FEDERAL COURT OF AUSTRALIA Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Abseal Case) [2017] FCA 11 File number: VID 620 of 2015 Judge: JESSUP J Date of judgment: 19 January 2017 Catchwords: INDUSTRIAL LAW – where subcontractor employees not inducted to undertake construction work – consideration of evidence explaining refusal for varying reasons including failure to pay union fees and lack of relevant enterprise agreement – allegations of adverse action and discrimination by union toward subcontractor and employees – whether subcontractor and employees engaged in industrial activity – whether subcontractor exercising workplace right – whether induction staff acting on behalf of union – application dismissed. Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 346, 347, 354, 363, 793 Fair Work (Building Industry) Act 2012 (Cth) s 45 Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 Date of hearing: 19-23 September, 7 October 2016 Registry: Victoria Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 88 Counsel for the Applicant: Mr R Dalton Solicitor for the Applicant: Minter Ellison Counsel for the Respondents: Mr C Dowling with Mr T Borgeest Solicitor for the Respondents: Mr J Winters of Construction, Forestry, Mining and Energy Union ORDERS VID 620 of 2015 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent NICK KARAMITOS Second Respondent JUDGE: JESSUP J DATE OF ORDER: 19 JANUARY 2017 THE COURT ORDERS THAT: 1. 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 Director of the Fair Work Building Industry Inspectorate under the Fair Work (Building Industry) Act 2012 (Cth) ("the BI Act"), sought declarations and penalties against the respondents, the Construction, Forestry, Mining and Energy Union ("the CFMEU") and one of its members, Nick Karamitos, in respect of conduct alleged to have been in breach of ss 340, 346 and 354 of the Fair Work Act 2009 (Cth) ("the FW Act") on the morning of 20 November 2013 at a construction site at 108 Flinders Street, Melbourne ("the site"). It is Mr Karamitos who was alleged to have been the primary contravener, with the CFMEU's liability arising by the operation of ss 363 and 793 of the FW Act. On 2 December 2016, the Australian Building and Construction Commissioner was substituted as the applicant pursuant to item 19 in Sch 2 of the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth). In these reasons, for the sake of convenience, I shall use "the applicant" as a reference either to the Director or to the Commissioner, as the case requires. THE FACTS 2 The construction project at the site ("the project") was for a new residential apartment building. Merkon Construction Pty Ltd ("Merkon") was the head contractor. It was not, according to its director, Peter Mercoulia, "a huge company". The project was, at the time, its biggest job. It had engaged I & D Constructions Pty Ltd ("I&D") to perform structural work on the project. I&D had engaged Camillo Concrete Structures Ply Ltd ("Camillo") to perform the steel, concrete and precast structural work on the project. In the period leading to 20 November 2013, Camillo had engaged Abseal Pty Ltd ("Abseal") to carry out certain rope access caulking work on the project. 20 November was to have been the first day of Abseal's work at the site, and Michael Kostal, a director of Abseal, and Chris Miller, an employee of Abseal, duly arrived at the site that day to undergo site induction and to commence work. They never did commence work, however, and it is the events responsible for that circumstance that have become controversial in this proceeding. 3 The work for which Abseal was contracted, at least in the first instance, involved the caulking of the walls of an internal air riser which extended over all floors of the building – four below ground and 14 above ground. There was some divergence in the witnesses' identification of the purpose of this riser – whether as a lift shaft or as a light well, for instance – but nothing presently turns on that. What made Abseal's services of particular value to a company like Camillo was that their crews secured access to their required work locations by way of an apparatus that was suspended from above by ropes: thus Abseal was referred to as a "rope access" caulking contractor. Working from such an apparatus was "high risk construction work" within the meaning of the Occupational Health and Safety Regulations 2007 (Vic). 4 Abseal had an established relationship with Camillo, having been used by Camillo on a number of previous occasions. Ivan Vuletic, Camillo's supervisor at the site (called by the respondents), gave evidence that it was on his suggestion that Abseal was engaged for the rope access caulking at the site. That suggestion was approved by his boss, Michael Moffa. Mr Vuletic asked Mr Kostal to visit him at the site, for three reasons, first, to ask him if Abseal was available to do the work, secondly, to ask him how long the job would take, and thirdly, to enable Mr Kostal to price the job. Mr Kostal did visit Mr Vuletic on site, where he was shown (in Mr Vuletic's words) "where things were" and was introduced to Lee Panos, a building worker employed on the site by Merkon who was also the site shop steward for the CFMEU. What was mentioned in conversation with Mr Panos was the need for Abseal to have its "paperwork" up to date. Mr Vuletic told Mr Kostal that he needed to send the paperwork to Camillo, and also to bring it to the site, in which latter respect he (Mr Vuletic) made it clear under cross-examination that it was agreed as between himself, Mr Kostal and Mr Panos that Abseal would send the paperwork to the latter. When Mr Kostal was under cross-examination, he confirmed that such an arrangement had been made. I shall return to the "paperwork" in a moment. 5 An email dated 11 November 2013 from Camillo to Abseal makes it apparent that the latter had been engaged for the project by the former by, or on, that date: Please find attached precast shop drawing elevations. We request you commence absailing [sic] works on stair pressurization shaft initially and then wait for further instructions to continue with East and West External Panels. Please forward you [sic] SWM's and industry docs prior to commencing works. As discussed on the phone your abseil rate is between $15.00-18.50 per meter. We will not be paying hourly labour rates for these works. By the abbreviation "SWM", the writer of this email was referring to a Safe Work Method Statement ("SWMS") required for high risk construction work by reg 299 of the Work Health and Safety Regulations 2011 (Cth). Such a statement was required to identify the work that was high risk construction work, to specify hazards relating to the high risk construction work and risks to health and safety associated with those hazards, to describe the measures to be implemented to control the risks, and to describe how the control measures were to be implemented, monitored and reviewed. 6 On 13 November 2013, Abseal sent an email to Mr Panos, to which were attached electronic versions of its SWMS, a certificate of currency in respect of its public and product insurance policy, its most recent receipt for a contribution to the Construction Industry Long Service Leave Fund, the cover page of its enterprise agreement with the CFMEU – the Abseal Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011 – 2015 ("the Abseal agreement") – a certificate of currency for insurance in respect of its liability under the Accident Compensation Act 1985 (Vic), a recent printout of its contribution history in respect of superannuation in the construction industry, and a statement of its account with "Incolink" in respect of redundancy entitlements in the construction industry. These documents, collectively, were the "paperwork" to which I have referred above. Referring to the practice commonly, albeit not universally, followed by Abseal, Mr Kostal said that, when documents of these kinds had been sent by email before the event, it was the site contractor (such as Merkon was in the present case) who would print them out to be filled in and signed in hard copy on the occasion when the workers concerned first arrived at the relevant site. The document which has become controversial in this proceeding is Abseal's SWMS for its intended work at the site. 7 There is no evidence, one way or the other, on the question whether Abseal's paperwork was also sent to Camillo, but, as will later appear, Mr Vuletic did not have it. 8 As mentioned above, on 20 November 2013 Mr Kostal and Mr Miller arrived at the site, ostensibly to carry out Abseal's caulking contract with Camillo. However, if Mr Kostal's evidence is to be believed, there was another item on his personal agenda that day. Abseal and its employees were covered by the Abseal agreement. At the general level, that was satisfactory to the CFMEU. But Mr Kostal had recently heard, "on the grapevine" as he put it, that the CFMEU had endorsed the making of enterprise agreements, specifically for rope access work, with four companies, not including Abseal. It must have been more than the grapevine, since Mr Kostal had experienced some situations in which Abseal had been prevented from working on a site, or had been dispatched from a site, on account of not having one of these agreements. If, as was commonly the case, the CFMEU shop steward on a particular site had not heard of these new rope access agreements, Abseal encountered no problem. But the occasions when it had been otherwise were sufficiently troublesome for Mr Kostal to have made concerted attempts to contact the responsible officer at the CFMEU, Ralph Edwards, with a view to having the CFMEU endorse a rope access agreement for Abseal. Those attempts had been fruitless. 