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

FEDERAL COURT OF AUSTRALIA

Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451 File numbers: NSD 596 of 2017 NSD 1594 of 2017

Judge: LEE J

Date of judgment: 2 April 2019

Catchwords: EVIDENCE – state of satisfaction required by s 140 of Evidence Act 1995 (Cth) – application of principles to civil penalty proceedings – probabilities derived from contemporaneous documents – significant amount of evidence not challenged – forensic decision not to adduce evidence in the respondents' case – Jones v Dunkel inference – failure to call witness cannot make up deficiency of evidence – where evidence is not contradicted any inference favourable to that party might be more confidently drawn where a person capable of putting the true complexion on the facts has not been called – no explanation provided regarding the failure to call any witnesses in the respondents' case INDUSTRIAL LAW – contraventions of ss 417, 421, 340 of the Fair Work Act 2009 (Cth) – where Union organised unprotected industrial action – interpretation of enterprise agreement – having regard to industrial purpose of agreement – where Union alleged employees were directed to work differently – relevance of dispute resolution procedure – superficial change to aspects of the work insufficient – whether suspected breach of enterprise agreement sufficient to engage protection from industrial action – no reasonable basis for belief of breach – contravention of 340 – whether industrial action constituted adverse action – the right to have employees perform work as required by the employer is a benefit under a workplace instrument – necessity of proving intent – no evidence adduced to discharge onus – sufficient if one reason of many is unlawful – belief that conduct was lawful does not make it so – alleged contravention of s 343 – particularly serious form of industrial misconduct – allegation made without detailed argument as to why such a contravention should be found – Court should receive further assistance on this issue