Federal Court of Australia Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 156 File number: VID 23 of 2021 Judgment of: WHEELAHAN J Date of judgment: 3 March 2023 Catchwords: INDUSTRIAL LAW – alleged contraventions of ss 348 and 349 of the Fair Work Act 2009 (Cth) by union and union representative at the site of the Melbourne Quarter project – applicant claimed that the representative told a caulking subcontractor during a site induction that the subcontractor could not work on the site unless he paid outstanding union fees – where evidence of key witnesses differed as to what was said during the induction – examination of contested evidence – evidence of the employees of the subcontractor generally accepted – contraventions established Legislation: Evidence Act 1995 (Cth) ss 64(4), 97, 140 Fair Work Act 2009 (Cth) ss 336, 343, 345 347, 348, 349, 361, 361, 701, 793 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), Schedule 1, Part 3, item 323 Cases cited: Adcock v Blackmores Ltd [2016] FCCA 265; 259 IR 209 Adcock v Blackmores Ltd [2016] FCA 893 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) [2017] FCA 1398 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Syme Library Case) [2018] FCA 1142 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 Australian Building and Construction Commissioner v Molina [2020] FCAFC 97; 277 FCR 223 Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196 Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 1) [2021] FCA 1153 Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 2) [2021] FCA 1210 Australian Federation of Air Pilots v Regional Express Holdings Ltd [2021] FCAFC 226; 290 FCR 239 Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215; 273 FCR 332 Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268 Banditt v The Queen [2005] HCA 80; 224 CLR 262 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Broadhurst v The Queen [1964] AC 441 Browne v Dunn (1893) 6 R 67 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 Esso v Australian Workers' Union [2017] HCA 54; 263 CLR 551 Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 Fox v Percy [2003] HCA 22; 214 CLR 118 Harris v Warre (1879) 4 CPD 125 Newton v Australian Postal Corporation (No 2) [2019] FCA 2192; 292 IR 396 R v Jovanovich (1997) 42 NSWLR 520 R v Uhrig (unreported, NSW Court of Criminal Appeal, 24 October 1996) Seltsam v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140 State Rail Authority of New South Wales v Earthline Constructions Ltd (in liq) [1999] HCA 3; 160 ALR 588 Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 Watson v Foxman (1995) 49 NSWLR 315 Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 245 Date of hearing: 21-23 September, 4-7 October 2021 Counsel for the Applicant: Mr M Follett Solicitor for the Applicant: Lander & Rogers Counsel for the Respondents: Mr P Boncardo and Ms E Beljic Solicitor for the Respondents: Maurice Blackburn ORDERS VID 23 of 2021 BETWEEN: FAIR WORK OMBUDSMAN Applicant AND: JASON ROACH First Respondent CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Second Respondent order made by: WHEELAHAN J DATE OF ORDER: 3 March 2023 THE COURT ORDERS THAT: 1. By 4.00 pm on 17 March 2023, the practitioners for the parties are to confer and submit to the Chambers of the Hon Justice Wheelahan via email proposed draft orders in relation to the further conduct and disposition of this proceeding. 2. If the parties are unable to agree on a single form of draft orders, then by 4.00 pm on 17 March 2023, each party is to submit their respective proposed draft orders. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT WHEELAHAN J: Introduction 1 The applicant seeks declarations and the imposition of civil penalties in respect of claimed contraventions by the respondents of s 348 and s 349 of the Fair Work Act 2009 (Cth) (FW Act). The proceeding was commenced by the Australian Building and Construction Commissioner as applicant. On 12 December 2022, and following the commencement of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), Schedule 1, Part 3, item 323, by order of the Court the name of the applicant was changed to the Fair Work Ombudsman who by operation of item 323 was substituted for the Commissioner as a party to the proceeding. See also FW Act, s 701, which provides that the Fair Work Ombudsman is a Fair Work Inspector. 2 The respondents are, first, Mr Roach, who was at the relevant time employed by Lendlease Building Contractors Pty Ltd (Lendlease). Lendlease was engaged in the construction of a development at Docklands in Melbourne known as the Melbourne Quarter project. Mr Roach was a health and safety representative at the site, and was a delegate of the second respondent, the Construction, Forestry, Maritime, Mining and Energy Union (the Union). 3 The essence of the applicant's case relates to two individuals, Mr Brendon Watterston and Mr Stephan Simone, who attended the site on 20 April 2020 to undertake caulking work. The case turns on what was said by Mr Roach to Mr Watterston on site on that day in one conversation. The applicant alleges that following an induction at the site conducted by Lendlease, Mr Roach threatened to prevent, or prevented, Mr Watterston from working at the site on that day on the ground that he had not paid a fee of about $500 that was claimed to be due to the Union. The applicant also alleges that by his words and conduct Mr Roach represented to Mr Watterston that in order to perform work on the project, he had to pay membership subscriptions, levies, or dues to the Union. Mr Roach and the Union deny the applicant's claims. 4 As a result of Covid-19 related restrictions, the hearing of the proceeding took place remotely over a number of days on Microsoft Teams, with counsel, witnesses, and the Court, in separate locations. During the course of the hearing, there were some challenges presented by equipment malfunctions and streaming issues. The hearing went beyond the estimated duration, but this is no criticism of counsel, who conducted their respective cases as efficiently as the circumstances allowed, and who are to be commended for the assistance that they gave to the Court. The legislation 5 Before turning to the background to this proceeding, I will refer to the statutory provisions that the applicant claims the respondents contravened, namely s 348 and s 349 of the FW Act. The interpretation and operation of the corresponding provisions in s 343 and s 345 of the FW Act were considered by the Full Court in Australian Federation of Air Pilots v Regional Express Holdings Ltd [2021] FCAFC 226; 290 FCR 239 (Bromberg, Kerr and Wheelahan JJ) (AFAP v Rex) at [126], [128] and [170]. 6 Section 348 of the FW Act provides – 348 Coercion A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity. 7 Section 348 refers to "intent to coerce". Coercion itself requires the satisfaction of two elements: (1) the negation of choice; and (2) the use of unlawful, or illegitimate, or unconscionable means to exert pressure to negate the choice: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 (ABCC v Hall) at [25] (Tracey, Reeves and Bromwich JJ), concerning the corresponding provision in s 343; cf, Esso v Australian Workers' Union [2017] HCA 54; 263 CLR 551 at [61] (Kiefel CJ, Keane, Nettle and Edelman JJ). The intent aspect of the expression "intent to coerce" in s 348 applies to the negation of choice element referred to in the authorities, but not to the use of unlawful, or illegitimate, or unconscionable means, which is an objective element: ABCC v Hall at [25]-[26]; Newton v Australian Postal Corporation (No 2) [2019] FCA 2192; 292 IR 396 (Newton) at [27]-[29] (Bromberg J). As Bromberg J explained in Newton at [29], the illegitimate or unconscionable means must be proven by an applicant. The evidentiary presumption in s 361(1) of the FW Act applies only to the negation of choice element of an allegation of a threat to take action with an intent to negate choice by unlawful, illegitimate of unconscionable means for the purposes of an alleged contravention of s 348, and extends to a threat to take action: Australian Building and Construction Commissioner v Molina [2020] FCAFC 97; 277 FCR 223 at [51]-[52], [91]-[93] (Bromberg, Colvin and Abraham JJ). 8 Section 349 of the FW Act provides – 349 Misrepresentations (1) A person must not knowingly or recklessly make a false or misleading representation about either of the following: (a) another person's obligation to engage in industrial activity; (b) another person's obligation to disclose whether he or she, or a third person: (i) is or is not, or was or was not, an officer or member of an industrial association; or (ii) is or is not engaging, or has or has not engaged, in industrial activity. Note: This subsection is a civil remedy provision (see Part 4-1). (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. 9 The phrase "engage in industrial activity" appearing in s 349(1)(a) is defined by s 347 to include becoming or remaining a member of a union (s 347(a)) and paying a fee to a union (s 347(b)(vi)). 10 The word "obligation" is not defined in the FW Act. However, it has been held that having regard to the objects of Part 3-1 of the FW Act, which include the protection of freedom of association, the word "obligation" in s 349(1) is not to be narrowly construed so as to refer only to a legal obligation: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) [2017] FCA 1398 at [45] (Tracey J). An illustration of the application of this interpretation is Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Syme Library Case) [2018] FCA 1142, where Tracey J held that that a representation that there was an obligation on a contractor to enter into an enterprise agreement approved by the Union before commencing work on city sites was a misrepresentation that engaged s 345 and s 349 of the FW Act. 11 The "knowingly or recklessly" element in s 349 is concerned with the false or misleading quality of the representation, not the act of making the representation: AFAP v Rex at [126] (Bromberg, Kerr and Wheelahan JJ). What is required is that a false or misleading representation is made knowing it to be false or being recklessly indifferent as to its truth: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 at [161] (Logan, Bromberg and Katzmann JJ). An allegation that a person made statements knowing them to be false invokes the idea that is expressed in the tort of deceit: Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 at [22] (French CJ, Gummow, Hayne and Kiefel JJ); see also, Banditt v The Queen [2005] HCA 80; 224 CLR 262 at [1]-[3] (Gummow, Hayne and Heydon JJ) in relation to the term "reckless". The pleaded case 12 It was not in dispute that Mr Watterston and Mr Roach spoke to each other on the morning of 20 April 2020 in the lunchroom at the site following the conclusion of an induction session conducted by Lendlease. The exact circumstances of the exchange, and the words spoken were in dispute. By the statement of claim the applicant alleged – 7. After the conclusion of the induction at around 8.30 am, Watterston and Simone proceeded to the lunchroom and: (a) Roach called Watterston and Simone over to where he was and asked them to take a seat; (b) Roach asked Watterston and Simone whether they had their "cards"; and (c) Roach checked certain details associated with the cards provided by Watterston and Simone on his mobile phone and by making a telephone call. 8. After checking the details as alleged in paragraph 7(c) herein, a conversation between Roach and Watterston to the following effect then occurred: Roach: "it says you owe $500"; Watterston: "I don't want to pay that"; Roach: "well if you don't pay the $500 you can't work here"; Watterston: "Really, I can't work here?" Roach: "yep"; Watterston: "So you're telling me that unless I pay that $500, I can't work on site?"; and Roach: "Nope, not until you pay your $500". 13 The legal consequences of the words that the applicant alleged Mr Roach spoke to Mr Watterston, being contraventions of s 348 and s 349 of the FW Act, were alleged as follows – Section 348 of the FW Act 9. In acting as alleged in paragraph 8 herein, Roach: (a) threatened to prevent Watterston performing any work on the Project that day; and/or (b) prevented Watterston performing any work on the Project that day. PARTICULARS The threat was partly oral and partly implied. Insofar as it was oral, it was constituted by the things said by Roach as alleged in paragraph 8 herein. Insofar as it was implied, it was implied from the matters alleged in paragraphs 7-8 herein and the surrounding circumstances, including those particularised under paragraph 10 herein. Roach prevented Watterston performing work as he did not pay the fee and hence, he was prevented by Roach from performing any work at the Project that day and he subsequently left the site. 10. Roach acted as alleged in paragraph 8 herein with the intention of negating the choice (and thereby coercing) Watterston to pay membership subscriptions, levies and/or dues to the CFMMEU and thereby engage in industrial activity within the meaning of section 347(b)(vi) of the FW Act. PARTICULARS The intention to negate the choice of (and thereby coerce) Watterston is to be inferred from the whole of the surrounding circumstances, including in particular the following: (i) the matters alleged in paragraphs 7-8 above; (ii) the likely consequence to Watterston (and his business) of being prevented access to the Project to perform work; (iii) the fact that Roach did not say anything similar to Simone, after Simone produced a CFMMEU membership card indicating that he was a "Retired Member"; (iv) his role as a delegate for the CFMMEU at the Project; and (v) his presence in the lunchroom immediately after the induction of Watterston and Simone onto the Project that morning. Further and to the extent necessary, the applicant also relies on sections 360 and 361 of the FW Act. 11. The action threatened and/or taken as alleged in paragraph 9 herein was: (a) unlawful; and/or (b) illegitimate; and/or (c) unconscionable. PARTICULARS The action was unlawful to the extent that it amounted to a contravention of section 349 of the FW Act, and to the extent that it amounted to an interference in the performance of Melbourne Caulking's contract with Geschke, or Watterston's contract of employment with Melbourne Caulking. The action was illegitimate for the above reason and because Roach had no legal right to prevent Watterston attending the Project to perform work, and because it was inconsistent with the principles of freedom of association, including the freedom to become, or not become, a fully financial member of the CFMMEU. The action was unconscionable in that it was inconsistent with norms and standards of conduct in an industrial setting, including the principles of freedom of association, and because it was disproportionate to any legitimate interest in the demands of Roach which the relevant threats/action supported. 