9 Mr Kostal determined that he needed to do something quite unconventional to get Mr Edwards' attention. What he did was to allow his own union dues, and those of Mr Miller, to fall behind. He intended and expected that this would be picked up when the two of them sought to commence work at the site. He deliberately picked the project because it was the smallest rope access job that he had at the time. Under cross-examination by counsel for the respondents, Mr Kostal accepted that his plan involved a deliberate intention that he and Mr Miller would be prevented from entering the site, so he could then "use that as leverage against the union". The plan was, in effect, to create a situation in which he could point out to the shop steward on the site that he and Mr Miller had no intention of paying dues to a union that was not serving their interests. It was, as Mr Kostal accepted under cross-examination, also part of his plan, that, when he and Mr Miller were refused admission to the site as he anticipated they would be, they would immediately complain to the Fair Work Building Industry Inspectorate ("the Inspectorate"), which would then, to use counsel's metaphor, knock on the CFMEU's door. With this leverage, Mr Kostal hoped to get Mr Edwards' attention. As matters transpired, the plan did not work. 10 At a very high level, what actually happened on 20 November 2013 was that Mr Miller arrived at the site at, or somewhat before, the normal starting time of 7 am. Mr Kostal himself, however, did not arrive until some time later. In the result, they missed the standard induction session (which was, on that day, attended by other sub-contractors). But it seems that Mr Karamitos, a labourer employed by Merkon whose duties included forklift driving and traffic management, and who was doing the inductions on behalf of Merkon that day, was prepared to induct Mr Kostal and Mr Miller. But the induction was not completed. Why not is controversial: the applicant says that it was because Mr Kostal and Mr Miller were behind in their union dues and Abseal was not a party to a rope access enterprise agreement, while the respondents say that it was because Abseal's paperwork, and in particular its SWMS, was not produced. Mr Kostal and Mr Miller remained on the site, without commencing work, until about 10:30 am. Exactly when, and more particularly why, they left the site remain matters of some mystery. By 1:45 pm, however, they were in the office of the Inspectorate giving statements which have provided the foundation for this proceeding. In a number of important areas, their evidence in court departed from the statements which they then gave. 11 Inductions at the site might have been done by a number of people, including Mr Panos, the Merkon site foreman Bill Adamopoulos and Mr Karamitos. It is apparent from the understanding reached between Mr Panos, Mr Vuletic and Mr Kostal that it was contemplated that Mr Panos would be the one who would do the inductions when the Abseal workers first presented themselves on the site. However, as things transpired Mr Panos was absent on 20 November 2013. It was Mr Karamitos who did the inductions that day. 12 Mr Karamitos arrived at the site shortly before 7 am. He was told by Mr Adamopoulos that Mr Panos would not be at work that day, because of illness. He asked Mr Karamitos to carry out the inductions. Mr Karamitos had done that before, and was familiar with the process and the requirements. The first inductions which he undertook were for three plasterers working for a contractor called Express Plastering. Mr Karamitos estimated, in his evidence, that these inductions commenced at about 7:10 am or 7:15 am, and occupied about half an hour (although, as appears below, I do not accept the first of those estimates). After completing those inductions, Mr Karamitos was approached by Mr Kostal and Mr Miller, although they were not, at the time, known to him. They told him that they wanted to be inducted to work on the site, and explained the nature of the work they were to do (and, I presume, the company by whom they were contracted). 13 What was said from this point forward is controversial. According to the evidence of Mr Karamitos, he told Mr Kostal and Mr Miller that he needed to see their "SWMS, [their] insurances and [their] work tickets." Mr Kostal's response was to say, "We're not financial and we're not current until Ralph Edwards from the CFMEU gives me a rope access agreement." Mr Karamitos said that that was nothing to do with him, and that he just needed to see their SWMS and insurances. But Mr Kostal "just kept on going on about this EBA and all this crap", while Mr Karamitos maintained his response that it had nothing to do with him. At some point, Mr Kostal told Mr Karamitos that Abseal had already sent its "SWMS and insurances". So Mr Karamitos telephoned Mr Vuletic (who was elsewhere on the site at the time) and told him that his caulking contractors did not have a copy of their SWMS. Mr Vuletic said that he would join them. At this point Mr Kostal and Mr Miller, according to Mr Karamitos, pulled out their work tickets and their union tickets, and said to him, "We're not financial, but we're happy to be financial if Ralph Edwards from the CFMEU gives us a rope access EBA." So Mr Karamitos called Derek Christopher, the relevant organiser at the CFMEU, to tell him what was happening on the site, but he could not get through to him at the time. 14 Then Mr Vuletic "came down", as Mr Karamitos put it. Mr Karamitos said to him, "You've engaged these guys. I've asked them for their SWMS and insurances. I don't have them. Do you have a copy?" Mr Vuletic's response was "Insurances are fine. SWMS are fine. They're all 100 per cent." But Mr Vuletic did not have a copy of the relevant paperwork. So Mr Karamitos took Mr Vuletic aside and told him that the workers were proposing to do high risk work, and that he needed to see their SWMS and insurances. But Mr Vuletic confirmed that he did not have them. He then had a conversation with Mr Kostal and Mr Miller, to which Mr Karamitos was not a party. By then it was, Mr Karamitos estimated, about 8:15 am. 15 Turning to the evidence of Mr Kostal and Mr Miller, although they were centrally involved in the events of 20 November 2013, if they are to be believed they had little or no recollection of the detail of those events. I got the distinct impression that they were mightily apprehensive of the consequences of being seen to assist the applicant in this case. They gave evidence on subpoena, but even the service of the subpoena was not enough to get Mr Kostal into the witness box: he had to be arrested for the purpose. Counsel for the applicant was given leave to cross-examine them. Eventually, each of them accepted that he was telling the truth, as he then perceived it, in his interview with the inspectors on the afternoon of 20 November 2013. Each was cross-examined by counsel for the respondents against his evidence-in-chief in this case and his statements in the interview. Even that cross-examination left me with the impression that whether or not these witnesses were telling the truth, or even making a serious attempt to recall the events of 20 November 2013, was completely a matter of chance. Aside from a consistent tendency to agree with the narrative leadingly put to them by counsel for the respondents, these witnesses gave the impression of having – and perhaps they did have – little or no recollection of who said what, when, and to whom, at the site on that day. 16 For those reasons, I regard the transcripts of the interviews which Mr Kostal and Mr Miller had at the Inspectorate on the afternoon of 20 November 2013 as by far the more reliable source of their recollections of the events of that day. I approach the use of those transcripts, however, with care, for three reasons. First, these workers went to the Inspectorate with a project: to paint the CFMEU in a bad light. Any ambiguity in the events on the site that morning was, in what they told the inspectors, resolved accordingly. Secondly, the information given to the inspectors did not have the focus, or the discriminations at the level of detail, which these workers could undoubtedly then have provided, and which would undoubtedly have been elicited from them by counsel in a contested proceeding such as the present one. And thirdly, the respondents were not there to question the workers, and to use the benefit of contemporaneity to lead from them evidence that might have been more balanced. There is no suggestion that they need have, of course: all I do here is to point to the distinction between the investigative process and the leading, and testing, of evidence in court. 17 Commencing with Mr Kostal's interview, he said that the inductions of Mr Miller and himself were to be done by a worker who was doing the forklift and traffic control (obviously Mr Karamitos), whom he described as "the acting shop steward". At the outset, this worker noticed that the union cards presented by Mr Kostal and Mr Miller were not the latest paid up ones, and said, "Look, I can't let you guys start today unless you pay your union fees." They explained to him that they were not happy to pay only to be discriminated against, referring to the fact that the CFMEU would not give them a rope access enterprise agreement, with the result that they could not work on some jobs. The acting shop steward was ignorant of any specialised rope access agreement: it was Mr Kostal and Mr Miller who informed him about that. He then contacted his office about the enterprise agreement that Abseal did have, and was told, according to Mr Kostal, that it was only a caulking agreement, not a rope access agreement; and this then became a second reason for the acting shop steward to refuse Mr Kostal and Mr Miller entry to the site. 18 At this point, Mr Kostal produced an email that he had received from the Master Builders' Association to the effect that what the acting shop steward was doing was illegal – as Mr Kostal put it in his interview, it was "against the Fair Work Building, in breach of whatever". So the acting shop steward then telephoned someone whom Mr Kostal understood to be his "boss", and came back with the message that Abseal's paperwork had not been received 48 hours prior to them presenting for induction. As Mr Kostal told the inspectors in his interview: [W]e did email [the paperwork] to the guy, I've got proof that we'd emailed it to him over a week ago and, you know, it's his fault and he didn't do his job properly that he hasn't reviewed it, or whatever. That was their excuse to not let us on, you know, so they drummed up something, which they always do, you know. … If you're not doing what they want, they'll find something … to stop ya in whatever way, so that was his reason and I was going, "Well, yeah, I've got proof, I sent it to your boss over a week ago and he hasn't, you know, whatever, reviewed it or submitted it or rah, rah, rah," so they refused us on that basis, yeah, and he sort of spoke to