratulate everyone who took part in the pickets at every one of Schenker's offices around the country, we sent a clear message that we will not back away from our jobs being taken away from us. In one weeks' time (Wednesday, 4th July) we will be holding another action, the Local Workers First Rally where we will be joining with Comrades from other Unions to make our voices heard about this issue of resource companies not employing Australians on the resource mega-projects. We will be demanding that before any company can look to import workers they need to use a mandatory jobs board to give locals the chance at getting a job. We will also be demanding that there be real maritime training, something that the resource companies like to talk about but don't do in any meaningful way. With all of the projects that are proposed or are currently underway there is a chance for us to secure the working future of this country, where we can have people with real skills to fix the skills shortage created by these companies abandoning training years ago. The threats to our jobs are very real, as shown by the current dispute around the Rolldock Sun at the AMC. It is vital that we get out to the LOCAL WORKERS FIRST RALLY ON 4TH JULY to keep the pressure up on the resource companies and the government to ensure that we are able to have a working future in this country. MEET AT THE UNION ROOMS AT 10AM. We will be providing buses to the Rally from here. Bring your partners, family and friends with you as this is an issue that affects us all. WE NEED YOU TO BE THERE. In Struggle, Christy Cain". 81 On 27 June 2012 the safety audit of the AMC in relation to the RDS prepared a "Practical Problem Solving" document that was signed off by Andrew Gill on behalf of Patrick management. The vessel was not moved on 28 June 2012. 82 By around 4 pm on 27 June 2012, Patrick management decided to re-commence operations (including LOLO operations on the RDS) on the morning of 28 June 2012, and sent out SMS texts to the individual respondents confirming that they were each assigned to perform LOLO operations on the RDS the next morning. 83 On 27 June 2012, at 5.48 pm and 6.04 pm, Christopher Niblett (Managing Director, Maritime Training Assessment Group), sent two emails to Chris Cain and copied to Doug Heath, Will Tracey, Linda Morich and others: (a) the first email (Attachment 45 [MUA.005.001.0691]) was in the following terms: "FYI…… Cardinal Rules…..says it all!". (b) the first email attached scanned documents, including: (1) Chevron's "Cardinal Rules" which provided, among other things, that "we do it safely or not at all"; (2) extracts of the Gorgon Project contractor's safe rigging, lifting and slinging procedures, which referred to compliance with Australian Standards and colour coding of rigging gear; and (3) an extract of the Australian Standards for access and egress when working around cranes; and (c) the second email which had the subject line "This is it …" and which attached a scanned copy of a document in which Christopher Niblett or someone else had highlighted the text after the heading "6.2 Working Over Water". 84 On 27 June 2012, at 10.49 pm, Doug Heath sent an email to Adrian Howard and copied to Damian Burton, Chris Cain, Linda Morich, the WA Branch Executive, Paddy Crumlin, Mick Canning, Wade Eaton and others in relevantly the following terms: "As discussed today, and on numerous occasions over the past two months, the MUA has raised concerns about the serious and imminent safety risks posed to members working on the Patrick wharf facilities at the AMC. In mid-April 2012, MUA Safety Representatives issued Patrick with a PIN notice regarding their failure to implement an agreed and accredited Man Overboard Procedure. Patrick have committed themselves to this process, but have failed to follow through with this commitment. The PIN notice expired on 20th May 2012. In discussions with Patrick on Monday 25th June, the Company made a decision not to allocate members on the Project until all outstanding OHS issues were resolved. The MOB Procedures, or lack thereof remains an outstanding issue and our members remain at significant risk if working near water. … I am hoping the parties can work through the issues tomorrow. I will be on site tomorrow morning to investigate the breach in the aforementioned policies, but hope to work through the issues to ensure our members have a safe place of work and all parties work in accordance with the site policies and procedures. In the event we cannot resolve these matters, I will be contacting KJV, Agility and Chevron to investigate the non-compliance with OHS requirements. I hope that we can have a reciprocal approach taken by Patrick to ensure that all parties comply with their lawful obligations to ensure the safety of workers is paramount to short term profits and expediency". 