12. By reason of the matters alleged in: (a) paragraphs 9(a), 10 and 11 herein, Roach contravened section 348 of the FW Act; and/or (b) paragraphs 9(b), 10 and 11 herein, Roach contravened section 348 of the FW Act. 14 The applicant relied on the rebuttable presumption in s 361 of the FW Act to establish that Mr Roach made the threat for the impugned purpose of intending to coerce Mr Watterston to pay membership subscriptions, levies and/or dues to the Union. 15 In relation to the claim of contravention of s 349 of the FW Act by making misrepresentations, the applicant made the following allegations in the statement of claim – Section 349(1) of the FW Act 13. In acting as alleged in paragraph 8 herein, Roach made a representation to Watterston to the effect that in order to perform work on the Project, including the work he had attended to perform that day, he had to pay membership subscriptions, levies and/or dues to the CFMMEU. PARTICULARS The representation was partly oral and partly to be implied. To the extent it was oral, it was constituted by the conversation alleged in paragraph 8 herein. To the extent it was implied, it was implied from Roach's conduct at or around the time as alleged in paragraphs 7 and 8 herein and the context in which the conversation occurred, including occurring immediately after Watterston's first site induction on the Project. 14. The representation alleged in paragraph 13 herein was about the obligation of Watterston to pay membership subscriptions, levies and/or dues to the CFMMEU and thereby engage in industrial activity within the meaning of section 347(b)(vi) of the FW Act. 15. The representation alleged in paragraph 13 herein was false and/or misleading. PARTICULARS There was no contractual, legislative or other obligation or requirement on Watterston to pay fees to the CFMMEU and thereby become a financial member of the CFMMEU, before being entitled or allowed to perform work on the Project. 16. Roach made the representation alleged in paragraph 13 herein: (a) knowing that it was false and/or misleading; or (b) reckless as to whether it was false or misleading. PARTICULARS Roach's state of mind is to be inferred from his status as a CFMMEU member and CFMMEU delegate and his work history in the building and construction industry. Further particulars will be provided closer to trial. 17. By reason of the matters alleged in paragraphs 13-16 herein, Roach contravened section 349(1) of the FW Act. 16 The applicant relied on s 363 and s 793 of the FW Act to allege that the Union was liable for the actions of Mr Roach. 17 By their amended defences, the respondents denied the conversation alleged in [7] of the statement of claim, and alleged that Mr Roach and a Mr Jones, who was a health and safety representative of the plumbers at the site, spoke to workers as a group following the conclusion of the Lendlease induction, following which they proceeded to check the workers' cards. In relation to Mr Watterston, the amended defences at [7] alleged the following – … r. The First Respondent proceeded to check Watterston's Incolink, CBUS and Coinvest details via applications on his mobile phone, which show whether people are properly registered with each and whether contributions on their behalf are paid up; s. The applications showed that Watterson's Incolink, CBUS and Coinvest contributions were up to date; t. Because Watterston said his union ticket was outdated, the First Respondent checked the financial status of his membership on the Second Respondent's website; u. The website showed that Watterston's financial status was 'invalid'; v. The First Respondent telephoned the Second Respondent's offices to ask what this meant and was advised that Watterston had called and cancelled his union ticket in February 2020; w. The First Respondent told Watterston that the union was saying he cancelled his ticket in February; x. Watterston told the First Respondent he had paid $200 to reinstate his membership a couple of days ago; y. The First Respondent told this to the person he was speaking to at the Second Respondent's offices and was advised that they had no record of Watterston paying $200; z. The First Respondent asked Watterston if he could remember who he paid it to and Watterston said that he could not; aa. The First Respondent said to Watterston that he should ring or go into the union office because they were telling him he had cancelled his ticket in February and that the $200 was missing as the union office had no record of him paying it; bb. Watterston said he was 'sick of you [c*nts]' and told the First Respondent to 'Give me my [f*cking] tickets'; cc. Watterston then snatched his tickets from the table and left the lunchroom; dd. After Watterston left the lunchroom, the First Respondent continued checking tickets of other Group members. 18 The respondents denied that Mr Roach made the representation alleged, but in the alternative alleged at [16(c)] a defence relying on s 349(2) of the FW Act – further and in the alternative, says that Watterston would not be expected to rely on the misrepresentation pleaded in paragraph 13 and that in the event that the representation was contrary to s 349(1) of the Fair Work Act 2009 (Cth) (FW Act), s 349(2) of the FW Act would determine that s 349(1) of the FW Act would not apply. 19 In its amended defence, the Union denied that Mr Roach had contravened s 348 or s 349 of the FW Act, and otherwise made no admissions as to its own liability for the actions of Mr Roach. However, in submissions counsel for the respondents accepted that if the contraventions by Mr Roach were established, then the Union would be liable as a result of the attribution of his conduct and state of mind to the Union by s 363 or s 793 of the FW Act. Background 20 Mr Watterston and Mr Simone were employed by a company, Melbourne Caulking Pty Ltd, which Mr Watterston described in evidence as a partnership between him, Mr Simone, and their wives. 21 Mr Watterston had been a member of the Union for a number of years. On 24 September 2019, Mr John Setka, the State Secretary of the Construction and General Division of the Union, sent an email to Mr Watterston with a reminder that membership fees of $1001 were due by 1 October 2019. The email stated that if Mr Watterston was no longer working in the industry, he should contact the Union's head office, or reply to the email in order to place his membership on hold. On 25 September 2019, Mr Watterston's wife sent an email on his behalf stating that since the beginning of the year he was no longer working in the industry, and that he would no longer be a union member. Mr Watterston gave evidence that he was then required to make a payment to the union of $412.50, which was made on 28 October 2019, and which was his last payment. 22 On 9 April 2020, Melbourne Caulking was engaged by Geschke Pty Ltd (Geschke Plumbing), which was a plumbing subcontractor of Lendlease, to perform some caulking work at the Melbourne Quarter project site. At about the time of the engagement, Mr Watterston spoke to Mr Shannon Silver of Geschke Plumbing concerning whether the absence of union membership presented a problem. Following this conversation, Mr Silver sent an email to Mr Watterston stating that he had confirmed with Lendlease "that being in the union is not a necessity in order to gain access to the site". Arrangements were made by Geschke Plumbing for Mr Watterston and Mr Simone to attend the site at 7.30 am on Monday 20 April 2020, and for them to attend an induction, which they did. What occurred immediately following the induction is contentious and is the subject matter of the applicant's claims of contravention of the FW Act by the respondents. The evidence 23 Seven witnesses were called. All witnesses gave viva voce evidence-in-chief and were cross-examined. The following witnesses were called by counsel for the applicant – (a) Mr Watterston; (b) Mr Simone; (c) Mr Bradley Golz, who was an employee of Geschke Plumbing; and (d) Ms Ruth Dunsby, who was at the relevant time an inspector employed by the Australian Building and Construction Commission (the Commission). 24 Counsel for the respondents called three witnesses – (a) Mr Roach, the first respondent; (b) Mr Kerry Jones, who was an occupational health and safety representative for the plumbers at the site; and (c) Ms Bridie Murphy, a solicitor who had acted for Mr Roach when the matter was investigated by Lendlease and the Commission. Telephone records 25 Before addressing the evidence of the witnesses, I will set out the agreed facts concerning telephone calls made by Mr Watterston, Mr Golz, Mr Silver, and Mr Roach on 20 April 2020, based upon telephone records – 7:09 am Watterston called Golz for 103 seconds (1 minute, 43 seconds) 7:12 am Golz called Watterston for 22 seconds 7:22 am Silver called Golz for 153 seconds (2 minutes and 33 seconds) 8:24 am Roach called the CFMMEU office for 75 seconds (1 minute, 15 seconds) 8:28 am Watterston called Golz for 45 seconds 8:29 am Golz called Silver for 3 seconds (missed call) 8:35 am Silver called Golz for 121 seconds (2 minutes, 1 second) 8:37 am Watterston called Silver for 5 seconds (missed call) 8:38 am Silver called Watterston for 137 seconds (2 minutes, 17 seconds) 9:01 am Watterston called Golz for 81 seconds (1 minute, 21 seconds) 9:09 am Golz called Roach for 155 seconds (2 minutes, 35 seconds) 9:37 am Golz called Silver for 77 seconds (1 minute, 17 seconds) 9:41 am Golz called Watterston for 164 seconds (2 minutes, 44 seconds) 9:45 am Golz called Silver for 3 seconds (missed call) 9:59 am Silver called Golz for 86 seconds (1 minute, 26 seconds) 11:25 am Silver called Golz for 504 seconds (8 minutes and 24 seconds) 11:34 am Silver called Golz for 253 seconds (4 minutes and 13 seconds) 2:37 pm Golz called Silver for 343 seconds (5 minutes and 43 seconds) 3:08 pm Silver called Golz for 826 seconds (13 minutes and 46 seconds) 26 The objective evidence relating to the time of the various telephone calls is relevant to the evaluation of the witness evidence. Evidence of Mr Watterston Mr Watterston – evidence-in-chief 27 Mr Watterston stated that he and Mr Simone attended an induction at the site at 7.30 am on 20 April 2020. The induction was undertaken by a representative of Lendlease, and he and Mr Simone were amongst nine inductees. Mr Watterston stated that the induction went for a good three quarters of an hour, and concluded at around 8.15 am or 8.20 am. 28 Mr Watterston stated that at the conclusion of the induction he and Mr Simone made their way towards the exit to the induction room. He stated that Mr Roach was standing in front of them, by himself, and said, "Boys go take a seat up there", and pointed them towards some tables at the back of a large lunchroom that was outside the induction room. Mr Watterston and Mr Simone then took seats at the table, sitting diagonally opposite each other. Mr Watterston stated that Mr Roach then went off somewhere for a while before returning and stating, "Let's see your cards". Mr Watterston explained that on jobsites they always handed over CBUS, Incolink, CoINVEST, working at heights, and union cards, and that he and Mr Simone each kept these cards in a small folder that had been supplied some years earlier by the Union. Mr Simone gave his cards to Mr Roach first, who stepped away from the table towards a corner of the room and checked them. Mr Roach then told Mr Simone, "Yes, you're good". 29 Mr Watterston stated that Mr Roach then asked for his cards, in response to which Mr Watterston initially told Mr Roach that he did not think he had to provide a union card. He explained in evidence that he said this as a result of his conversation with Mr Silver of Geschke Plumbing, who had told him that he did not have to be a union member to work on the site. Mr Roach responded to Mr Watterston by stating "I don't know who told you that", following which Mr Watterston "ummed and ahhed a bit about it with Steve" before giving Mr Roach his cards which Mr Roach took before sitting at a nearby table in the room. Mr Watterston stated that Mr Roach attempted to check the cards using an app on his phone, and then made a telephone call. 30 After Mr Roach finished the telephone call, he returned to Mr Watterston and told him that he had to pay the sum of $500, and he returned the cards. Mr Watterston stated that he told Mr Roach something along the lines, "Well, I just – we made a payment not long ago about – just making it up-to-date". Mr Watterston also stated that he said to Mr Roach, "I just made my final payment and I'm not paying any more". Mr Watterston stated in evidence that he was hoping that because he had paid fees to close his account, that maybe he was covered for the following six months and that he was still current, thinking that it might be close to the cut-off date. Mr Watterston stated that Mr Roach's response was "pretty much just, if you don't pay it, you – you know, you're not going to be working here." Mr Watterston qualified his evidence by stating that he was "not quite sure" whether the discussion about the fact that he had made a payment to the Union occurred before or after Mr Roach made the telephone call. 31 Mr Watterston stated that Mr Simone then got up stating that they should go, to which he agreed. Mr Watterston stated that as he commenced to walk off, he walked back to Mr Roach and said to him, "Just to be clear, if I don't pay you that money, you're not going to let me work here", to which Mr Roach responded "yes". Mr Watterston then said, "Well [eff] you" and turned around and walked out with Mr Simone accompanying him. Mr Watterston stated that the whole process from the moment they entered the lunchroom took 10 minutes at the most. 32 Mr Watterston specifically denied saying anything to Mr Roach about having paid $200 to the Union, which was an allegation made by the respondents in their amended defences. He stated that he told Mr Roach that he had made a payment towards clearing up what he owed the Union and alluded to the fact that maybe it would cover him for the following six months. Mr Watterston stated that in response Mr Roach said something along the lines "You need to take it up with them". Mr Watterston specifically denied that he said to Mr Roach "I'm sick of you [c*nts]", or "Give me my [f*cking] tickets", which were allegations made in the amended defences of the respondents. 