our - well, the subcontractor we're subcontracting to, Camillo, and he's obviously got on to his boss as well and said, "Look, yeah, this is what's happening," and they basically said, "Look, yeah, we can't let you work. We're going to have to ask you to leave." It was Mr Vuletic who asked them to leave the site. 19 In his interview (which was conducted contemporaneously with, but separately from, Mr Kostal's), Mr Miller said that, when he and Mr Kostal arrived at the site on 20 November 2013, Mr Vuletic organised them to do an induction. They met the "stand-in" shop steward. They gave him all their cards, including their CFMEU cards, and he took them away and photocopied them. On returning, the stand-in shop steward told them that their CFMEU dues were out of date by about a month, and that they would not be starting their job until they paid up. Mr Kostal and Mr Miller then explained that they had an issue with the CFMEU's policies in regards to enterprise agreements. They were awaiting some form of contact from Ralph Edwards, who had refused to contact Mr Kostal or himself despite numerous calls to him and his associates. Mr Miller "kindly informed" the stand-in shop steward that he would refuse to pay his union dues until such time as he had clarification on that. The stand-in shop steward said that he did not agree with that, to which Mr Miller's response was that he did not have to agree: it was his (Mr Miller's) policy that he did not pay people who were trying to put him out of work. The stand-in shop steward said that he would contact his "area manager" in regards to the union dues of Mr Kostal and Mr Miller being out of date and about the enterprise agreement. He then informed Mr Kostal and Mr Miller that they were "kicked off site and … not to commence work". Mr Miller told him that it was illegal for him to stop him (Mr Miller) working. The stand-in shop steward then "grabbed" (Mr Miller's word) Mr Vuletic, pulled him aside and spoke to him out of the earshot of Mr Kostal and Mr Miller. After that, Mr Vuletic returned to Mr Kostal and Mr Miller and told them that the union had directed them to leave the site. 20 Mr Vuletic, who was called by the respondents, gave evidence that, on 20 November 2013, he was in the process of dismantling his office on the site. Camillo had all but finished its contract, and he wanted to get the caulking done quickly so he could move on to another job for which Camillo had been contracted. He said that he noticed one of the workers from Abseal at the site at 7 am. From other evidence, we know that that was Mr Miller. By 7:30 am, he had met both of the workers, and, at about that time, he told them to report to Mr Karamitos for their inductions. Some time later, now accompanied by Mr Karamitos, they returned to Mr Vuletic and "basically" told him that their paperwork wasn't up to date. They were missing their SWMS, and the induction could not be completed. 21 On 5 August 2014, Mr Vuletic appeared before the applicant for examination pursuant to s 45(1)(e) of the BI Act. In that examination, he said that, after he had sent Mr Kostal and Mr Miller for induction by Mr Karamitos, the latter came to see him at his (Mr Vuletic's) office, which was in the process of being dismantled (although, later in the examination, Mr Vuletic said that he was "called out to the front of the job", which would have been consistent with the evidence of Mr Karamitos, Mr Kostal and Mr Miller that the conversations in which Mr Vuletic was involved occurred not in his partly-dismantled office but at or near the entrance to the site). Mr Karamitos asked Mr Vuletic whether he had the paperwork for Abseal. Mr Vuletic's response was, "No, I haven't. I've just shut everything out – I've demobilised the office, we're pulling the walls apart, so I haven't had any materials to get to." Mr Karamitos gave him to understand that he could not access the shop steward's office. That was, of course, Mr Panos' office: from other evidence, the court knows that the office was locked with a padlock to which only the absent Mr Panos had a key. Mr Karamitos told Mr Vuletic that without the paperwork he could not proceed with the induction of Mr Kostal and Mr Miller, and without proceeding with the induction, those two workers could not start work on the site. Mr Vuletic then rang his boss, Mr Moffa, and informed him of the impasse which had been reached on the site. Mr Moffa's response was that, if the Abseal workers had not "got their act together" in relation to the paperwork, Mr Vuletic should tell them to leave, and Camillo would "sort it out", which Mr Vuletic understood to mean that Camillo would do the caulking themselves. 22 When pressed by counsel assisting the applicant at the examination, Mr Vuletic said that, at about the time when he was involved in discussions as to the missing paperwork, Mr Kostal was "volatile" and "very upset" about something in which Mr Vuletic took no interest: the payment of his and Mr Miller's fees to the CFMEU. He (Mr Vuletic) recalled Mr Kostal insisting (to Mr Karamitos) that he was "prepared to pay" his fees. In this area of the controversy, Mr Vuletic was, of course, hearing only a small part of an ongoing discourse to more of which the court has been exposed. With respect to the paperwork as such – a matter in which Mr Vuletic was interested – he recalled Mr Kostal insisting that it had been sent to the site some time previously. 23 It is important to give some attention to the timing of the events disclosed in the evidence referred to above. The applicant led evidence of the time at which a number of telephone calls were made, and of the duration of those calls. From that, it appears that Mr Karamitos telephoned Mr Vuletic at 8:01 am. That was, I find, the occasion, referred to by Mr Vuletic in his examination before the applicant on 5 August 2014, when he was called out to the front of the job. I do not accept his evidence that Mr Karamitos came to see him in in his partly-dismantled office. The most credible reason for Mr Karamitos to have summoned Mr Vuletic was to ask him if he had a copy of the Abseal paperwork, specifically its SWMS. It would not have been unreasonable for Mr Karamitos to have supposed that Mr Vuletic, the on-site representative of Camillo, might have had a copy of that paperwork. This view of things is consistent with Mr Karamitos' evidence that he contacted Mr Vuletic about the missing SWMS. 24 The applicant's case would have it that the reason that Mr Karamitos spoke to Mr Vuletic was to inform him, as the representative of Camillo, that Mr Kostal and Mr Miller could not work on the site because they were unfinancial with the CFMEU and because Abseal was not a party to a specialized rope access enterprise agreement. That is a possibility, but it was denied by the two participants in this conversation, Mr Karamitos and Mr Vuletic, and should not be inferred against the competing demands of a benign alternative inference, one which is no less open on the objective facts. 25 If Mr Karamitos did bring Mr Vuletic into the conversation at 8.01 am, what had transpired prior to that time? For the induction of Mr Kostal and Mr Miller to have proceeded normally, the representative of Merkon conducting the induction would have required, as a minimum, the presence of Abseal's paperwork. Mr Kostal was not expecting to have any issue at that level, since he knew that the paperwork had been emailed to Mr Panos some days previously. There does not seem to be any doubt but that he made that clear to Mr Karamitos (in addition to giving expression to his prepared spiel about the enterprise agreement). What might be expected to have happened then would be for Mr Karamitos to have gone to the site office, or somewhere, to find the missing paperwork. In their interviews with the inspectors, Mr Kostal and Mr Miller said that Mr Karamitos had gone off to ring the CFMEU, or his boss, or his "area manager", and it may be that that too was done by Mr Karamitos at this time. But the evidence is that Mr Karamitos was using his mobile phone on that day, and he would not have had to have absented himself if his only purpose was to make a telephone call. Another purpose of Mr Karamitos going to the site office was probably, as Mr Miller said, to enable him to photocopy the workers' "cards". It would be consistent with Karamitos' evidence, and not inconsistent with anything which Mr Kostal and Mr Miller said in their interviews with the inspectors, that, at the same time, Mr Karamitos learnt that the Abseal paperwork was not available to Merkon site management. If so, there is every likelihood that, on his return to the front of the site, he would have telephoned Mr Velutic about the paperwork. 26 The next question is whether, in the time before he made that call, Mr Karamitos did telephone the CFMEU about the rope access agreement, as the applicant alleges. Both Mr Kostal and Mr Miller told the inspectors that he did so, but that was supposition on their part, since there is no suggestion that they were party to any relevant conversation. But Mr Kostal also told the inspectors that, upon being told by Mr Karamitos that Abseal could not work on the site because its enterprise agreement covered the work of caulking only, not rope access caulking, he (Kostal) produced the email from the Master Builders' Association to which I have referred at para 18 above. In an otherwise very thorough testing of the transcript of Mr Kostal's interview in the course of his cross-examination in this case, counsel for the respondents did not touch upon this subject. That Mr Kostal should have taken this line with Mr Karamitos is strongly consistent with the applicant's case that Mr Karamitos was, by then, at least making reference to the specialized rope access enterprise agreement as something which would normally be required for work of the kind which Abseal proposed to carry out. Since Mr Karamitos commenced the day knowing nothing about this species of agreement, it could, I infer, only have been by contacting the CFMEU that he would have been able to take such a position. 