28 June 2012 85 On 28 June 2012, at 6.20 am, Doug Heath sent an email to Mick Crisp as follows: "Hi Mick This is a decent blue and has the potential to escalate with pickets etc. I have told Patrick that it isn't just the Chevron issue that needs sorting - it is Patrick issues. This includes getting our nominations a start on the job". Start of shift on 28 June 2012 86 The 28 June 2012 day shift began at 6 am. Patrick management expected that the pre-shift safety procedures would take no longer than 15 to 30 minutes, given that the RDS JHA had previously been completed on 25 June 2012. 87 At 8.15 am, no operational work had commenced. The individual respondents were sitting around and conducting the pre-start safety procedures very slowly and not as normally performed. 88 By these delays, the individual respondents performed work in a manner different from the way they customarily performed the work, the result of which was a ban, restriction or delay in the performance of the work. This constituted "industrial action" within the meaning of s 19(1)(a) of the FW Act. The performance of work in this manner: (a) was not authorised by Patrick; and (b) was not based on a reasonable concern of the individual respondents about an imminent risk to their health and safety. From 11 am on 28 June 2012 89 At around 11 am, Craig Wilkins (the 2nd respondent) handed Damian Burton a revised version of the RDS JHA that had been completed on 25 June 2012 by the 25 June RDS Team. In the 25 June RDS JHA, the employees had identified 8 job steps and had assessed the hazards, the risk management and the residual risks. Step 4 (getting ready to start loading operations) and step 6 (lifting and loading of cargo) identified that a hazard associated with such activities was "man overboard". The risk management actions were identified (including the man overboard procedures) and the residual risk was identified as "low". The revised JHA sought to add a job step 9 ("in case of man overboard"), identified the risk management as applying the man overboard procedure and rated the residual risk as "high". The JHA was signed off by Damien Burton as representative of Patrick management. 90 Burton disagreed with the inclusion of the lack of a man overboard procedure (MOB Issue) on the RDS JHA and directed the employees to commence work on the LOLO operations on the RDS without further delay. Those directions were refused and the individual respondents refused to load the RDS. 91 At this point, Wilkins handed Burton two hazard cards, asserting a right to invoke Chevron's safety procedure of issuing Stop Work Authorities (SWAs) based on a safety concern. One of the asserted SWAs concerned the alleged MOB Issue. The other asserted SWA was an alleged safety concern about the gangway of the RDS being situated under the slew radius of the tower crane (Crane Issue). 92 At this point, a number of the individual respondents were walking up the gangway to start their induction on the RDS. Robert Smith (the 13th respondent) intervened and told those employees to come back as there was a stop work authority in place. 93 Patrick management directed that the individual respondents commence work. However, the individual respondents did not comply. 94 The individual respondents performed no operational work on the RDS on 28 June 2012. 95 The MOB Issue had never been raised before as a reason for stopping work. The issue surfaced only after Wade Eaton had met with Chris Cain on 22 June 2012 and Christopher Niblett had sent his "This is it" email on 27 June 2012 (see paragraph 79(c) above). Given the range of risk mitigation measures in place (including exclusion zones), the residual risk of someone falling into the water during LOLO operations was low. There was a man overboard procedure and retrieval tools available. As recently as 25 June, the employees had signed off on a JHA that took account of MOB and rated it as a residual risk of "low". That rating was a fair and reasonable assessment. 96 The Crane Issue was not raised in any version of the RDS JHA. Although Wade Eaton's list of safety issues in his 25 June email raised issues associated with the tower crane, there was no mention of this issue. It was only raised as an alleged safety issue on 26 June in the context of the "safety workshop". The issue was recorded in a practical problem solving document signed by Patrick management and others, and in an email from Scott Curtis (Patrick Operations Manager) to Andrew Gill, copied to Damien Burton, Duncan Anderson and Adrian Howard that is set out at paragraph 94. 97 The refusal or failure of the individual respondents to perform their allocated work on the LOLO operations on the RDS on 28 June 2012 constituted "industrial action" within the meaning of s 19(1)(b) and/or (c) of the FW Act. The refusal or failure to work: (a) was not authorised by Patrick; and (b) was not based on a reasonable concern of the individual respondents about an imminent risk to their health and safety. 