33 Mr Watterston stated that he and Mr Simone then left the site and went out onto the street. Once outside, he telephoned Mr Golz of Geschke Plumbing and told him that the Union would not let him work at the site because he was not a member, in response to which Mr Golz asked about Mr Simone, and said he would make some calls to find out what was going on. 34 Mr Watterston gave evidence that Mr Golz called him back, saying that it did not look like it was going to work out. Mr Watterston stated that the gist of what Mr Golz said was that he had spoken to Mr Roach and to Lendlease, and that unless he was a union member, it was not going to happen for him. In response to a specific question whether Mr Golz told him that he had spoken to Mr Roach, Mr Watterston stated that he could not remember. Mr Watterston said that Mr Golz asked if Mr Simone could do the job, to which Mr Watterston responded by stating that this was not the way they were set up, as Mr Watterston was responsible for the silicone. Mr Watterston stated that he thought that he called Mr Silver of Geschke Plumbing as well, but that he could not really remember that call. Mr Watterston stated that he remained outside the site for a good 15 minutes to half an hour, and then drove home. 35 Mr Watterston stated that he called the offices of the Commission, and subsequently spoke to an inspector employed by the Commission, Ms Ruth Dunsby. A file note from the records of the Commission of Mr Watterston's initial call at 10.53 am on 20 April 2020 was tendered during the evidence of Ms Dunsby. That note stated – At 10:53am on 20 April 2020, Inspector Ingles received a 1800 call from Brendon Watterston [REDACTED] owner of Melbourne Caulking Pty Ltd. Firstly, Watterston wanted to know his rights regarding being kicked off a site for not being a member of a union. Watterston then explained on 20 April 2020, he turned up to work and completed his induction at the Lendlease Two Melbourne Quarter project, located at Aurora Lane, Docklands, Vic 3008. When he left the induction room to begin work he was stopped by a CFMMEU delegate with the nickname 'Roach' (unsure of actual name). The delegate asked him if he was a member of the CFMMEU and asked to see his ticket. Watterston explained to the delegate he is no longer a member of the CFMMEU. The delegate told Watterston if he doesn't have a ticket, he cannot start work, alternatively he could pay a fee of $500 on the spot to begin work on the project. Watterston explained to Inspector Ingles he had bought hundreds of dollars of materials for this job and he is losing work because he isn't a member of the union which is why he decided to call the ABCC. Watterston said he is part owner in his company, Melbourne Caulking Pty Ltd and has no employees. Watterston is sub-contracted to Geschke Plumbing Contractors. Watterston contacted Geschke Plumbing and told them about the situation. Geschke Plumbing spoke to Lendlease and the response was "we have no work for you". Watterston said he would be willing to provide more information to the ABCC if needed. 36 Subsequently, at 2.15 pm on 20 April 2020 Ms Dunsby of the Commission called Mr Watterston. Ms Dunsby's file note of her conversation was tendered, which stated, inter alia – … • According [to] Watterston, that morning on 20 April 2020, he and his business partner [Mr Simone] were inducted onto the Lendlease Two Melbourne Quarter Project (the Project). Watterston and [Mr Simone] are owners of Melbourne Caulking. Melbourne Caulking have been engaged by Geschke Plumbing to complete 3 – 4 days caulking work on the Project. This was the first time Melbourne Caulking had been engaged by Geschke Plumbing • As they were leaving the induction room, they were called into the lunchroom by the CFMMEU delegate, "Roach". Roach asked to see their union membership cards. • [Mr Simone] has recently become a retired CFMMEU member, which means he pays less fees. [Mr Simone] gave Roach his CFMMEU card, and Roach said that he could work on the site. • Watterston has recently stopped paying for his union membership. He gave Roach an old union membership card. Roach checked the card and told Watterston that he could not work on the site without paying his membership fees. He told Watterston that he could pay him $500 upfront. Watterston refused. • Watterston and [Mr Simone] left site and contacted Shannon Silver [REDACTED] from Geschke Plumbing. According to Watterston, Silver called Lendlease to see if they could resolve the issue and let Watterston on the Project. Silver called Watterston back and informed him that there was no way around it and that they would get different contractors who are paid up union members instead. … 37 Later, Mr Watterston made a statement which was prepared by Ms Dunsby based on the information that he provided in a telephone call on 23 April 2020, and via email. Mr Watterston's statement was tendered at the conclusion of his evidence-in-chief: see, Evidence Act 1995 (Cth), s 64(4). The material parts of that statement concerning Mr Watterston's conversation with Mr Roach were as follows – 36. Roach came back over to us and gave Simone back his card. There seemed to be no issues with Simone's card. Roach then turned to me. Roach said· "Where's yours?" 37. I gave him an old card which I had in my wallet. I thought maybe it would still be ok. Roach went and [sic] check it on his phone. Roach said: "It says you're retired" Simone said: "Yea we're only just doing this job, we're not really doing any union stuff" Roach said: "It says you owe $500" I said: "I don't want to pay that" Roach said: "Well if you don't pay the $500 you can't work here" I said: "Really, I can't work here?" Roach said: "Yep" 38. At this point I stood up. I said: "So you're telling me that unless I pay that $500, I can't work on site?" Roach said: "Nope" 38 A few weeks after their attendance at the site on 20 April 2020 Mr Watterston and Mr Simone were permitted to return to the site to complete the job that their company had contracted to undertake, together with some agreed additional work that was requested by Geschke Plumbing. Mr Watterston – cross-examination 39 In cross examination, there were challenges to Mr Watterston's reliability. Many of the challenges centred on aspects of his evidence to the Court that were not included, or which were suggested to be inconsistent with, the signed statement prepared by Ms Dunsby of the Commission – (1) Mr Watterston did not agree that a sentence in his statement to the Commission that Melbourne Caulking did not have any employees was inaccurate on the ground that both he and Mr Simone were employees, stating that it was "semantics". Mr Watterston maintained that Melbourne Caulking was "our" company, and "our own business". In re-examination, he confirmed that Melbourne Caulking had no employees other than himself and Mr Simone. (2) It was put to Mr Watterston that a statement made in the email to the Union dated 25 September 2019 (see [21] above) that since the beginning of the year he was no longer working in the industry was untrue. Mr Watterston accepted that the statement was "partly untrue", and that the wording could have been better, explaining that what had occurred was that he had stopped working on "city sites", or "union sites". (3) Mr Watterston accepted that his statement did not include reference to Mr Roach going off anywhere after his initial interaction with Mr Watterston and Mr Simone, but Mr Watterston stated that there were other incidental matters that had not been recorded in the statement, such as a discussion that Mr Simone had with Mr Jones and other workers, and the fact of Mr Jones's presence in the room. (4) Mr Watterston agreed that upon Mr Roach asking for tickets he thought that Mr Roach was going to check whether Mr Watterston was a Union member, and that he was concerned that if Mr Roach ascertained that he was not, he might not permit him to work on the site. (5) It was put to Mr Watterston that he referred in his statement to Ms Dunsby to he and Mr Simone providing their Union cards to Mr Roach, but not the other cards to which he referred in his evidence-in-chief, namely his CBUS, CoINVEST, Incolink, and working from heights cards. Mr Watterston acknowledged this to be the case but affirmed his evidence-in-chief on this issue. He denied that he had left out of his statement references to cards other than his Union card because he wanted to paint a picture that Mr Roach was just interested in Union tickets. (6) It was put to Mr Watterston that his statement to Ms Dunsby did not record the fact of Mr Roach making a telephone call to which he had referred in his evidence-in-chief. Mr Watterston affirmed his evidence-in-chief concerning the fact of Mr Roach's telephone call. (7) Mr Watterston was asked about the sentence in the statement where he attributed to Mr Roach the words "It says you owe $500", and responded by stating that he should have said, "the person on the phone…" said you owe $500. (8) It was put to Mr Watterston that his written statement had made no reference to his remark to Mr Roach that he had made a payment not long ago to make it up to date, to which he had referred in his evidence-in-chief. In response Mr Watterston said that he did not say everything in the statement that he could possibly think of at the time, and that he had given the general scope of it. He said that he had not been asked by Ms Dunsby to give as much detail as he could remember at that time. He denied that he had omitted anything. (9) It was put to Mr Watterston that he had not included in his statement to Ms Dunsby any reference to Mr Simone saying to him, "It's time to go", in response to which Mr Watterston stated that he was pretty sure that he and Mr Simone looked at each other and said "Let's go", and then stated that they might not have even said it, but just looked at each other knowing that it was time to go. (10) It was also put to Mr Watterston that he had not mentioned in his statement to Ms Dunsby that he told Mr Roach that he had made a final payment, and was not paying any more, to which he agreed. (11) As to the respondents' allegation that Mr Watterston had told Mr Roach that he had recently paid the Union the sum of $200, in cross-examination Mr Watterston's evidence about that topic was as follows – Q: Well, there's no reference to this evidence you've given this morning, sir, that you said to Mr Roach, "We made a payment not long ago to make it up-to-date"? A: I said something about $200 – or he said there was 200. I can't remember. I just - - - Q: Well, just – let's just break that down? A: Yes. Q: Mr Roach said something about $200, did he? A: Yes. He said I said 200. And I – I said that I made a payment that was going to make me clear of owing anything to the CFMEU. Q: Can I just try and understand, sir, what you're telling us? A: Yes. Q: Mr Roach – I withdraw that. You told Mr Roach that you paid $200? A: I thought it was – not 200, but I thought there was a payment. I didn't specify the amount. I said, "There was a payment made, and I think I – I'm not sure, but I could be still current." Q: When - - -?--- ..... Q: You said $200 a moment ago. Where did you get - - -? A: That's where he – sorry, I'm thinking about what I read that he said, the $200. Because I didn't think it was a lot. It wasn't the full 500, and I know it's about four hundred and something now. (12) Mr Watterston was taken back to the topic later in the cross-examination, accepting that he "could have" told Mr Roach that he had paid the sum of $200 to the Union, which I set out below in its context – Q: You told him that you had paid $200 to reinstate your membership card? A: No. I told him I had paid some money. I didn't say how much. Q: To reinstate your membership? A: No, just to – to get it current. Q: To reinstate your membership? A: Well, to pay off what I had – what I had owed and I wasn't sure if it was still valid for the time we were at this job. Q: And you told him that you had done that a couple of days ago? A: No. I – I don't think so. Q: Did you tell him when you had done it? A: No, because my wife did it for me. I couldn't remember when. I thought it was more recent than it was. Q: And what I want to suggest to you, sir, was that you told Mr Roach that, "I paid $200 to reinstate my membership a couple of days ago"? A: No. I don't think I said 200. Q: You could have said 200? A: Could have, yes. I might have just guessed at the amount. But I know I made – my wife made a payment. It wasn't the full amount. It was a part-payment. Q: When did she make that part-payment? A: I'm not sure. It's in my – it's in the paperwork. Q: Is that the $412.50? A: Yes. Q: That was paid back in October 2019? A: Yes, it was quite a long time. Q: And it was a part-payment for what, sir? A: For the last six months membership or three months; I'm not sure. I'm not – I don't pay it. My wife pays all the bills. (13) Mr Watterston was then pressed further about his exchanges with Mr Roach, in response to which Mr Watterston appeared to express some uncertainty about what Mr Roach had told him after he had checked his cards, and as to whether Mr Roach told him that he had to take the matter of payment up with the Union office, save that Mr Roach said to Mr Watterston that he was "no good" and that he didn't have a card – Q: After you told Mr Roach that you had paid an amount, or someone had paid an amount … your membership, he told you that you needed to ring the union office because, at the moment, they're saying you cancelled your ticket in February? A: He did say something along the lines of, "You will have to take it up with them," meaning the CFMEU or something like that. Q: You're not sure what he said? A: I couldn't tell you the exact wording now, no. Q: So what he said, sir, was you needed to ring the union office because they're saying you cancelled your ticket. And he said, I suggest, that the $200 is missing, because they've got no record of you paying it? A: No, I don't recall him saying anything about missing $200. Q: He said something about a missing part-payment, did he? A: I don't recall. Q: He said something about the union having no record of any part-payment being made for your membership fees? A: No, I can't recall that. Q: He suggested to you, didn't he, that the best thing for you to do was to call the union office or, better yet, go into the union office? A: Maybe he said something along those lines, but I don't recall. Q: You accept that he might have said something like that; is that right? A: He was just saying you're not paid. You're not a member and you need to, you know, pay your membership. If – well, look, I'm just speculating. I – I couldn't tell you what he said to be honest. I just – I know – I know he said I'm not – I'm no good. I don't have a card. (14) It was put to Mr Watterston that his account of going back to Mr Roach and having another conversation with him did not appear in his statement taken by Ms Dunsby. Mr Watterston's responses were varied, in that he first said that he did not omit it, he just did not remember it, then stating that he was sure that he told Ms Dunsby about it, and then stating that it was something that he did not consider relevant at the time. When pressed further, he stated that he remembered telling Ms Dunsby about the further exchange with Mr Roach and was surprised that it was not in his statement. Mr Watterston denied that he had made up his evidence that he said to Mr Roach "[Eff] you". (15) Mr Watterston denied that he had a telephone conversation with Mr Golz in which Mr Golz said that he did not need to leave the site and that he should come back, stating that Mr Golz only asked about Mr Simone coming back, and stated that this probably occurred in the telephone call while he was still at the site. Mr Watterston said that he told Mr Golz that it was a two-man job. Mr Watterston denied that he told Mr Golz that he had another job offer, stating that they had allowed two days for the job and had nothing else booked in. (16) Mr Watterston denied that he had told the Commission that he had been informed by Geschke Plumbing that Lendlease had said "We have no work for you". 