27 Mr Karamitos' evidence, however, is that he did not contact the CFMEU, or any official of it, until he finally spoke to Mr Christopher in a call which the telephone records put at 9:36 am. Those records show that he made a call to Mr Christopher at 8:10 am, but he (Karamitos) said in his evidence that he was unable to get through on this call. There is some reason to be doubtful about that evidence, since the call is shown to have been of nearly two minutes' duration. However, of more present importance is the question whether Mr Karamitos telephoned the CFMEU before he contacted Mr Vuletic at 8:01 am. 28 It is uncontroversial that he did. He called the CFMEU office at 7:47 am, the call lasting a little more than four minutes. In his evidence, however, Mr Karamitos said that that call related to Express Plastering (see para 12 above). In their induction, the workers from that contractor told Mr Karamitos that they wanted to use a kind of ladder which he suspected might have been a "chariot ladder". Mr Karamitos knew that there had been a death in the industry arising from the use of chariot ladders, "and there [were] flyers circulating about chariot ladders and whatnot". So he wanted to make sure that the ladder proposed to be used by the plasterers was not a chariot ladder. He rang Gerry Ayres at the CFMEU and described the appearance of the plasterers' ladder. Mr Ayres said that this ladder was a platform ladder, not a chariot ladder, and could be used. Mr Karamitos returned to the plasterers, completed their inductions, and only then turned to consider the inductions of Mr Kostal and Mr Miller. Thus it was that he placed the commencement of any dealing which he had with them at 7:50 am or thereabouts. 29 There are two difficulties with Mr Karamitos' evidence about the phone call at 7:47 am. First, it is inconsistent with Mr Vuletic's evidence that the induction of Mr Kostal and Mr Miller commenced at 7:30 am or shortly thereafter. There was nothing improbable about that evidence, and it was broadly consistent with Mr Karamitos' own evidence that inductions always commence at 7 am and go for about 30 minutes. How Mr Karamitos came up with the estimate that the induction of the plasterers commenced at 7:10 or 7:15 am was never made clear. The probabilities are that this was a matter of reconstruction from the known time of his telephone call to the CFMEU at 7:47 am rather than a matter of actual recollection. And secondly, the court has only Mr Karamitos' own say-so on the matter of the purpose of that call. No explanation was given by the respondents for their omission to call Mr Ayres. Some time before the trial, they knew that the time, duration and purpose of this and other telephone calls would be significant aspects of the applicant's inferential case. If Mr Karamitos' evidence was correct, the matter of the real purpose of the call at 7:47 am could have been put to rest by the respondents adducing brief corroborating evidence from Mr Ayres. 30 I find on the probabilities that Mr Karamitos first engaged with Mr Kostal and Mr Miller at or shortly after 7:30 am. I accept the evidence contained in the statements of Mr Kostal and Mr Miller to the investigators that the first matter of substance that arose in their conversation with Mr Karamitos related to their unfinancial status with the CFMEU. That was also the evidence of Mr Karamitos himself, in which respect I find that his request for their "work tickets" was intended to include, and was reasonably understood by Mr Kostal and Mr Miller as including, a request for their CFMEU tickets. When they showed those tickets to Mr Karamitos, he recognized that these workers were behind in their dues. But that was no secret: to the contrary, Mr Kostal made a point of drawing that to Mr Karamitos' attention. I do not accept Mr Karamitos' evidence that he told them that their unfinancial status was nothing to do with him. I accept what the workers told the inspectors, namely, that he told them that they could not start on the site until their dues were brought up to date. 31 But the matter of union dues, in its own right, was never an issue as between the Abseal workers and Mr Karamitos. As a matter of reality, Mr Kostal and Mr Miller never intended to work on the site while unfinancial with the CFMEU. Rather, they intended to use their unfinancial status as a point of leverage to require the CFMEU to get serious, as it were, about the enterprise agreement question. It was to that aspect that the conversation between them and Mr Karamitos quickly moved. 32 Accepting, as I do, that Mr Karamitos knew nothing about a specialised rope access enterprise agreement, I also consider it improbable that he would have taken it upon himself to argue the toss with Mr Kostal on the issue. It is most likely that he would have attempted to make an inquiry about the matter, and it was Mr Kostal's, and Mr Miller's, statements to the inspectors that that is exactly what Mr Karamitos did. I find that he did telephone the CFMEU at 7:47 am with that inquiry. But, at roughly the same time, he was also concerned to locate Abseal's paperwork, which Mr Kostal had insisted had been sent to Merkon some days previously. Thus, when Mr Karamitos returned to Mr Kostal and Mr Miller, he had two pieces of news: that the Abseal agreement was not appropriate for work of the kind that was proposed, and that the Abseal paperwork could not be located. The former piece of news led to Mr Kostal's accusation that it would be illegal for Abseal to be prevented from working on the site on account of not having a particular kind of agreement, and to the production of the Master Builders' email. Notwithstanding that axis of controversy, however, it is clear that Mr Karamitos continued with his attempt to find the paperwork, contacting Mr Vuletic at 8:01 am for this purpose. Whatever Mr Karamitos may have said to Mr Kostal, the absence of a rope access enterprise agreement was not, at this point, operative in his (Karamitos') refusal – inability might be a better word – to carry out the inductions of the Abseal workers. 33 It was the absence of Abseal's paperwork which led to Mr Vuletic being brought into the conversation. By the time he joined the other three at the front of the site, it was, I infer, about 8:05 am. Both in his examination before the applicant and in his evidence in this case, Mr Vuletic denied being told by Mr Karamitos that the problem with Mr Kostal and Mr Miller was their unfinancial status with the CFMEU. Mr Karamitos too denied that he said anything to that effect to Mr Vuletic. The evidence of both of these men was that the problem they discussed was the absence of the Abseal paperwork. While Mr Kostal and Mr Miller saw Mr Karamitos conversing with Mr Vuletic, it was only their surmise that the former was telling the latter that they could not work on site until their account with the CFMEU was put in good order. The actual participants in the conversation deny it. I accept those denials, and find that the only reason which Mr Karamitos expressed to Mr Vuletic why Mr Kostal and Mr Miller might not be inducted and commence work was the missing paperwork. 34 There is evidence that two telephone calls were made at 8:10 am: one by Mr Vuletic to Mr Moffa, and the other by Mr Karamitos to Mr Christopher. In his evidence, Mr Karamitos was insistent that, despite attempting on a number of occasions to make contact with Mr Christopher, it was not until much later, at about 9:30 am, that he succeeded in speaking to him. Although I have pointed to the recorded length of the call at 8:10 am as providing some reason to doubt what Mr Karamitos said in that regard, against his denials I could not find not only that there was a conversation at this time but also that the subject of it related to the issues which have now become controversial. 35 The call from Mr Vuletic to Mr Moffa at 8:10 am was followed by another at 8:14 am, and it may be that the first was unsuccessful or inconclusive; alternatively, it may be that it was the point at which Mr Vuletic informed Mr Moffa of the nature of the problem, the later call being the point at which Mr Vuletic received his instructions from Mr Moffa. Either way, it is clear, as Mr Kostal put it in his evidence, that Mr Vuletic "got on to his boss". Although Mr Kostal was not a party to that conversation, his understanding that it was the absence of the Abseal paperwork that formed the subject of it is consistent with the stage which matters had then reached, and with the evidence of Mr Vuletic himself. It is uncontroversial that, at a point subsequent to that conversation, Mr Vuletic told Mr Kostal and Mr Miller that they would have to leave the site. Both Mr Kostal and Mr Vuletic say that the reason for this was, as directed by Mr Moffa, that the Abseal paperwork was not in order. 36 Mr Karamitos did not direct, or ask, Mr Kostal and Mr Miller to leave the site. Neither did he give such a direction to, or make such a request of, Mr Vuletic. The latter did not need to be told the consequences of a worker not being inducted on account of the absence of his or her paperwork. That was the situation which he faced on 20 November 2013. He explained it to Mr Moffa, and it was he, Moffa, who made the decision that Mr Kostal and Mr Miller should be told to leave. Mr Vuletic acted accordingly. 37 After Mr Vuletic told Mr Kostal and Mr Miller that they would have to leave the site, they proceeded to the site office. They were taken there by Mr Vuletic himself, who did not remain, but returned to his work dismantling his own site office. Mr Karamitos also proceeded to the site office. The evidence of the events of the next two hours or thereabouts may be examined in two parts, the first relating to the period until about 9:30 am when the absence of the Abseal SWMS remained the sticking point for the induction of Mr Kostal and Mr Miller, and the second from then until about 10:30 am when the SWMS was to hand but, for reasons to which I shall come, the induction still did not proceed. 