98 On 28 June 2012, at 3.35 pm, Scott Curtis sent an email to Andrew Gill, copied to Damien Burton, Duncan Anderson and Adrian Howard that stated: Good afternoon, Just thought I would provide a short summary outlining the outcomes of the practical problem solving for the Rolldock Sun. Problem Description: Position of gangway creates a hazard for access/egress to/from vessel Work group: Andrew Gill, Troy Swain, Michael Canning, John Cain, and Scott Curtis Timeframe: 1200hrs Wednesday 27lh to 1300hrs Thursday 28th June Solutions Lo-Lo operations • Re-position vessel and move approx. 15m to the West of the current location -Vessel advises that KJV approval required for this to occur • Move 3 x 20' containers which are loaded on the North side of vessel - Gemma has advised that this can be done if we provide a spreader. Solutions Ro-Ro operations • Review the material handling report for the RDS ro-ro ramp - Fred has a copy of this • Validate if a walkway can be established on the RDS ro-ro ramp-COMPLETE • Establish the vehicle/pedestrian controls for the RDS ramp - COMPLETE Solutions Miscellaneous • Provide solution for 'line re-coil risks' at the West end of 5 berth - COMPLETE All of the above has been agreed and 'signed-off by the participant listed above. FYI - Andrew has the original copy of the PPS worksheet and the JHA for the vehicle / pedestrian controls … these will be scanned and forwarded on to the group. … 99 By reason of the above, in breach of s 417 of the FW Act, each of the individual respondents engaged in unlawful industrial action during the nominal term of the Enterprise Agreement on 28 June 2012 by: (a) delaying work until around 11 am; and (b) refusing or failing to perform any work after 11 am. 29 June 2012 100 The individual respondents were allocated to work the day shift on 29 June 2012 on LOLO operations on the RDS. They attended the AMC at the commencement of their shift. 101 At approximately 6.30 am, Damian Burton went to the team leaders' hut, looking for Craig Wilkins. Wilkins was there. Robert Smith was also there and was on his mobile phone. Burton had a conversation with Wilkins to the following effect: Burton: "Has anything changed since yesterday? Will you guys work the RDS? If not, I'd prefer to do this the easy way, without extended drama." Wilkins: "I don't think anything has changed, but you should speak with Doug Heath." Burton: (Turning to Robert Smith) "If you are on the phone with Doug Heath, can I speak with him?" Smith handed Burton the phone and Burton spoke with Heath through it, having a conversation to the following effect: Burton: "Has anything changed? Will the guys work the RDS?" Heath: "No." Burton: "I don't want to inflame the situation more by repeating what happened yesterday. I will take the guys in to the training room and go through the same process as I went through yesterday. That is, I am going to ask them to go out to the workplace and follow their allocation, that is, work on the RDS." Heath: "They won't do it." Burton: "If that is the case, I will stand them down again." Heath: "Do what you need to do." Burton handed the phone back to Smith and asked Wilkins to gather the stevedores and meet him in the training room. 102 At approximately 7 am on 29 June 2012, in the training room, Burton stood in front of the stevedores and had a discussion with them, in the course of which the individual respondents confirmed that they were not willing to start work on the RDS. Burton stood them down for taking unlawful industrial action. 103 The refusal or failure of the individual respondents to perform their allocated work on the LOLO operations on the RDS on 29 June 2012 constituted "industrial action" within the meaning of s 19(1)(b) and/or (c) of the FW Act. The asserted authority to stop work was not based on a genuine safety issue. The refusal or failure to work: (a) was not authorised by Patrick; and (b) was not based on a reasonable concern of the individual respondents about an imminent risk to their health and safety. 104 On 29 June 2012, at 8.28 am, Chris Cain sent an email to Warren Smith and copied to the WA Branch Executive, Rod Pickette, the National Councillors and others as follows: "Warren, what is going on here. There is nothing on the cargo list that the 2aussie manned ships couldn't do. This is general cargo mate. I told Rod 2weeks ago to get these permits knocked off. All maritime unions need to oppose this urgently. What the fuck is this ALP doing? We have kept them out for 8 days, on the wharf and there given these fucken permits out like confetti . We have over 200 Seafarers trained on the database, who could man that vessel!". 