40 Mr Watterston stated that he and Mr Simone had talked about the case for over 12 months, and that he had seen something in the nature of a document containing what Mr Simone had said to the Commission. 41 There was an attempt to pursue a line of cross-examination with Mr Watterston so as to suggest to him that the reason he was not permitted to remain on the site was that Lendlease had not been satisfied that there was an industrial instrument covering the employees of Melbourne Caulking. This line of cross-examination went nowhere and did not feature further in the proceeding. 42 Counsel for the respondents put the respondents' case to Mr Watterston in relation to the exchanges with Mr Roach on 20 April 2020, which in substance was that Mr Roach and Mr Jones had spoken to the inductees in the lunchroom about safety matters before asking all the workers for tickets. Mr Watterston denied this claim, stating that it was a "fantasy" and "all lies". Mr Watterston had denied in evidence-in-chief that Mr Roach and Mr Jones addressed all the employees as a group and denied that either Mr Roach or Mr Jones introduced himself as a health and safety representative, or that they had spoken to the group about safety issues at the site, or about safe work method statements. Mr Watterston further denied that Mr Roach and Mr Jones said anything about lifts on the site, about electrical issues, or that their photographs and telephone numbers were available around the site. Mr Watterston denied that he had snatched his tickets from Mr Roach, using expletives as he did so. 43 When it was put to Mr Watterston that he did not have a clear recollection of the events of 20 April 2020, he responded – It was a pretty simple thing that happened. It was – you know, if you want to get into the minute details of it, you know, as I'm sure this is what it's all about, I'm doing my best. But the general gist of it is we were told to go. 44 Mr Watterston denied that he had a preconceived idea about how a Union delegate would interact with him that clouded his impression of his interaction with Mr Roach and denied that he misunderstood what Mr Roach was saying to him about the payment that he had made to the Union. Mr Watterston affirmed his understanding that because he was not holding a current Union ticket he was not allowed on site. 45 As to Mr Watterston's second telephone conversation with Mr Golz after leaving the site, which was at 9.01 am, Mr Watterston stated that Mr Golz did not say that he had spoken to Mr Roach, and that he was not sure to whom Mr Golz had spoken. Mr Watterston – re-examination 46 In re-examination, Mr Watterston stated that he definitely did not go to any other jobs on 20 April 2020, and that he had no other jobs booked for that day. 47 In relation to his statement to Ms Dunsby, Mr Watterston stated that he did not draft the statement, that there were some things that he did tell Ms Dunsby that did not appear in the statement such as him swearing at Mr Roach, and that there were other things that were not in the statement because he did not consider them to be relevant. Evidence of Mr Simone Mr Simone – examination-in-chief 48 Mr Simone gave evidence that he and Mr Watterston had been members of the Union for about 15 years, that they had terminated their membership, and that he was listed as retired, which was noted on his Union card. Focussing on Mr Simone's evidence about the interactions with Mr Roach on 20 April 2020, Mr Simone stated that he and Mr Watterston arrived at the site for a 7.30 am induction that was conducted by a Lendlease employee, and which lasted approximately 45 minutes. When leaving the induction room after collecting their belongings, Mr Roach walked Mr Simone and Mr Watterston down to the back tables in the lunch area. After seating themselves at a table, Mr Roach asked them for their cards. Mr Simone produced his cards from his folder, and upon seeking clarification that Mr Roach wanted to see his Union card, he produced that card as well, which stated that he was retired. A copy of Mr Simone's Union card was tendered, which showed that he was financial until 30 September 2020, and stated that he was a "retired member". Mr Roach then took Mr Simone's cards to a nearby table and checked them, with Mr Simone observing him using an app on his mobile telephone. Mr Roach returned to Mr Simone, handed his cards back, and said, "You're all good". 49 Mr Simone then gave the following evidence about Mr Roach's exchanges with Mr Watterston in relation to his cards – .. Brendon handed him the three – the CBUS, the Incolink and the CoINVEST and, then, he said, "I need your union card." He said, "I don't have one." And he said – well, he goes, "Do you have an old one?" And he said, "Yes, I have an old one." And he said, "That will do. I can use that." And so Brendon handed him that and then he went back and ran it through the same app that he did with me. And – and then, actually, he – I don't think he had to make a phone call with mine, but I noticed that he did make a phone call while he was running Brendon's cards. 50 Mr Simone stated that while Mr Roach made the call – Brendon and I were sort of giving each other the eye because we knew, basically, what was happening, and sort of – we had an idea of what was coming up. 51 Mr Simone's account of the exchanges upon Mr Roach's return to Mr Watterston was as follows – Q: Now, did he finish the phone call before returning to you or was he still on the phone call? A: No, no, he finished the phone call. Q: And then what happened? A: He basically gathered up Brendon's cards, came over and told him that Brendon needed to pay the – he was behind in his union fees; he needed to pay them, like, [$]515 because he hadn't paid, to which Brendon said, "You know, I'm all paid up. I've paid." And he said something like, "Well, you owe it." And he said, "Well, I'm not paying it." and basically, Jason Roach said, "Well, you have to go down and talk to the – talk to the union office. Give them a call and organise a payment." And Brendon said, "Well, I don't want to pay." And Mr Roach said, "Well, you have to organise a payment. You know, speak to the union office." And that's when Brendon started querying, "Look, are you not letting us on the job? Are you saying that if I don't pay this, I can't come on the job?" And – and then Mr Roach was saying, "Look, I'm just saying you've got to go down to the union office and talk to them." And he says, "Well, I don't want to talk to the union office. Are you saying that I can't work here if I don't pay my union fees?" To which Mr Roach basically said, you know, "You have to go – you have to go to the office and deal with that. You can't come on the job until you go to the office or make – like, deal with the office." 52 Crucially, Mr Simone stated that Mr Watterston sought to have Mr Roach state clearly his position, and put to him, "Are you saying that I can't work here if I don't – if I don't pay my Union fees?", to which Mr Roach responded, "Until – until that, no, you can't work here". Mr Watterston then told Mr Roach to "[eff] off", and he and Mr Simone collected their hard hats and proceeded to walk out. 53 Mr Simone denied that he saw Mr Roach and Mr Jones address all the inductees as a group and denied that there was any address by them about safety or anything to do with the site. He admitted of the possibility that Mr Roach introduced himself as the health and safety representative for the site but did not recall Mr Jones introducing himself. Mr Simone also said that he did not recall Mr Watterston making any reference to a figure of $200 and did not recall Mr Watterston mentioning any particular amount. Mr Simone denied that Mr Watterston had used other expletives to Mr Roach when demanding the return of his tickets. 54 Mr Simone stated that after they left the area where Mr Roach had been, they left the site and remained outside where he heard Mr Watterston engage in at least two telephone calls. He heard Mr Watterston explain to Mr Golz of Geschke Plumbing that they could not get onto the site and requesting that he sort it out. Mr Simone gave evidence that he and Mr Watterston were resigned to the fact that they would not be able to get onto the site that day, but that they would be able to return to the site on a later occasion to undertake the job. 55 Mr Simone prepared a statement for Ms Dunsby of the Australian Building and Construction Commission dated 27 April 2020, which was tendered. Mr Simone said that he was satisfied that the statement was true and accurate at the time he made it to the best of his recollection. The central elements of that statement were as follows – 24. Roachie came back over and gave me back my cards. He then turned to Watterston. Roachie said: "and your card?" Watterston said: "I don't have a card, I have this old one" Roachie said: "I can take that one" 25. Roachie took Watterston's card and went to check it. I think he tried to check the card on an app on his phone but it was not working so he rang the union instead. 26. Whilst this was happening I started talking to someone about their CFMMEU Team Taylor jumper. 27. Shortly after this Roachie finished the phone call and then approached Watterston. Roachie said: "You owe $515" Watterston said: "No I've paid, I've been a member for 15 years and I'm paid off" Roachie said: "That's fine but you have to take it up with the office" Watterston said: "So you're telling me that unless I pay that $515, I can't work here?" Roachie said: "Not until you pay your $515" Mr Simone – cross-examination 56 In cross-examination – (1) Mr Simone stated that Mr Roach was wearing a black hard-hat, with Union stickers. He said that Mr Roach was not hostile or aggressive, and that he did not do anything physical to prevent Mr Simone and Mr Watterston from working on the site. (2) Mr Simone agreed that he had a perception that Mr Roach was a person who was going to check whether or not he was a union member. He did not think that Mr Roach was going to prevent them working on the site but apprehended that the situation would be very awkward. (3) Mr Simone denied a series of propositions that were put which amounted to Mr Roach introducing himself and the other health and safety representative to them and a number of other workers in the room. Mr Simone stated, "that didn't occur". While he accepted as a possibility that Mr Roach had introduced Mr Jones, he did not recall it occurring. (4) Mr Simone denied being told by Mr Roach about safety matters and denied that Mr Roach had spoken to other workers. He did not recall Mr Roach speaking to them about other matters, namely, to be patient with drivers, to check their electrical equipment, or that his and Mr Jones's photographs were on posters around the site. In re-examination, Mr Simone explained that when he stated that he did not recall these matters, his answer was "no", meaning that the events did not occur. (5) Mr Simone stated that he did not recall Mr Watterston stating to Mr Roach that he had paid a particular sum of money, or that that Mr Watterston had identified the sum as $200, but accepted that it was a possibility that Mr Watterston may have mentioned paying a particular sum of money. Mr Simone was questioned further about this aspect, and his evidence was as follows – Q: And after he [Mr Roach] had concluded making that phone call, he spoke to Mr Watterston and said that the union was saying that Mr Watterston had cancelled his ticket in February? A: I don't recall that was exactly what they said, but I do recall him saying something about he's no longer a member, to – to that effect. Q: And Mr Watterston replied at that point that he had paid an amount to reinstate his membership? A: He had, yes. Q: And I think we went through this earlier, sir, but I will – sir – the abundance of caution – I suggest to you that he nominated the amount of $200 as the amount he would pay the union? A: You – you can suggest that, yes. I will go with your suggestion. (6) Mr Simone stated that he recalled hearing Mr Roach say to Mr Watterston that he owed $515 – Q: Okay. Now, in that conversation, did Mr – do you recall Mr Watterston saying anything about $200? A: No, that – that – I don't believe – I don't recall that. I remember – I thought it was something about, like, around 515, because it was – that would be the last instalment, or that would be how much it would cost for the half yearlyfee. So that's – I remember something about 515 is what I remember. (7) Mr