38 In his interview with the inspectors on the afternoon of 20 November 2013, Mr Kostal said that, after entering the site office, he spoke to the manager of the project, Bill Stoimenovski. There were many people – probably 12 – present there all having an "input" into the problem. But Mr Stoimenovski was the only one who was prepared to give his name. On the subject of Mr Edwards not being prepared to speak to Abseal about an enterprise agreement, Mr Stoimenovski advised Mr Kostal that he needed to keep sending an email to him (Edwards) "day and night" until he responded. Mr Kostal told Mr Stoimenovski that he had not gone down that road as such, but referred to the other attempts which he had made to contact Mr Edwards, including sitting in his office. Mr Stoimenovski said, "something stinks here, something's not right." He (Stoimenovski) then said to Mr Karamitos that he should "contact them" – presumably the CFMEU – adding, "We don't want the Fair Work coming and investigating us. You get Ralph Edwards to call him. He's trying to be a part of this and you guys are …"; at which point Mr Kostal's statement to the inspectors trailed off into another area. 39 In Mr Miller's interview with the inspectors, he said that, after he and Mr Kostal went to the site office, Merkon management seemed to "side" with them, trying "on numerous occasions to get their temporary shop steward to make arrangements" for Abseal to have an enterprise agreement. But the shop steward could not seem to make contact with the CFMEU, despite numerous calls. Eventually he did succeed in doing so, and spoke to someone called, as Mr Miller recalled, Derek. The message from him was that Mr Kostal and Mr Miller were not to start work that day. 40 In evidence, Mr Karamitos said that, when he got to the site office, he spoke to Mr Adamopoulos. He told him that the Abseal workers had come on to the site without their SWMS or insurances. He asked him if he could find that paperwork, so that they could be inducted. Mr Adamopoulos looked at what Merkon had, and reported back to Mr Karamitos that he could not see the SWMS and insurances for these workers. Mr Kostal was present by this stage, and Mr Adamopoulos said to him (still according to Mr Karamitos), "Just flick us over a copy of your SWMS and insurances, and you're right to start." But Mr Kostal and Mr Miller "kept on going on about an EBA, and they had already done so …." The reference to already having done so was, I infer, a reference to the paperwork having been sent to Mr Panos. The telephone records show that, at 9:04 am, Mr Karamitos telephoned Mr Panos. He said that the purpose of this call was to find out if he (Panos) had a copy of the Abseal SWMS, but he (Karamitos) was unable to get through to him (Panos). Mr Karamitos also made a number of attempts to contact Mr Christopher, but none was successful until he finally spoke to him at 9:36 am. At 9:22 am, he telephoned Mr Mercoulia, to let him know what was happening on the site, but he could not get through, and left a message. Mr Karamitos gave evidence that, after about 9:20 or 9:25 am, he had no further interaction with Mr Kostal or Mr Miller. 41 The Merkon site foreman, Mr Adamopoulos, gave evidence. He also, however, made a statement for the applicant which he signed on 5 February 2014, and the proximity of that statement to the events in question makes it a useful place at which to start. In his statement, Mr Adamopoulos said that, when he arrived in the site office, there were two men there whom he recognised – Mr Karamitos and Paul O'Donnell (another Merkon foreman) – and two men whom he did not recognise, but who were, he soon learnt, the two workers from Abseal. Mr Adamopoulos heard Mr Karamitos saying, "There's no compliance paperwork on our system for me to check to see if these guys are okay to start work". The Abseal workers were saying, "This is bullshit, we sent you the stuff earlier", to which Mr Karamitos responded, "Lee isn't on site so I can't check with him". Mr Adamopoulos heard "people" saying, "We don't have access to his room so we can't get any of the paperwork if you sent it through". The Abseal workers said, "We've sent the paperwork in. We aren't going anywhere. We have done the right thing. If we can't start we are going to get Fair Work Australia in." Mr Adamopoulos heard those workers say something about how they had been having trouble with enterprise agreements and union membership on other sites, and that they had had enough. Mr Adamopoulos said to them, "Guys, I sympathise with you blokes, we want the work done. With the right paperwork, go ahead – no problems. No-one is going to stop you from Merkon." From what Mr Adamopoulos then recalled, the workers from Abseal "took off" after a while (he did not know when). He was not sure how it ended. 42 Mr Adamopoulos' evidence in this proceeding was consistent with his statement of 5 February 2014. He added, however, that Mr Kostal and Mr Miller were very agitated and very angry, and that he told them to calm down. The thrust of what he told them, according to his evidence, was that, so long as they produced their paperwork, they would be able to start work on the site. But they appeared unwilling to take that advice. According to Mr Adamopoulos, "countless times" Mr Kostal and Mr Miller were told, by a number of those present, to send in their SWMS, but their responses were "F this", "No, we're over this," and "We're calling Fair Work." 43 To this point, the project to have Mr Kostal and Mr Miller inducted for work at the site had reached a stalemate. It seems clear that the CFMEU's refusal to give Abseal a rope access enterprise agreement was the focus of Mr Kostal's agitation with Merkon site management. To the extent that Mr Karamitos was present in the site office over the period to about 9.30 am (that itself being the subject of some uncertainty in the evidence), he said little or nothing about that, save, I suppose, to make no secret of the fact that he was persisting in his attempts to contact Mr Christopher to find out about it. However much sympathy Mr Stoimenovski and Mr Adamopoulos might have had for Mr Kostal's position, for so long as the Abseal SWMS was missing, they could do nothing to help him. It is also clear that, by about this time, Mr Kostal had made his threat to contact "Fair Work", that is, the Inspectorate. 44 A number of things happened at, or shortly after, 9:30 am. First, by practice on this site, that was the time when the morning smoko commenced. Secondly, at 9:33 am Ash Logan, the Merkon Contracts Administrator for the project, received the Abseal SWMS as an attachment to an email. And thirdly, Mr Karamitos finally (on his evidence) succeeded in speaking by telephone to Mr Christopher. I should say something about each of those things. 45 In his evidence, Mr Karamitos said that he took his smoko break in the normal way, and at the normal time. He used that circumstance to put a definite end-point on the period during which he might have been interacting with Mr Kostal and Mr Miller. After the passage of nearly three years, and with no contemporaneous record to assist him, I would not accept that Mr Karamitos was able to affirm 9:25 am, rather than 9:35 or 9:45 am, for example, as the point at which he ceased to have such interactions. But the start of smoko gave him a point of reference, as it were, to make the necessary discriminations. 46 With respect to the email received by Mr Logan at 9:33 am, if there is one thing which is clear in an otherwise confusing pattern of evidence about the transactions in the site office on 20 November 2013, it is that Mr Kostal knew that Abseal had sent its paperwork by email to Mr Panos. That knowledge, I infer, strengthened his suspicion that the so-called problem about the absence of the paperwork was only a subterfuge for what were the real reasons why Mr Karamitos refused to induct Mr Miller and himself. But everyone else present had only Mr Kostal's word for it that the paperwork had been sent to Mr Panos. Representatives of Merkon were insisting that Mr Kostal could put this whole issue to rest by arranging to have the paperwork emailed to the site office then and there. At some point, although not initially, Mr Kostal did follow that advice. He told the inspectors that he rang his bookkeeper to have the SWMS emailed through to Merkon, but, when she received his call, she was not in her office. She immediately went there and sent the email to Mr Logan forthwith. But that did not lead to Mr Kostal and Mr Miller being inducted, or commencing work, at the site. 47 Telephone records indicate that Mr Karamitos called Mr Christopher at 9:36 am, and that the call lasted about two minutes. In his evidence, Mr Karamitos said that he told Mr Christopher that – … these guys [are] coming onto the job site, I asked them for their SWMS, insurances and work tickets. They're going on about an EBA and wanting to get a specialised rope access EBA, threatening to get Fair Work involved and all this business. And I told him this over the phone. And his response was, "Thanks, Nick, for letting me know. Don't stress." And he said to me, "You've done nothing wrong by asking for their SWMS and insurances." That was it. Mr Karamitos said that the only reason that he rang Mr Christopher at 9:36 am was as "a courtesy call" to let him know what was going on. There is reason to be doubtful about that evidence, or at least to entertain such a doubt alongside Mr Karamitos' evidence that he had not previously spoken to Mr Christopher that day. 48 According to Mr Karamitos, his initial purpose for wanting to speak to Mr Christopher – which he first attempted to do at 8:10 am – was to find out more about the rope access enterprise agreement that was the focus of Mr Kostal's interest on 20 November 2013. He (Karamitos) confirmed that Mr Kostal and Mr Miller told him that they were happy to become up-to-date current financial members if Mr Edwards "gave" them such an agreement. Then, in the site office, Mr Karamitos heard Mr Kostal and Mr Miller "talking about Fair Work". In his evidence, he said that he regarded that as "pretty serious stuff", and thought he should let the CFMEU know. In the telephone conversation with Mr Christopher which followed, there was, however, no discussion about the rope access enterprise agreement. Mr Karamitos told Mr Christopher about the flow of conversation which he had had with Mr Kostal and Mr Miller, but Mr Christopher's response was only as indicated in the previous paragraph above. If Mr Karamitos' evidence is to be believed, at the end of his conversation with Mr Christopher he still did not know any more about the rope access agreement than he had at the outset. On one view of the matter, that is unlikely to have represented the reality of the matter. 