105 By reason of the above, in breach of s 417 of the FW Act, the individual respondents engaged in unlawful industrial action during the nominal term of the Enterprise Agreement on 29 June 2012 by refusing or failing to perform any work on that shift. 106 On 29 June 2012, at approximately 6 pm, Patrick obtained a s 418 Order (the Order) from Fair Work Australia (FWA) directing the MUA and Patrick's employees to stop engaging in and organising industrial action at the AMC. 107 According to the log of the RollDock Sun the vessel was moved 25m forward along the wharf at the AMC between 1805 and 1920 hours. As a result the ship's gangway was no longer under the slew radius of the tower crane. The MUA's contraventions of s 417 of the FW Act 108 By reason of the above, in breach of s 417 of the FW Act, as part of its industrial campaign against Chevron's use of foreign labour, particularly in relation to the foreign-crewed RDS, the MUA organised for the stevedoring employees of Patrick assigned to LOLO operations on the RDS, including the individual respondents, to engage in unlawful industrial action during the nominal term of the Enterprise Agreement on 28 June 2012 and 29 June 2012. 109 The organisation of the industrial action was primarily carried out by Chris Cain, Doug Heath and Wade Eaton. It was done with the knowledge and consent of the most senior officials of the MUA, including Paddy Crumlin and Mick Doleman. 110 Accordingly, the MUA has committed contraventions of s 417 of the FW Act by organising the following industrial action during the nominal term of the Enterprise Agreement: (a) on day shift 28 June 2012, the initial delays to work and subsequent refusal or failure to work by the individual respondents; (b) on day shift 29 June 2012, the refusal or failure to work by the individual respondents. Conclusion 111 The agreed facts amply support a conclusion that the asserted contraventions, agreed upon by the parties, took place. 112 However, it is of critical importance that the particular conduct of the MUA which constituted the contraventions be characterised. As I will explain shortly in greater detail, I find that the conduct of the MUA was deliberate and that the safety issues, said at the material time by the MUA to justify the industrial action on each day, were just a pretext. The real reason for the unprotected industrial action was to promote the MUA's otherwise lawful campaign against Chevron's use of foreign crew on vessels. 113 I have inferred from the evidence generally, but in particular the evidence constituted by the chain of emails passing between the MUA and employees of Patricks, that the MUA, as part of its campaign against Chevron in relation to foreign crewed vessels, organised the second to sixteenth respondents to engage in unprotected industrial action on 28 and 29 June 2012 on the basis of asserted safety issues which were, in fact, a pretext. The asserted safety concerns did not meet the statutory test to render the industrial action lawful. 114 This conduct by the MUA constituted two contraventions of s 417 of the FW Act. 115 Senior Counsel for the MUA expressly acknowledged that this characterisation of the MUA's conduct and its effect at law was fair and that I should proceed on this basis. 116 This concession was made by the MUA on the basis that it would flow through to the issue of any civil penalties which might be ordered against it and, if relevant, the further issue of compensation. 117 The Court has a wide discretionary power to make declarations under s 21 of the Federal Court Act 1976 (Cth): see Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 437-8 (Gibbs J); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581-2 (Mason CJ, Dawson, Toohey and Gaudron JJ); Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89, 99 (Sheppard J). 118 It is open to the Court to make declarations based on agreed facts and admissions, as distinct from evidence led in the usual manner. A statement of agreed facts may be relied upon as evidence in support of a proposed declaration: see, for example, ACCC v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665, 680-1 [57]-[59], endorsed by the Full court in ACCC v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513, [92]; Hadgkiss v Aldin [2007] 169 IR 76, [10], Secretary, Department of Health Ageing v Pegasa Australia Pty Ltd [2008] FCA 1545 at [38]. (See also Evidence Act 1995 (Cth) s 191). 119 In Forster, the High Court held that before making declarations, three requirements should be satisfied: (a) the question must be a real and not a hypothetical or theoretical one; (b) the applicant must have a real interest in raising it; and (c) there must be a proper contradictor. 120 Each of these requirements is satisfied in this case. 121 I am also satisfied that the ancillary orders and further interlocutory orders, the subject of agreement between the parties, should be made. I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 30 June 2016