Simone denied a proposition that at no point had Mr Roach told Mr Watterston that he was not able to work on the site until he paid it, and gave the following account – From my memory, what he said was - when Brendon said, "Are you saying that I can't work here on the site unless I'm a union member," Mr Roach said, "Not until you sort out this this – not until you sort this out with the union." "Can I work here?" "Not until you sort this out with the union," is what I recall. (8) Mr Simone was asked about his understanding of Mr Watterston's telephone conversation with Mr Golz at 9.01 am, as conveyed to him at the time by Mr Watterston – Q: … And did Mr Watterston relay to you, after Mr Golz' – or his second call with Mr Golz, whether Mr Golz had sorted things out? A: He relayed to me that he was too busy to sort things out and that it would probably be best that we just left and that they would probably get somebody in who had union membership. Q: So Mr Watterston didn't tell you that Mr Golz had told him that he had attempted to sort things out with Mr Roach or anyone else? A: Right, Mr Watterston told me that he didn't try to sort things out with Mr Roach because he was too busy; he wasn't going to be able to do it. (9) Counsel for the respondents put elements of the respondents' case to Mr Simone. The cross-examination concluded with the following question and answer – Q: And it was only on – as I understand your evidence yesterday, sir, only on that last occasion or after the last occasion that Mr Watterston had asked that question that Mr Roach responded to the effect, as I understand your evidence, that, "You can't work here"? A: From my memory, what he said was – when Brendon said, "Are you saying that I can't work here on the site unless I'm a union member," Mr Roach said, "Not until you sort out this this – not until you sort this out with the union." "Can I work here?" "Not until you sort this out with the union," is what I recall. Mr Simone – re-examination 57 In relation to any sum that Mr Watterston told Mr Roach he had paid to the Union, Mr Simone stated that he did not recall any sum, which in context I understand to mean that he did not recall Mr Watterston mentioning any particular figure, and that the same was conveyed by his answer in cross-examination, "I will go with your suggestion", meaning that he did not recall any sum. Mr Simone then added – I remember – I remember in my head something about 515 because that just seems like the natural – that's the – the twice a year that we had to pay, so - - - 58 Mr Simone addressed the exchange between Mr Watterston and Mr Roach in the following terms – What he said was, when it came to Brendon asking him, "So you're saying that I can't work on this site unless I pay my union dues," that was when – or, "You're saying I can't work on this site – are you telling me I can't work on the site?" Mr Roach said, "Not until you pay your union dues. Not until you get down to the union office and pay your dues. Sort this out with the union." Words to that effect, not the 515, not the way he – that your learned friend explained it. More so just in a different way. Evidence of Mr Golz 59 Mr Golz was employed as a site foreman by Geschke Plumbing. As will appear from the following summaries, on some issues the evidence of Mr Golz changed markedly during the course of his evidence from examination-in-chief, to cross-examination, to re-examination. It will be necessary to make findings about Mr Golz's evidence in due course. Mr Golz - examination-in-chief 60 Mr Golz stated that on the morning of 20 April 2020 he showed Mr Watterston and Mr Simone to the induction room on the site. His next contact with them was when Mr Watterston called him after the induction had finished, telling him that he was told by the CFMEU representative on site (whom Mr Golz knew was Mr Roach) that he was not allowed to start until he had sorted out his union fee. Mr Golz's evidence-in-chief on this topic was as follows, noting that Mr Golz was a subpoenaed witness, and that the following evidence was largely in response to non-leading questions – Q: All right. And in relation to Mr Watterston and Mr Simone, what was the next occasion that you became aware of any issues or happenings with respect to them on the site that day? A: They gave me a call when the induction was finished. Q: Who gave you a call? A: Brendon. Q: And do you recall what time that was? A: No. Q: All right. And what did he say to you? A: That the induction had finished, and he wasn't allowed to start until he sorted out his union fee. Q: Did he tell you anything about who had told him that? A: He just said the CFMEU rep on site. Q: Did he mention a name or you? A: Just said Jason. Q: Do you know the CFMEU rep on that site? A: Yes. Q: What's his name? A: Jason. Q: You know his surname? A: Roach. Q: Do you know if he has a nickname? A: Roachy. Q: Right. Now, do you recall him – when he said, "We weren't allowed on the site," was he talking about both himself and Mr Simone? A: No, just himself. Q: All right. Did he tell you what the situation with Mr Simone was? A: That he had to organise $200 owing. Q: I'm sorry. I was asking about the situation with Mr Simone. Did he tell you what the situation with Mr Simone was? A: He said that Mr Simone had paid some of his dues and was able to proceed. Q: All right. And what was the distinction with respect to Mr Watterston? A: That he had – he had paid $200 that Jason said to go chase up before commencing. Q: So as I understand that answer, you said Mr Watterston told you that he had $200 – a payment to the union that he had to chase up? A: Yes, that he wasn't allowed to start until he had a – had that clarified from the union. Q: All right. What did you say in response to that? A: I said I will chase it up and I will speak to my project manager to sort out this issue. Q: Who's your project manager? A: Shannon Silver. Q: Did you say that you would try to speak to Mr Roach? A: I – I went to go find Mr Roach but couldn't – didn't find him at that time, so I contact … so I contacted Shannon to organise. 61 Mr Golz stated that he went onto the site and found Mr Roach. Mr Golz stated that he found Mr Roach about half an hour after he spoke to Mr Watterston. Mr Golz's evidence at this point was that he spoke to Mr Roach onsite. Mr Golz gave the following evidence about his conversation with Mr Roach, which he stated occurred in person – Q: And what happened then? A: He just said that – that he had to – he said for him that he had $200 that he – had been paid for him to chase up from – from the office before proceeding. … Q: Yes. When you said he had to pay – $200 that he paid that he had to chase up at the office before proceeding. What do you mean by before proceeding? A: Before commencing work. 62 Mr Golz stated that he did not recall whether in his conversation with Mr Roach he made any attempt to try and have Mr Watterston and Mr Simone be allowed to work on the site. Mr Golz stated that he then telephoned Mr Watterston who told him he had left the site because it was a two-man job. Mr Golz stated that in response he said that Mr Simone was able to continue, to which Mr Watterston responded by stating, "No, we're leaving [the] site. It's a two-man job." Mr Golz stated that he spoke to Mr Silver by telephone after his second conversation with Mr Watterston. Mr Golz stated that up to this point he had not spoken to Mr Silver, stating that he had called but could not get through to him, and that he did not recall when he first spoke to Mr Silver about the situation. 63 Mr Golz stated that he recalled receiving a call from an inspector of the Australian Building and Construction Commission the following day, 21 April 2020, but said that he could not remember her name, and that he could not remember what he had told her. He recalled telling Mr Silver that he had been contacted by the Commission but could not recall what Mr Silver said. He did not recall calling Mr Roach or speaking to him at any time about the fact that he had received a call from the Commission. However, he did recall exchanging text messages with Mr Roach. Mr Golz identified an exchange of text messages with Mr Roach, parts of which were tendered as a screenshot, where the top message on the screenshot was obscured. Mr Roach was later asked in cross-examination to read the messages from his iPhone, and it is convenient to set out at this point the exchange of text messages that is the product of the evidence of both Mr Golz and Mr Roach, including his evidence in re-examination – Mr Golz: Come to my office, please, for a chat Mr Golz: I can't believe they called trying to find out haha Mr Roach: I know mate. That's what the dogs do. Try & get every [c*nt] to dob the union in so they can try & prosecute & send the union broke Mr Golz: Yeah it's ridiculous mate ohwel [sic] nothing will come out of [it] they prob get that many phone calls per day Mr Roach: I hope not but stiff shit anyway. It's his word against mine but I can tell you that Melbourne caulking won't be getting any union work in the future 64 Returning to Mr Golz, after being taken to these text exchanges, Mr Golz then recalled that he had called Mr Roach, possibly after he had been contacted by the Commission. 65 Mr Golz gave evidence of an email that he sent to Mr Silver and Mr Geschke of Geschke Plumbing on 22 April 2020, which included the following account of what occurred on 20 April 2020 – … Once induction completed Brendan called and advised me that he was unable to attend site due to not being financial as directed by roachy, he then added that Stefan [sic] was able to continue on site as he did have his card, Brendan had said to roachy that he had payed [sic] his fees of $200 dollars a couple of weeks prior, with further investigation roachy said he hadn't and [until] he did he couldn't proceed with work but Stefan was more than welcome to, Brendan told me then that he hadn't payed [sic] it for years as he doesn't need it, then asked if I could call roachy. I spoke to roachy To get a better understanding and heard the same story as Brendan, I contacted Brendan and said was on my way down the building to sort it out and meet him and Stefan. By the time I had made it down to meet Brendan on level b4 he called and advised me that they were both leaving site as Nothing more could be resolved from the outcome, I made it known that Stefan can stay and complete the caulking, but his response was that it was a 2 man job and having one person there to conduct the works wouldn't be practical. … 66 Mr Golz stated that the contents of the email would be "very accurate". In relation to the reference to $200, Mr Golz stated that this was something that Mr Watterston had said to him. At this point in Mr Golz's evidence, I gave leave to the applicant to cross-examine: Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 1) [2021] FCA 1153. Mr Golz - cross-examination with leave by counsel for the applicant 67 Counsel for the applicant referred to the telephone records of communications that Mr Golz had on 20 April 2020. Mr Golz accepted that he and Mr Silver had numerous calls, and that Mr Silver had returned his call at 8.35 am, and that Mr Golz had told Mr Silver what Mr Watterston had told him. Mr Golz accepted that the effect of what he said to Mr Silver was that Melbourne Caulking was not allowed onto the site by Mr Roach because they were not in the union, meaning that they were not financial as they had not paid their dues, or their dues were not up to date. 68 In relation to his telephone conversation with Mr Watterston prior to him leaving the site, Mr Golz denied telling Mr Watterston that he may as well leave because the Union was not going to let him work. However, Mr Golz agreed that by the time he called Mr Watterston back, he knew that Mr Roach was not going to let him back on the site. 69 Mr Golz agreed that Mr Roach had told him that Mr Watterston had to pay some money before commencing work on the site. Mr Golz also agreed that Mr Watterston had never told him that he had paid $200 to the Union, and that it was Mr Roach who had told him of that sum. 70 Mr Golz was taken to a file note prepared by Ms Dunsby of the Commission of her conversation with him on 21 April 2020, which was later tendered. In the file note, Ms Dunsby recorded the following (inter alia) – • Golz got a call from Watterston, who was outside the project, informing him that the CFMMEU Union Delegate "Roachie" wasn't letting them work because they weren't financial CFMMEU members. Golz told Watterston that he would give Roachie a call and meet them outside the project. • Golz called Roachie, and tried to convince Roachie to let Watterston and Simone back on site. Roachie said that Simone was allowed on site because he was financial but Watterston wasn't. Golz informed Dunsby, that he tried his hardest to get them back on site but it was out of his hands. • Golz called Watterston back, and Watterston told him that they had left the site. Golz said that Simone was allowed on site. Watterston said that it really was a "two man job". Watterston also told Golz, that Simone was not actually a financial member but was a retired CFMMEU member and only paying for the CFMMEU card. 71 After reference to the file note, Mr Golz accepted the following propositions (inter alia) – (a) Mr Roach told him that Mr Watterston was not allowed onsite because he was not financial with the Union; (b) Mr Roach told him that Mr Simone was allowed onsite because he was financial with the Union; and (c) in response, Mr Golz tried his hardest to persuade Mr Roach to allow Mr Watterston to work, but was unsuccessful, Mr Roach stating that Mr Watterston had to pay fees of $200 before he could work, and that Mr Roach had made this position clear. Mr Golz - cross-examination by counsel for the respondents 72 In cross-examination by counsel for the respondents, Mr Golz gave evidence about material facts that differed in some respects from his previous evidence. 