49 On another view of it, however, Mr Karamitos' conversation with Mr Christopher occurred only three minutes after the nominal time of the email from the Abseal bookkeeper. By that time, according to Mr Karamitos, he was no longer in the site office. His understanding of the situation was that, whatever problems might have been presented by the absence of the rope access enterprise agreement, the fact that the Abseal workers did not have an SWMS was fatal to their prospects of being inducted to work on the site that day. It is well within the bounds of reasonable possibility that, even if he had, at some point, been given to understand by Mr Christopher that the workers should not be allowed to commence work in the absence of such an agreement, they both well understood that, so long as there was no SWMS to hand, everything else was moot. The absence of the SWMS in effect overtook Mr Karamitos' need to come to grips with the rope access enterprise agreement question. If this were indeed the reality of the position as between Mr Karamitos and Mr Christopher, it would provide a rational explanation for the essence of their conversation having been as set out above. 50 So much for the events down to about 9:40 am. For reasons which remained unexplained, it was not until 10 am on 20 November 2013 that Mr Kostal and Mr Miller actually signed the hard copy of the SWMS which had been sent at 9.33 am. There is no evidence about, and I do not believe that I am in any position to take judicial notice of, the relationship between the time stated on the email and the time at which it was actually received in Mr Logan's inbox. Neither is there any evidence of Mr Logan's whereabouts, and activities, over the whole of the period with which I am now concerned, although there was evidence that he was in the site office for at least some of that period. Mr Logan himself did not give evidence, and I have no reason to assume that he had no work requirements that morning other than the ones which, in the rather artificial environment of a proceeding in court, now appear so important. The fact is that the SWMS was not signed until 10 am, but it undoubtedly was then signed. Why did the inductions of Mr Kostal and Mr Miller not then proceed? This has become, regrettably, the $64 question. 51 As to that question, Mr Adamopoulos, who was called by the respondents, was cross-examined by counsel for the applicant with reference to Abseal's email of 9:33 am as follows: You can see on the email it indicates that there's an attachment to the email?---Yes. And then the pages that follow - - -?---Yes. - - - could I ask you to have a look at that; you recognise that sort of template of document, don't you?---Yes. It's SWMS document, isn't it?---Yes. In the usual form?---Yes. A form that's acceptable to you as a site foreman at Merkon many times?---Yes. Yes. And at the last page of that – can I ask you to have a look at the last page – you will see that Mr Kostal and Mr Miller have signed it?---Yes. And it's dated 20 November?---Yes. And that's the day that we're talking about, isn't it?---Yes. And the time that they sign it – you see how they've made a notation there – it's 10 am?---Yes. Yes. And you will know, from your long experience, that what – that what's required of subbies, when they come onto the site, is to produce the SWMS?---Correct. Ideally, they've sent it through earlier so that your people can review it - - -?---Correct. - - - if necessary?---Correct. And to get through the induction and to clear for work, we need a printout, and we need it signed by the subcontractors?---Correct. And that's you risk management, isn't it, because it shows that they've signed up to agree to work to a particular safe working method?---Yes. And you can hold them to that?---Yes. And that's part of Merkon's overall safety plan?---And the insurances. Yes. Exactly?---Yes. Together. And, by the looks of that - - -?---Yes. - - - they have met Merkon's requirements in that regard?---Yes. Yes. So at 10 am there's no barrier to Abseal proceeding to work on the site, on that document, is there?---No. That is to say, the email having been received and the SWMS having been signed, Mr Kostal and Mr Miller could, and should, then have been inducted. 52 In Mr Kostal's interview with the inspectors on the afternoon of 20 November 2013, he said that, once the SWMS had been signed, Mr Karamitos then said that he (using the third person, Mr Kostal actually said "they", by which Mr Karamitos was presumably referring to Mr Panos and/or himself and/or whoever else at Merkon was responsible for such matters) needed "48 hours to review it." For this to have been the case, of course, would have been directly inconsistent with Mr Karamitos' evidence that he was not present either when the SWMS came through by email or when it was later signed. Although Mr Karamitos was challenged at a high level about much of the evidence which he gave, this evidence in particular was not undermined at the level of detail. What Mr Kostal himself said to the investigator was that the "final outcome" of his meeting with Mr Stoimenovski was that it was he who said: "You guys can't start here because of this, you know, the shop steward not being there with the paperwork to review it." 53 With respect to Mr Miller, I would take up where I left off at para 48 above, namely, with Mr Karamitos having been on the phone to Mr Christopher, the result of which was that he (Miller) and Mr Kostal were not to start work that day. In his interview with the inspectors, Mr Miller continued: [A]nd then when we did inform him that Fair Work would be notified and would be taking this problem further to get him down there they then came back with a story that our [SWMS] hadn't been revised, which – they required 48 hours to revise [SWMS]. From this very compendious statement, it is difficult to sense the order of things, but one possibility is that the reference to "Fair Work" lines up with Mr Karamitos' own evidence, referred to above, that it was Mr Kostal and Mr Miller "talking about Fair Work" that prompted him to call Mr Christopher at 9:36 am. If so, and if it was indeed Mr Karamitos who "came back with a story" that it would take 48 hours to review the SWMS, unless that story itself amounted to a chimera, the applicant's case in this proceeding would not be much advanced. 54 The question why, once the SWMS had been received by Merkon and signed by Mr Kostal and Mr Miller, those workers were not immediately inducted for work on the site was not comprehensively explored in the evidence. It was Mr Karamitos' evidence that he never saw, and was not aware of, the completed SWMS. Under cross-examination, he accepted that, had the SWMS has been prepared and sent to Merkon and located, there would not have been a barrier to Mr Kostal and Mr Miller starting work. But he adhered to his evidence that, on 20 November 2013, he did not know that the Abseal SWMS had been received in the site office by email. The first he knew of that was when he was in conference with his counsel for the purposes of this proceeding. As mentioned above, counsel for the applicant did not succeed in undermining that evidence, and I accept it. 55 Utlimately, it was Mr Stoimenovski who told Mr Kostal and Mr Miller that they could not work at the site in the absence of a reviewed SWMS. Mr Stoimenovski, however, was the one player in all of this who was not called. It had been he who had told Mr Kostal that "flicking" the SWMS to Merkon would open the way to Abseal commencing work. When it did arrive and was signed, the 48-hour review requirement appeared – out of the woodwork, as it were. Mr Mercoulia's evidence was that a period of between 15 and 60 minutes might usually be required to review an SWMS. That it would take 48 hours appears not to have been a requirement imposed by Merkon, but it would seem that Mr Stoimenovski accepted it. Whether this had something to do with Mr Panos' anticipated return from sick leave is also something that was not explored in the evidence. 56 Mr Miller estimated that he and Mr Kostal left the site at about 10:30 am. Although there could be no precision in that estimate, it is uncontroversial that they did leave the site. Having originally been told by Mr Vuletic that, in the absence of the Abseal SWMS, they would have to leave the site, they had, ultimately, been unable to overcome that problem because the SWMS, when it became available, had not been reviewed by the employee to whom Merkon assigned the particular responsibility. 57 At 11:07 am on 20 November 2013 – well after Mr Kostal and Mr Miller had left the site – Mr Mercoulia returned Mr Karamitos' call (from 9:22 am, see para 40 above) and the ensuing conversation lasted nearly three minutes. In his oral evidence-in-chief, Mr Mercoulia said that Mr Karamitos told him that he had an issue with Abseal in that, among other things, it did not have union tickets or an enterprise agreement. In a statement which he signed on 16 December 2013, and which he affirmed in the witness box, Mr Mercoulia said that the "issue" as identified by Mr Karamitos was that, while Abseal did have an enterprise agreement, it was not the right one. In that statement, Mr Mercoulia also said that Mr Karamitos had told him that he did not have an SWMS from Abseal, so he could not let its workers on site. In his oral evidence, Mr Mercoulia recalled that he asked Mr Karamitos directly, "Do they have a Safe Work Method Statement?", to which he received a negative answer. He then said to Mr Karamitos, "Well, Nick, you can't let them on the site unless they have a Safe Work Method Statement". Under cross-examination, Mr Mercoulia said that, even if Mr Karamitos had raised the matters of union tickets and the enterprise agreement, he (Mercoulia) would have "let it go through to the keeper": these were not things that would have prevented these workers from coming on site. He reiterated his recollection that Mr Karamitos had said that the workers did not have an enterprise agreement or a union ticket, but "more importantly, they didn't have a SWMS." He made it quite clear that, for him, it was the absence of the SWMS that stood in the way of these workers coming on to the site, and he understood from what Mr Karamitos said to him that it was his position too. Mr Karamitos denied that he had told Mr Mercoulia that the absence of the right enterprise agreement was a reason why the Abseal workers could not be allowed on site. In his evidence, he said that, if the matter of the enterprise agreement was mentioned in this telephone conversation, it was only "in the context of how it was brought up to me by Kostal and Miller." 58 Although the terms of what Mr Karamitos was supposed to have said to Mr Mercoulia in their telephone conversation at 11:07 am were expressed in direct speech in the statement which the latter signed on 16 December 2013, the statement was not a transcript of an interview. It had been prepared for Mr Mercoulia's signature by one of the applicant's inspectors. Furthermore, by the time he had this conversation with Mr Mercoulia, Mr Karamitos had spoken to Mr Christopher, and may have understood more about rope access enterprise agreements than he did while he was actually dealing with Mr Kostal and Mr Miller. In waters which are already quite murky, there are a number of possible explanations for Mr Mercoulia's understanding of what was then Mr Karamitos' position with respect to the enterprise agreement issue, not all of which would provide support for a finding that he had in fact refused to induct these workers because Abseal was not a party to such an agreement. The applicant carries the burden of proof on this matter, and I am not satisfied that there was ever such a refusal. 59 Neither Mr Kostal nor Mr Miller lost any wages as a result of being unable to work on the site on 20 November 2013. THE APPLICANT'S CASE 60 The first way the applicant's case was put was to submit that Mr Karamitos had contravened s 346(b) of the FW Act, which provides: A person must not take adverse action against another person because the other person: … (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b)…. The "industrial activity" relied on by the applicant is the negative form of that set out in subparas (iv) and (vi) of s 347 of the FW Act, which provide as follows: A person engages in industrial activity if the person: … (b) does, or does not: … (iv) comply with a lawful request made by, or requirement of, an industrial association; or … (vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association…. 61 Under s 347(b)(iv) the applicant's case is that the industrial association was the CFMEU, and that there were two relevant requests or requirements: (1) of Mr Kostal and Mr Miller, that they pay the arrears of their membership fees; and (2) of Abseal, that it have (and here I quote from the applicant's outline filed on 28 August 2016) a "CFMEU approved specialised rope access enterprise agreement to get onto the site". Under s 347(b)(vi), the case relates only to Mr Kostal and Mr Miller, and provides as the reason for the adverse action alleged their refusal to pay a fee to the CFMEU. 62 The next way the applicant's case was put was to rely on ss 346(c) and 347(e) of the FW Act. Section 346(c) provides as follows: A person must not take adverse action against another person because the other person: … (c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g). Section 347(e) provides as follows: A person engages in industrial activity if the person: … (e) complies with an unlawful request made by, or requirement of, an industrial association…. 63 As I understand it, the applicant says that, if it should be found that Mr Karamitos' request or requirement of Mr Kostal, Mr Miller or Abseal was unlawful, s 346(c) would be engaged. 64 The next way the applicant's case was put was to submit that Mr Karamitos had contravened s 340(1) of the FW Act, which provides: (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. The "workplace right" relied on by the applicant is one or other of those specified in s 341(1)(a) of the FW Act, which provides as follows: (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body…. 65 Here the applicant's case is that Abseal had the entitlement to direct its employees conformably with a provision of the Abseal agreement to which I shall come, that this was a workplace right which it had and proposed to exercise, and that the adverse action taken against it on 20 November 2013 was taken because it had that right, or to prevent the exercise of it. 66 The final way the applicant's case was put was that Mr Karamitos' failure to induct Mr Kostal and Mr Miller amounted to discrimination contrary to s 354(1) of the FW Act, which provides as follows: (1) A person must not discriminate against an employer because: (a) employees of the employer are covered, or not covered, by: (i) provisions of the National Employment Standards; or (ii) a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or (iii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation; or (b) it is proposed that employees of the employer be covered, or not be covered, by: (i) a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or (ii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation. 67 Relying on subpara (ii) of para (a) of this provision, it was said that Mr Karamitos' discriminatory action was taken because the employees of Abseal were covered by the Abseal agreement and not covered by a specialised rope access enterprise agreement. Each was said to be "a particular kind of workplace instrument", presumably (although this was not made explicitly clear) "within a type of workplace instrument", namely an enterprise agreement approved under Pt 2-4 of the FW Act. ADVERSE ACTION 68 In so much of his case as relies on ss 340 and 346 of the FW Act, the applicant alleges that Mr Karamitos took "adverse action" against one or more of Mr Kostal, Mr Miller and Abseal within the meaning of s 342(1). The adverse action alleged to have been taken against Mr Kostal and Mr Miller is that referred to in para (b) of item 7 in the table s 342(1), namely, action that had the effect, directly or indirectly, of prejudicing them in their employment by Abseal. Under the FW Act, an "action" includes an "omission". Mr Karamitos refused to undertake the inductions of Mr Kostal and Mr Miller, and that refusal was maintained for the whole of that morning until they left the site at about 10:30 am. It may be that, after Mr Karamitos went off to smoko at about 9:30 am and thereafter had nothing to with Mr Kostal and Mr Miller, it could not be said that he "refused" to induct them, but undoubtedly he "omitted" to do so. The effect of this omission was the indirect one that Mr Kostal and Mr Miller could not commence work on the site. Notwithstanding that neither of the workers lost wages on 20 November 2013, I should regard them as having been prejudiced by not being inducted, and not working, on the site on that day: Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244, 249-250 [30]-[32]. 69 In the case of Mr Miller, that prejudice was "in [his] employment" within the meaning of item 7(b). With respect to Mr Kostal, it was submitted on behalf of the respondents that he was not the employee of Abseal. He was the managing director, but he agreed with the proposition put to him by counsel for the applicant that, when working, he did so as an employee. He took a regular weekly payment of $1,000 as wages, and supplemented that with drawings as the need arose. The question whether he was in fact and in law – ie other than as a matter of his own say-so – an employee was not examined at the detailed level, but I am satisfied that he was an employed director of his company. No doubt, when he attended directors' meetings and signed off on the minutes thereof, he was acting in his capacity as a director. But when he attended the site on 20 November 2013, intending to work on the tools alongside Mr Miller, he was doing so as an employee of Abseal. In his case too, therefore, the prejudice was "in [his] employment". 70 The adverse action alleged to have been taken against Abseal is that referred to in para (c) of item 7 in the table, namely, action that had the effect, directly or indirectly, of prejudicing Abseal in relation to a contract for services. Abseal's contract with Camillo was a contract for services, and Mr Karamitos' omission to induct Mr Kostal and Mr Miller on 20 November 2013 indirectly prejudiced it in relation to that contract. I accept the applicant's case, therefore, that Mr Karamitos took adverse action against Abseal. INDUSTRIAL ACTIVITY 71 Commencing with so much of the applicant's case as invokes subpara (iv) of s 347(b) in the context of Mr Kostal and Mr Miller as individuals, I find that Mr Karamitos did not make a request of them that related to their union dues. As I have found above, initially, he told them that he could not let them start on the site for so long as they were in arrears with their union dues. There is nothing in the evidence to suggest that Mr Karamitos requested, expressly or implicitly, that they pay the arrears. But that is not the end of the applicant's case under s 347(b)(iv) in this regard. A "requirement" may be no more than a request, but I doubt that the legislature intended to double up in this way. A "requirement" may also be "a condition which must be complied with": Oxford English Dictionary, 2nd ed, as in (this being one of the examples given in the OED), "the college entrance requirements". Being beneficial legislation, and to avoid a construction which would involve doubling up, s 347(b)(iv) should be read in a way that comprehends this sense of the word "requirement". Thus, even if Mr Karamitos made no request on the subject, if there were a condition, imposed by the CFMEU, that Mr Kostal and Mr Miller be up to date in their fees before being permitted to work on the site, that would be sufficient for the applicant's present purposes. 