73 Mr Golz initially stated that he spoke to Mr Roach face-to-face. However, at different points in his evidence Mr Golz also stated that he did not recall whether he met Mr Roach, or whether he telephoned him after he had spoken to Mr Watterston. He then agreed that the first time he spoke to Mr Roach was during a telephone conversation at 9.09 am, being one of the telephone calls appearing in the statement of agreed facts. Later in the cross-examination, Mr Golz accepted a suggestion that he was mistaken about having a face-to-face meeting with Mr Roach on the day, and that on the premise that his first telephone call with Mr Roach was at 9.09 am, he would not have had any communication with Mr Roach before his second conversation with Mr Watterston at 9.01 am. Mr Golz agreed that he had spoken to Mr Watterston twice before he spoke to Mr Roach, and accepted the following propositions – (a) Mr Watterston had told him in a telephone call at 8.28 am that he had told Mr Roach that he had paid $200 to the Union a couple of weeks previously; (b) Mr Roach had said that there was no record of the payment, and that Mr Watterston should chase it up with the Union office; (c) on the premise that he had not spoken to Mr Roach before 9.09 am, it could not be the case that he would have said anything to Mr Watterston in the call at 9.01 am concerning Mr Roach's position about whether Mr Watterston could work on the site, because he had not spoken to Mr Roach up to that point; (d) it followed that he would not have said to Mr Watterston in the 9.01 am call that he might as well go, because he did not know of Mr Roach's position; (e) that when he spoke to Mr Roach at 9.09 am, Mr Roach stated that, "it was a load of bullshit that he was not letting the caulker start onsite", that he never told the caulker to leave, and that the caulker needed to speak to the Union about where his $200 was; (f) that he made no attempt to convince Mr Roach of anything at all, because Mr Roach had said that it was "all bullshit"; (g) Mr Watterston had never told him that Mr Simone was a retired member of the Union; and (h) that on about 10 July 2020, he had a conversation with Ms Bridie Murphy, a solicitor acting for the Union, and told her that Mr Roach had told him that it was not the case that Mr Watterston was not allowed back on site. 74 Mr Golz was questioned about his 9.41 am telephone conversation with Mr Watterston. When it was put to him that he told Mr Watterston that he did not need to leave the site, and that he asked him to come back, Mr Golz initially stated "I don't recall that phone call". Some leading questions were then put to Mr Golz, to which Mr Golz responded on the basis that he had a telephone conversation with Mr Watterston as he was making his way down to see him – Q: Sorry, sir? A: I was up the top of the building making my way down to see him and he said that he had left site because he wasn't waiting around. Q: Thank you. And you encouraged him to not leave? A: Yes. Q: And you told him, didn't you, that if he was going to leave then, at least, he should send his mate back to do the job? A: Yes. Q: And he told you that it was a two-man job? A: Yes. Q: And you said that it wasn't? A: I – I said that it wasn't? Q: It wasn't a two-man job because it was caulking and it could be done by one man? A: I said that we could proceed with one. Q: All right. Thank you? A: Make a start. Q: But Mr Watterston said that he was too busy? A: Yes. Q: He told you had another job to go to? A: Yes. 75 As set out below, Mr Golz walked back on this evidence in re-examination by counsel for the applicant. Mr Golz - re-examination by counsel for the applicant (including further cross-examination with leave) 76 Counsel for the applicant sought leave to cross-examine Mr Golz further, which was not opposed. During the course of this cross-examination, Mr Golz changed his evidence again in relation to material issues. In summary, Mr Golz gave evidence that – (a) in one of his conversations with Mr Watterston, Mr Golz had asked if Mr Simone could return to the site because he knew that Mr Simone was allowed to work by Mr Roach because he was financial; (b) he did not ask Mr Watterston to return to the site because he knew that Mr Roach was not going to allow him to come back; (c) he had told Ms Dunsby of the Commission that Mr Roach had said they could not work because they were not paid up; (d) he tried with Mr Roach to have him allow Mr Watterston to return to the site; (e) that he was told by Mr Roach that Mr Watterston was to chase up the $200 that he had said he already paid, and to sort that out before he started; (f) the reality was that Mr Roach said that Mr Watterston had to pay the amount before he could work; (g) contrary to his previous evidence, it was not true that Mr Roach had told him that it was a "load of bullshit" that he was not letting Mr Watterston start onsite before he paid; (h) Mr Roach never told him at any time that Mr Watterston was allowed back on site; (i) Mr Watterston was not allowed back on site until he paid the Union fees; and (j) insofar as he had said anything different to the respondents' solicitor, Ms Murphy, he did so as to not upset the Union, although he denied giving evidence before the Court with that purpose. Evidence of Ms Dunsby 77 As I have mentioned, Ms Dunsby was at the time of the relevant events an inspector employed by the Australian Building and Construction Commission. She produced or referred to the following records, which were admitted into evidence – (a) a record of a 1800 call to the Commission by Mr Watterston at 10.53 am on 20 April 2020; (b) a file note of a telephone conversation between Ms Dunsby and Mr Watterston dated 20 April 2020 at 2.15 pm; (c) a file note of a telephone conversation between Ms Dunsby and Mr Golz dated 21 April 2020 at 12.00 am [sic]; and (d) the signed statement of Mr Watterston that she prepared that was dated 23 April 2020. 78 Ms Dunsby was cross-examined about her usual practices in the preparation of notes of her interviews, and statements that she prepared. She said that she did not recall Mr Watterston stating to her that after Mr Roach had initially said something to him about not being permitted to work onsite, that he got up, started to leave, and then came back to clarify with Mr Roach whether or not he was permitted onsite. Ms Dunsby acknowledged that this claim did not appear in the statement that she had prepared for Mr Watterston. Ms Dunsby gave evidence that, had she been told of that claim, she would have recorded it in the statement. Ms Dunsby also stated that she was fairly confident that Mr Watterston had not told her that there was another union delegate present. Nor did she recall Mr Watterston stating that he was asked for and showed Mr Roach cards other than his Union card, and stated that if he had done so, she would have recorded it in the statement. Other documentary evidence 79 Neither Mr Silver nor Mr Geschke was called as a witness, but some emails from Mr Silver were tendered without objection. One email was from Mr Silver to a manager of Lendlease dated 21 April 2020, in which Mr Silver stated – Also FYI Melbourne Caulking were not allowed onsite by Roachy so I will need to find another contractor. 80 An email dated 22 April 2020 that Mr Silver sent to himself, and which was copied to Mr Geschke was tendered by the applicant without objection. The email had as its subject "ABCC" and appears to be a note of events made by Mr Silver after he became aware of the investigation by the Commission – Monday 20/4 • Melbourne Caulking came to be inducted • Apparently weren't allowed onsite because they weren't in the union Tuesday 21/4 • Received call from ABCC regarding what happened - explained what I knew about the situation • Gave over Brads number • Gave over Caths number Wednesday 22/4 • Missed call from ABCC • Missed Call from Brendon • Rang Cath about LL stance - she hadn't heard from ABCC, said she would follow up with management • Spoke with Rohan, explained what occurred, he rang another LL department and rang back, was concerned with where the supposed conversation between Roachy and Brendon occurred, stated I didn't know • Rang the ABCC back, received Notice to Produce Documents Evidence of Mr Roach Mr Roach - evidence-in-chief 81 At the relevant time, Mr Roach was employed by Lendlease as a labourer, and was elected by the workforce as one of the site's health and safety representatives, and was a Union delegate. He had worked on the site since 10 July 2018. The other health and safety representatives included Mr Kerry Jones for the plumbers, and Mr Clint Wiggard for the electrical trades. 82 Mr Roach was asked what his practice was as a health and safety representative in relation to the induction of new workers at the project. Objection was taken to this questioning, and I ruled that such evidence was tendency evidence which was inadmissible pursuant to s 97 of the Evidence Act, and that the relevant condition for admissibility, namely the giving of notice, had not been engaged: Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 2) [2021] FCA 1210. 83 Mr Roach then gave evidence as to relevant events on 20 April 2020. He stated that he attended the lunchroom on the site to speak to the inducted workers, and probably arrived there just after 8.00 am. The lunchroom was next to the room where the inductions took place, and he attended the lunchroom together with Mr Kerry Jones of the plumbers' union. 84 Mr Roach stated that the inductees came into the lunchroom at about 8.15 am, following which he spoke to them. Mr Roach stated that with Mr Jones standing beside him, he said, "G'day, fellas. Now that you've completed your induction, can I get you to come over here and take a quick seat while we have a chat to you before you go out on the site", following which the workers sat down at numerous tables. Mr Roach stated that he remained standing, and that he then addressed the group – I introduced myself. I said to the group, "G'day, fellas. My name is Jason Roach. I'm the site HSR and CFMEU delegate. This is Kerry Jones. He's the plumbing HSR and delegate." I then said – I then said to the boys, "Have you all signed onto your SWMS [Safe Work Method Statements], fellas? If you did, I hope you read them very carefully and understood them before you put your signature to them. Now that you have signed onto them, please stick to them." I then said – told – told the workforce that we were having trouble with the lifts on site. I said, "Look, the lifts – we've been having a lot of complaints from the workers on site about the lifts, that they've been waiting too long for them." I said, "Please don't take it out on the drivers. They're only doing their jobs. It's just the way the job is set up and where the lifts are". 85 Mr Roach further stated that he addressed the need to have electrical tools and equipment tested and tagged and told the work group that if there were any issues then, "our ugly mugs" (referring to himself and Mr Jones) were "plastered around the site with our phone numbers underneath". 86 Mr Roach then gave evidence that he asked the workers to bring out their tickets, by which he meant tickets such as high risk, CBUS, CoINVEST, and Incolink tickets. He stated that in response, a person whom he now knew to be Mr Watterston stated, "I don't have to show you any tickets". Mr Roach responded by stating, "that depends on whether you're a union member working an EBA. I need to check your CBUS, Incolink and CoINVEST to make sure it's up to date." Mr Roach gave evidence that he then went and sat at a table and asked the inductees to bring their tickets to him one at a time, which they all did except for Mr Watterston, who brought his tickets over about a minute later. The tickets that were placed on the table included Union membership tickets. Mr Roach stated that the purpose of checking the Union tickets was for the financial status of members. If someone was not financial, Mr Roach would ask them why. Mr Roach stated that in the event a person stated that they did not want to become financial, he would explain to them the benefits of union membership. Mr Roach stated that he checked all the CBUS tickets with an app on his telephone, which could also be used to check Incolink and CoINVEST tickets. As to Union tickets, there was not an app that could be used to check them, but Mr Roach was able to go to a website to ascertain the holder's financial status. The process of checking all the tickets took about five to ten minutes. 87 Mr Roach stated that he started checking all the tickets at once. He stated that after he had been checking all the tickets for about a minute, Mr Watterston placed his Incolink, CoINVEST and Union tickets on the table, and when he placed it on the table he said, "That's an outdated union ticket", to which Mr Roach responded, "That's okay. I can do a check on all of that". Mr Roach stated that after he spoke those words, he continued checking all the other tickets. He found no issues with the tickets of the other workers. As for Mr Watterston, the only issue was with his Union ticket which was out of date. Mr Roach was asked how he knew that was an issue – Q: And how did you come to know that there was an issue? A: When I typed it in, into the web, to find out his financial status, it come up invalid. Showed invalid. I had never seen that before. Q: And after you saw that it had come up invalid, what did you do? A: I rang the union office and spoke to a lady there. 88 Mr Roach's evidence-in-chief concerning his conversation with the lady at the Union office is important – Q: What did you say to the lady? A: I said to the lady – I give her Mr Watterston's union number and I give her Mr Watterston's union number and said, "I've got a fella here. Just want to check his financial status." The lady then said on her system it was showing that Mr Watterston had rang up the union in February and cancelled his union membership ticket. Q: Now, this lady that you spoke to – did you know who she was? A: No, I can't recall who it was. Q: So she said to you that Mr Watterston had cancelled his ticket in February? A: Yes. Q: Right. Did you say anything back to her? A: No. The phone call ended then. 89 Mr Roach stated that he was seated at the table in the lunchroom when he had the telephone conversation with the lady at the Union office. He gave evidence that Mr Watterston likewise was seated during this process. Mr Roach gave evidence that after his telephone call to the Union office the following occurred – I then turned to Mr Watterston and said, "The lady has just told me that you rung up and cancelled your union ticket in February." Mr Watterston then said, "I paid $200 the other day to get my ticket reinstated." 