72 On the findings I have made, in his initial conversation with Mr Kostal and Mr Miller, Mr Karamitos adverted to such a requirement. Whether there was such a requirement, however, is a more difficult question. Usually, in cases such as this, the existence of a requirement of a trade union official is to be inferred from the fact of its enforcement, that is to say, from the observed consequences of someone not complying with the putative requirement. In the present case, that point was never reached, as the union dues issue was quickly overtaken by other matters of much greater contention. The only evidence of the requirement is what Mr Karamitos said to Mr Kostal and Mr Miller when he saw their union cards (or, if Mr Miller's evidence to the inspectors is to be taken as the point of reference, when he returned from making a telephone call). Notwithstanding the weakness of these connections, I am prepared, favourably for the applicant, to proceed on the basis that Mr Karamitos at least had such a requirement in mind when he initially spoke to Mr Kostal and Mr Miller, and was prepared to act consistently with it – to the extent that it was within his power to do so – if need be. 73 Was that the requirement of the CFMEU? Save for what was said in the conversation itself, an affirmative answer could not be provided to this question. At the time, Mr Karamitos was not acting in the service of, or performing any function for, the CFMEU: he was carrying out Merkon's inductions pursuant to the instructions of Mr Adamopoulos. Were his actions those of the CFMEU pursuant to s 363 of the FW Act? He was not a shop steward under the rules of the CFMEU, and those rules made no provision for acting, or stand-in, shop stewards. He was not otherwise an officer of the CFMEU within the meaning of s 12 of the FW Act. There is no suggestion that he had the function of dealing with Merkon on his own behalf and on behalf of other members of the CFMEU, and he was not acting in such a capacity on 20 November 2013. He was not the agent of the CFMEU. And, if there remains scope for the operation of s 793 of the FW Act in the light of the directly applicable provisions of s 363, I am also of the view that Mr Karamitos' conduct, in relevant respects, did not become the conduct of the CFMEU by the operation of that section. 74 It is true that Mr Karamitos contacted the CFMEU office, and attempted to contact Mr Christopher, by telephone, but the contact which he did make at 7:47 am did not relate to the financial status of Mr Kostal and Mr Miller, and his ignorance of the specialised rope access enterprise agreement provides an explanation for his subsequent attempts to contact Mr Christopher which is benign apropos the dimension of the applicant's case presently under discussion and which could not be rejected on the probabilities. I could not infer that Mr Karamitos was, relevantly, the agent or representative ad hoc by authority invested in him by telephone on the morning of 20 November 2013. 75 For those reasons, I do not accept the applicant's submission that it was a requirement of the CFMEU that Mr Kostal and Mr Miller have made good their arrears of union dues before they commenced work on the site on 20 November 2013. It follows that I reject the applicant's case that Mr Kostal and Mr Miller engaged in industrial activity within the meaning of s 347(b)(iv) of the FW Act. 76 It is, however, clear beyond argument that each of Mr Kostal and Mr Miller did not pay a fee to the CFMEU within the meaning of s 347(b)(vi). To this extent, they engaged in industrial activity. 77 I consider next the second request or requirement alleged in the applicant's case, namely, that Abseal have a specialised rope access enterprise agreement as a precondition to its employees working on the site. There could be no suggestion that the CFMEU, either by way of Mr Karamitos or otherwise, requested Abseal to enter into such an agreement: indeed, it was Mr Kostal who wanted such an agreement and, even on the applicant's case, the CFMEU would have none of it. But did Mr Karamitos impose a requirement that there be such an agreement? At the outset, he did not understand what an agreement of that kind was. On the findings I have made, he had come to some level of understanding about that before telephoning Mr Vuletic at 8:01 am, but the evidence is too diffuse to justify the conclusion that he had made it a requirement of proceeding to induct Mr Kostal and Mr Miller to work on the site. Contemporaneously with telling those workers that their existing enterprise agreement was not appropriate, Mr Karamitos informed them of what was, as it were, an absolute deal-breaker apropos their induction: the absence of the SWMS. That was, thereafter, the requirement which governed Mr Karamitos' interactions with them. 78 For those reasons, I do not accept the applicant's submission that Mr Karamitos imposed a requirement about the kind of enterprise agreement which Abseal was required to have before its workers would be inducted for work on the site. It follows that I reject the applicant's case that Abseal engaged in industrial activity within the meaning of s 347(b)(iv) or (e) of the FW Act. WORKPLACE RIGHT 79 It is established on the pleadings that the employees of Abseal were covered by the Abseal agreement, and that cl 6 and App G of that agreement relevantly incorporated the following provisions of the National Building and Construction Industry Award 2000: 12.1.1 An employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training consistent with the classification structure of this award provided that such duties are not designed to promote de-skilling. 12.1.2 Any direction issued by an employer shall be consistent with the employer's responsibilities to provide a safe and healthy working environment. The applicant's case is that Abseal had the entitlement to direct its employees conformably with cl 12.1.1, that this was a workplace right which it had and proposed to exercise, and that the adverse action taken against it on 20 November 2013 was taken because it had that right, or to prevent the exercise of it. 80 These provisions of the award are plain enough on their face, although, against a setting in which the contract of employment would always give the employer the right to "direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training", they may, in practice, amount to little more than a euphemistic way of saying that a direction of that kind may not be given where it would not be "consistent with the classification structure of this award", where it would be "designed to promote de-skilling" or where it would not be "consistent with the employer's responsibilities to provide a safe and healthy working environment". In submissions made in the present case, counsel for neither side gave attention to the scope and connotation of these provisions. 81 Doing the best I can, I accept the applicant's submission that these provisions set up a benefit to which Abseal was entitled. DISCRIMINATION 82 It might be noted that s 354 does not use the language commonly associated with anti-discrimination legislation, namely, that which proscribes discrimination on a particular ground. Such legislation takes the primary meaning of discrimination – the making or recognition of a distinction, or the treatment of particular persons, things or situations in a different way – and makes it unlawful by reference to the ground, or basis, upon which the distinction etc was made. Section 354, by contrast, takes the discriminatory conduct as the first of two elements in the prohibition, and requires also that the conduct have been engaged in for a stated purpose. In my view, in s 354 the verb "discriminate", in this context, is used in the sense of treating the person concerned – the employer – in a prejudicial way. In terms, the conduct does not have to be "adverse action" as such but, if the employer happens also to be an independent contractor, the test for discrimination is closely aligned with the terms of item 7(c) of the table in s 342(1) of the FW Act. 83 By failing to induct Mr Kostal and Mr Miller, Mr Karamitos discriminated against Abseal in this sense. MR KARAMITOS' REASONS 84 Was the adverse action taken against Mr Kostal and Mr Miller because they did not pay a fee to the CFMEU, as required by s 346(b)? Here it is not necessary that their engagement in industrial activity have been the only, nor even the predominant, reason for the action. By s 360, it is sufficient if it was a reason, although it must have been "operative": Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, 542 [127] and 544 [140]. In his evidence, Mr Karamitos denied that he had prevented Mr Kostal and Mr Miller working on the site on 20 November 2013 because they had not paid their union dues. I accept that denial. It is true that, strictly, this evidence does not engage with the adverse action as I have found it to have occurred, in the sense that Mr Karamitos did not prevent Mr Kostal and Mr Miller from working, he omitted to induct them. But, in point of substance, Mr Karamitos' denial does go the heart of the matter, and I take it into account, along with the objective surrounding facts, in my determination of his actual reason or reasons for omitting to induct these workers. Notwithstanding that he mentioned the likely consequences of these workers being behind in their dues at the outset, it never became a reason why he acted, by omission, in this way. To the extent that he deferred the induction, he did so for the purpose of finding out about the rope access enterprise agreement that had been at the centre of Mr Kostal's representations. At the same time as he did so, he became aware that Abseal's paperwork was missing. It was the latter aspect, and that aspect alone which thereafter stood in the way of Mr Kostal and Mr Miller being inducted. 85 Because I have rejected the applicant's case that Abseal engaged in industrial activity, there is no occasion to consider whether such an enagement was the reason why Mr Karamitos took adverse action against Abseal within the meaning of paras (b) or (c) of s 346 of the FW Act. 86 But I have found that Abseal had a workplace right within the meaning of s 341(1)(a), and the question arises whether the adverse action taken by Mr Karamitos against Abseal was taken because of that right. I would hold not. The facts of the case are utterly devoid of any suggestion of a connection, in Mr Karamitos' thinking, between his omission to undertake the inductions of Mr Kostal and Mr Miller and the benefit arising under cl 6 and App G of the Abseal agreement which applied to the employment of them. 87 Finally, with respect to s 354, did Mr Karamitos discriminate against Abseal because Mr Kostal and Mr Miller were covered by the Abseal agreement and not covered by a specialised rope access enterprise agreement? On the findings I have made, the answer to this question must be in the negative: the agreement coverage matter was never an operative reason why Mr Karamitos did not induct Mr Kostal and Mr Miller. DISPOSITION OF THE PROCEEDING 88 It follows that the applicant's case against Mr Karamitos must be rejected in each of its formulations. Since his case against the CFMEU was wholly derivative, that case too must be rejected. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 19 January 2017