90 Mr Roach then gave the following evidence – Q: All right. And after he said that to you, what did you say? A: I said, "Well, the union office told me that you rang up and cancelled your ticket. There's no – no evidence there of $200. Q: And did you say anything else to him about that, sir? A: Yes. I said to Mr Watterston – I said, "Look, mate. The best thing for you to do is to ring the union office up or, better still, go in to see where this missing $200 is." Q: And what did Mr Watterston say, if anything, to that? A: Mr Watterston then said, "You know what? I'm sick of you [c*nts]. Give me my fucking tickets." He then come and grabbed his tickets off the table and stormed out of the lunch room. 91 Mr Roach stated that Mr Watterston left the lunchroom in the company of Mr Simone. 92 Mr Roach gave evidence that he spoke to Mr Golz, who had called him reporting that he had a caulker who had left the job saying that Mr Roach would not let him start work. Mr Roach stated that he denied these claims to Mr Golz. He stated that he told Mr Golz that he had asked Mr Watterston "to go the Union office or ring up the union office to look where his $200 was, to find where his $200 was" and that Mr Watterston had grabbed his tickets, swore at him, and stormed off. He said that Mr Golz told him that he was going to call Mr Watterston back to see if he could come back to the site. Mr Roach stated that he spoke to Mr Golz again later in the day, who told him that he had called Mr Watterston and told him that he was not prevented from working on the job, and could come back, but that Mr Watterston had said that he was already on another job and was too busy. Mr Roach also recounted that Mr Golz told him that he had asked Mr Watterston if he could send Mr Simone back, but that Mr Watterston said it was a two-man job, which Mr Golz challenged, to which Mr Watterston responded by stating again that he was on another job and that he was too busy. Mr Roach stated that he did not recall whether his later conversation with Mr Golz on 20 April 2020 was by telephone, or in person. 93 Mr Roach stated that Mr Golz called him the following day and informed him that an inspector from the Commission had contacted him, asking questions about what occurred the previous day. He stated that Mr Golz did not tell him what he had said to the inspector. Mr Roach stated that the text exchanges with Mr Golz occurred later in the day, after the telephone call. He said that he was frustrated and disappointed that Mr Watterston had reported "bullshit" to the Commission, and that he wrote the text in frustration. As to his statement in the text that "Melbourne Caulking won't be getting any union work in the future", he stated that he could not and did not take any steps to prevent Melbourne Caulking getting union work. 94 Mr Roach gave evidence that Lendlease subsequently undertook an investigation into the events, and at that point he was referred to a solicitor, Bridie Murphy of Maurice Blackburn. Mr Roach was taken to a file note of instructions prepared by Ms Murphy that he stated he had read numerous times. Mr Roach was also taken to another document subsequently prepared by Ms Murphy titled, "Response to Allegations", which he read at the time it was prepared and considered to be true and correct. Both documents were tendered. Mr Roach – cross-examination 95 As with all the witnesses, Mr Roach gave evidence to the Court from a remote location. Mr Roach stated during the course of his evidence that he was giving his evidence using an iPhone. At one point in his evidence-in-chief, and upon the point being raised by counsel for the applicant, I sought clarification as to what documents Mr Roach had in front of him when giving evidence, and whether he was reading from them. Mr Roach denied that he was reading from any documents when giving evidence. In cross-examination, Mr Roach again denied that he had been reading from a document to assist him in giving his evidence. 96 Amongst other things, Mr Roach was taken to extracts from a CFMEU Delegate Code of Conduct bearing his name and which he had signed and dated 16 November 2017. The Code of Conduct included the following provisions – Delegates shall, to the best of your ability, represent the Union on your particular site. you should be properly trained to enable you to perform the following. 1. The enrolment of members and the maintenance of financial members by continuous checks. 2. Anyone who attends a site that [sic] is not financial and refuses to join, you the Delegate must notify your Organiser immediately. … PLEASE NOTE that failure to meet these obligations may result in Delegates being removed from their position. Your conduct reflects on the Union and therefore your conduct must be exemplary. Ticketing. Check twice a year. Delegates must make sure they and their members are financial before they start work, before April 1 and October 1 each year. … 97 Mr Roach denied that it was important to uphold all the tenets of the code of conduct and gave as an instance provisions relating to a maximum 56-hour week, and 3.00 pm finish on Fridays, which "never happens on all the jobs". Mr Roach stated that he never notified an organiser immediately if someone showed up who was not financial. 98 Mr Roach agreed that he could not force someone to be a member of a union, and that he could not prevent someone working on a project simply because they were not a member of a union, including financial members of a union, and that he could not compel someone to pay membership fees. 99 Mr Roach agreed that in April 2020 CFMEU membership fees were payable in two six-monthly periods, and that they were payable in advance. The first term was from 1 April to 30 September, and the second term was from 1 October to 31 March. Once fees were paid, members received an updated union card that stated the date until which the member was financial. As of April 2020, the membership fee for a six-month term was $515, and for the previous year the fees were $500.50 per term. 100 Mr Roach confirmed his evidence-in-chief that he was standing when he was addressing the workers prior to checking tickets. He confirmed the topics that he addressed and stated that it probably took about three minutes "tops". Mr Roach agreed that he checked to see whether people were financial members of the Union, and that if they were not, he would speak to them about the benefits of membership, and if they were not financial, he would try and persuade them to become financial. He denied that he would make sure that people were financial before starting work on a project. 101 Mr Roach was asked about the process of checking the tickets of the workers, as follows – Q: … I think you said the inductees came up one by one and placed their tickets on that table and then walked back to where they were seated? A: Yes. Q: That's how it occurred? A: Yes. Q: And do I take from that that at the end of that process, essentially, there's a bundle of tickets sitting on the table? A: Yes. Q: And had Mr Simone placed his tickets on the table as part of that process? A: Yes. Yes. Q: And I think you said that Mr Watterston might have come up and placed his on the table subsequently whilst you were looking at some of the other cards; is that right? A: Yes. Q: All right. What would happen once you checked a particular person's ticket? A: I would put them aside and then give them back to them. Q: All right. And when it came to checking the tickets, as I understand it, the last person's tickets you looked at were Mr Watterston's? A: The last person I dealt with was Mr Watterston, but when Mr Watterston brought his tickets and dumped them on the table, I continued checking them altogether. Q: Right? A: Checking them altogether. So I think I may have happened to go back into an app to check Mr Watterston's – either CBUS or Incolink, because I know I completed a few of them going through, and by the time Mr Watterston dropped his tickets, I was probably onto – either I had finished CBUS and was onto Incolink, or vice versa. And I know I had to check one extra of Mr Watterston's – go out of the app and check Mr Watterston's – one of the one's I had missed with him bringing his tickets to me a bit later. 102 Mr Roach confirmed his evidence that he and Mr Jones were standing as he addressed the inductees in the lunchroom. He confirmed the topics that he addressed. He also confirmed his evidence that after his address the inductees came up one-by-one and placed their tickets on the table, with Mr Watterston placing his tickets on the table last. Mr Roach stated that at the time he was checking all the tickets he was seated at a table with Mr Jones and denied walking off to another table to make checks. Mr Roach stated that he had started checking the tickets of other workers when Mr Watterston provided his tickets. Subject to this, Mr Roach stated that he checked all the tickets together. 103 Mr Roach was challenged as to whether he was also completing a "lagging sheet" at the time he checked the Union tickets. Initially, Mr Roach stated that he did not complete the "lagging sheet" at that time, but did so later in the day – Q: And did you have a lagging sheet with you on that day? A: Yes. Q: And were you completing the lagging sheet? A: Not at that time. Q: Did you complete that sheet at any time that day? A: Yes, later on. Q: Later on. And what does that involve? That's a – is that a hard copy document with a pen and paper? A: Yes. Q: And you write on it member name, member number, financial status, and last jobsite? A: Yes 104 Mr Roach agreed that if he was completing the lagging sheet while checking tickets that would add time to the process of checking tickets which Mr Roach quantified as not being "several minutes" but "minutes". Mr Roach was then taken to a document prepared by his solicitor, Ms Murphy, which recorded his instructions in response to allegations that had been put to Mr Roach by Lendlease. That document recorded the following instructions – Jason advised that whilst checking everybody's union ticket he was filling in the CFMEU 'Wagon Sheet' [sic, and which I take to be a reference to the 'lagging sheet'] [T]his is a document provided by the CFMEU to their delegates. They ask the delegates to complete this form with the new workers on site. On the form is a table where you insert the name of the worker, their membership number, whether they are financial or unfinancial, and what their last job was. 105 When it was put to Mr Roach that he was in fact completing the "lagging sheet" while he was checking tickets, he responded, "not fully", which he then explained – Q: What do you mean by "not fully"? A: Well, to save time and to get the workers out on site, I only write their name and ask them what site they come on. That's the only bit I write in while I'm sitting down. And then later, I fill in the rest of the lagging sheet. Q: All right. So when you said to us earlier that you didn't complete it while they were there, and you did it later, that was partially true and partially not true? A: Well, yes. I was partially doing it, and then I finished doing [sic] it out later on. 106 Mr Roach gave evidence that he was seated at a table when he conducted the telephone call to the lady at the Union office and gave evidence that it was likely that Mr Watterston could hear him "loud and clear". 107 Mr Roach was challenged about how long the process of checking all the tickets took, and whether it was five to ten minutes as he had said in evidence-in-chief, or ten to 15 minutes, as he had said in instructions to his solicitor Ms Murphy that were recorded in the response document that she prepared. In response, Mr Roach stated that checking the actual tickets would have taken between five and ten minutes, that the whole process in the lunchroom would have been no longer than 20 minutes, and that it was "15 to 20 minutes tops". 108 Mr Roach was also challenged as to whether he checked CBUS and Incolink documents on a telephone app, referring to his statement to Ms Murphy that referred only to checking CoINVEST on an app, in response to which he stated that he was pretty sure he checked Mr Watterston's CBUS and Incolink status on an app. 109 It was put to Mr Roach that he did not need to check the Union website to know that Mr Watterston's ticket was outdated, because the ticket showed this to be the case. Mr Roach agreed but denied a subsequent proposition that the reason he checked the website was to ascertain what amount in fees were outstanding. 110 Mr Roach confirmed his evidence that when he called the Union office, the lady informed him that her system showed that Mr Watterston had called in February 2020 and cancelled his Union membership. He accepted that the agreed duration of the telephone call of 74 seconds was fairly short, and other than pleasantries, he could not recall saying anything else to the lady. 111 Mr Roach agreed that he did not know anything about the claimed $200 payment by Mr Watterston until after the phone call with the Union office had finished. He was then questioned as to the basis on which he could assert to Mr Watterston that the Union had no record of him paying it – Q: How did you know that the $200 was missing at the CFMEU and – or that they had no record of him paying it? A: I didn't ask. I just – I just asked his financial status and the lady told me what was on the system, that he .. Q: But how – how are you in any position to tell Mr Watterston that his $200 payment was missing? A: Because it wasn't showing up on the system – the union system. The lady would have told me that he paid $200 to reinstate his ticket. Q: You're assuming the lady would have told you he paid $200 even though you didn't ask? A: It would have showed up on the system. If Mr Watterston had paid the $200 a couple of days before that, it would have been showing up on the CFMEU system that he paid the $200. Q: But you didn't talk to her at all about payments. All you talked to her about was his resignation in February? A: That's right. Correct. Yes. Q: So, whether she – he paid $200 or not and whether the union had a record of $200 or not, on your account of the conversation, she wouldn't have spoken to you about that at all? A: No. She didn't speak to me about the $200. Q: Yes. And you weren't in any position either to say that the union had no record of him paying $200 because you didn't discuss it with her; that's right, isn't it? A: Yes.... it would have showed up on the union system. If he had paid the $200, it would have showed up on the union system. 112 Mr Roach then denied that he knew nothing of any $200 payment being missing, or the Union having no record of it, and denied that his account of his conversation with Mr Watterston was made up. 113 It was put to Mr Roach that he had given inconsistent accounts of the exchanges in relation to the claimed statement by Mr Watterston that he had made a payment of $200. Mr Roach was taken to a letter from Maurice Blackburn to Lendlease of 10 July 2020 which recorded Mr Roach's instructions in relation to his telephone conversation with the lady from the Union office on 19 April 2020 in the following terms, and which he agreed was consistent with his evidence-in-chief that the telephone conversation with the lady at the Union office had finished before the suggested $200 payment was raised – 20. Because Mr Watterston said his union ticket was outdated, Mr Roach also checked his financial status on the CFMEU website. The website showed that Mr Watterston's financial status "invalid". Mr Roach called the CFMEU office to ask what this meant. Mr Roach was advised by the CFMEU office that Mr Watterston had called and cancelled his union ticket in February. 21. After this call words to the following effect were exchanged between Mr Roach and Mr Watterston: Mr Roach: "the union is saying that you cancelled your ticket in February." Mr Watterston: "I paid $200.00 to reinstate my membership a couple of days ago." Mr Roach: "well mate, you need to ring the union office, because at the moment they are saying you cancelled your ticket in February, and that $200 is missing because they have no record of your paying it, the best thing for you is to call the union office." 114 Mr Roach was also taken to paragraph 7 of the amended defence that had been filed on his behalf in the proceeding, where it was alleged in subparagraphs (v) to (y) – v. The First Respondent telephoned the Second Respondent's offices to ask what this meant and was advised that Watterston had called and cancelled his union ticket in February 2020; w. The First Respondent told Watterston that the union was saying he cancelled his ticket in February; x. Watterston told the First Respondent he had paid $200 to reinstate his membership a couple of days ago; y. The First Respondent told this to the person he was speaking to at the Second Respondent's offices and was advised that they had no record of Watterston paying $200; 115 Mr Roach had previously agreed that he had read the defence, and that it was prepared by his lawyers and shown to him. He agreed that he had read it at that time, and although he did not recall, he would have checked paragraph 7 to ensure that its contents were accurate. 116 In relation to the claimed conversations about the $200 payment, Mr Roach then gave the following evidence – Q: Surely, you know, Mr Roach, whether or not you had finished the phone call before the $200 conversation with Mr Watterston occurred or not? A: No. Q: Your recollection about a whole range of events of that day has to date been crystal clear but, all of a sudden, you can't recall what happened with this phone call; is that your evidence? A: Yes. I can't recall whether I brought up the $200 with the lady in the union office or whether I – yes – Brendon told me earlier the $200, but I'm pretty sure there was nothing said about $200 from .... the conversation would have gone a lot longer. Q: Even if he had paid $200 and the union had a record of it, he still wouldn't have been financial, would he? A: It all depends. Q: What do you mean "it all depends"? A: Because sometimes the union does deals with the workers, and sometimes there has been workers that are three terms behind and they might knock off two terms and tell them just to pay the one term to get back up to date. Q: Well, did you ask him any questions about that? A: No. Q: Why not? A: Because he told me that he had paid $200 to reinstate his ticket. Q: Well, your account earlier was that you wanted to ensure that members were financial? A: Yes. Q: And he has told you he paid $200. That doesn't – on your account, that either makes him financial or not financial, depending on the circumstances; correct? A: Yes. Q: Why didn't you ask him whether he did a deal with the union for a part payment? A: Because I had rung the union office up to check his financial status to get the proof of what his financial status was - - - Q: No. You didn't. Well – and you didn't – you rang up for that purpose. You didn't get any of that information. All you got told was that he resigned? A: Correct. Yes. Q: Well, that means he had zero financial status? A: Yes. Q: And if he resigned from the union, why would he be paying $200 to the union? A: I don't know. … Q: Why was it any business of yours for him to go down to the union office or not to find out where the $200 was? A: Well, I was trying to help him at that time because he said he paid $200. There was nothing showing $200, so I was trying to help him out to relocate his $200, to find out where his $200 had gone. 117 Mr Roach was then referred to his evidence about his conversations with Mr Golz, and he confirmed his evidence-in-chief that he denied to Mr Golz that he had told Mr Watterston that he could not work onsite or that he had to leave, and that he told Mr Golz that Mr Watterston had claimed that he paid $200 to the Union a couple of weeks previously, and that that the Union did not have a record of it. In relation to his second conversation with Mr Golz, Mr Roach confirmed his evidence-in-chief that he could not recall whether it was on the telephone or face-to-face. Later in the cross-examination, counsel for the applicant put to Mr Roach that shortly after Mr Watterston had left the site, Mr Golz had found him on the project and had a conversation with him in person. Mr Roach denied this, and also denied that Mr Golz had tried to convince or persuade Mr Roach to allow Mr Watterston back on site, which Mr Roach refused because he had not paid. Mr Roach also denied saying to Mr Golz that Mr Simone was okay to work onsite because he was financial. 118 Counsel for the applicant then put to Mr Roach the core components of the applicant's case, which included that his entire account of events in the lunchroom was not accurate, which Mr Roach denied. Mr Roach agreed that he knew that the term fees for the six months commencing 1 April 2020 were $515, and that he knew that one of his responsibilities as a delegate of the Union was to ensure that members were financial before working on the site. However, Mr Roach denied that one of his obligations as a delegate was to ensure that new term fees had been paid before allowing someone to work on a job. Mr Roach was taken again to the Union's code of conduct for delegates, and to the provisions which are set out at [96] above. Mr Roach gave the following evidence in relation to those provisions – Q: And on 20 April, you were trying to comply with the code of conduct for delegates, weren't you? A: Yes. Q: And that's why, after you got off the phone to the union, you went back to Mr Watterston, and you told him that he owed $515? A: No. 119 Mr Roach was then taken to the Union's membership record for Mr Watterston that was in evidence. Mr Roach stated that he had not seen that particular document or documents of that type before. He agreed that there was no reference in the document to a telephone call with Mr Watterston in February 2020 but denied that the lady at the Union had not told him of such a conversation when he called her on 20 April 2020. 120 Mr Roach was asked some further questions directed to his estimates of the time that it took to do all the things claimed in the lunchroom from 8.15 am until 8.24 am when the telephone call to the Union office took place. When it was put to Mr Roach that there was no way that all the events that he described as having occurred in the lunchroom could have taken place within nine minutes, he agreed. Mr Roach agreed that all the events that he described would have taken at least 15 to 20 minutes, which I note was broadly consistent with his evidence-in-chief that the time between the workers entering the lunchroom and Mr Watterston leaving was, "15 to 20 minutes tops". He then stated that they could have commenced with the inductees at 8.10 am, and that he was not sure of the exact time, saying that he had always said that it was "about" 8.15 am. 121 Mr Roach was taken to his text exchange with Mr Golz, in which he stated, "It's his word against mine". He denied that what he meant by that reference was that he was going to make up a story, stating that he did not know what Mr Watterston had said to the Commission. He agreed, however, that he knew what Mr Watterston had said to Mr Golz. Mr Roach denied that in his four minute 20 second telephone conversation with Mr Golz on 21 April 2020 that they discussed an account that did not involve engaging in any unlawful behaviour. 122 Finally, on the question of Mr Roach's state of mind, which was material for the alleged contravention of s 349 of the FW Act by knowingly or recklessly making a false or misleading representation, Mr Roach gave the following evidence – Q: You're aware you couldn't force someone to become a member of a union? A: Yes. Q: You're aware you could prevent someone working on a project simply because they weren't a member of a union? A: Yes. Q: Now, that extended to persons who were members, but who were not financial members of a union; correct? A: Yes. Q: You knew you couldn't compel someone to pay membership fees to the union in order to work on a project? A: Yes. Mr Roach – re-examination 123 In re-examination Mr Roach gave evidence that – (a) as to the text exchange with Mr Golz which I set out at [63] above, Mr Golz had sent the messages, "Come to my office, please, for a chat", and "I can't believe they all trying to find out haha"; (b) he could not recall whether or not he looked very closely at the amended defence that had been filed on his behalf to which he had been taken in cross-examination (see [114] above); and (c) in relation to the letter dated 10 July 2020 that was sent on his behalf by Maurice Blackburn to Lendlease, the references in [10] and [29] of the letter to the Lendlease site induction ending at "around 8:15am" reflected that it was around that time, and that he could not give a specific time, and that the same applied to his evidence-in-chief where he said that the workers came into the lunchroom "about 8.15". Evidence of Mr Jones Mr Jones – evidence-in-chief 124 Mr Jones was employed at the site as a plumber by A G Coombs Ltd. He described himself as a working shop steward who was also a health and safety representative. There were about 40 plumbers on the site. 125 Mr Jones stated that it was usual for him and the other health and safety representatives to undertake an induction for new workers to the site, and to give them a rundown of the site after Lendlease had finished its induction. He was present in the lunchroom on the morning of 20 April 2020. He could not remember how many workers were there, and he could not remember at about what time Mr Roach first spoke to the workers. Mr Jones stated that he and Mr Roach were seated at one of the tables when the workers took a seat, although some were standing. Mr Jones gave evidence that he and Mr Roach both spoke, although Mr Roach did most of the speaking. Mr Jones was asked what precisely was said on the day in the "spiel", to which he responded – We just told them about the accesses; how – and what high-risk work was happening at the moment. And we also chip in and say where they could find parking – cheap parking – where they could get their lunch, and make sure they .... about their SWMS, and make sure that they fill them out properly. 126 Mr Jones stated that the "spiel" lasted five or six minutes, after which they asked to check the workers' industry tickets. He stated that he and Mr Roach were seated at the same table as they were checking tickets. As he was checking his tickets, he heard one person say, "I only have an old ticket". Mr Jones's evidence continued – Q: Now, after the worker had said the things that you've outlined, did Mr Roach say anything? A: He said, "Well, just give me the card and I will have a look." Q: And did he – did the worker do anything? A: Well, he said, "I've only got an old card, but I paid the union $200 last week." Q: And did Mr Roach do anything? A: He said, "Well, I will ring the union and see what's happening with it." 127 Mr Jones then observed Mr Roach grabbing his telephone and dialling a number upon which Mr Roach stood up and went away and asked some questions. Mr Jones stated that Mr Roach returned to the gentleman, who was standing a metre or two from the table, and who had previously been "just standing around". Mr Jones said that Roach stated, "They have no record of your $200 you said you paid, and you resigned last February from the union", following which Mr Roach said, "You can either go to the union office or ring them there and see if they can sort it out for you". Mr Jones stated that the gentleman then "reached over – walked up and grabbed his tickets and said, 'I'm sick of you [c*nts]', and stormed off". Mr Jones was asked how long it was from the time that he and Mr Roach started talking to the workers to the time the gentleman stormed off, to which he responded, "eight or nine minutes, if that". Mr Jones stated that after the gentleman stormed off, Mr Roach "just went to the other blokes and asked for their tickets". 128 Mr Jones also gave evidence that the solicitors for Mr Roach spoke to him in mid-2020, and then emailed to him a document setting out his instructions which was in the form of an unsigned statement which Mr Jones stated conformed with his recollection of events, and was true and correct. The unsigned statement was tendered. Mr Jones – cross-examination 129 Mr Jones was taken to a file note of his instructions taken by a solicitor from Maurice Blackburn dated 3 July 2020 titled "Instructions from Kerry Jones". Mr Jones stated that he had seen the document before, and that it had been sent to him. He was asked about the following words in the solicitor's note – 5. After company inductions, we can't use the induction room for our safety induction. We have to take them into the lunch room and we have our spiel there. I have heard Roachie say things like: "now you have finished your induction can I get you all to take a quick seat here and I will introduce myself and the other HSRs and have a quick chat to you before you all go out." We normally say something like that to the new people after they finish the company induction. 130 The significance of this paragraph is the words in quotations, which are virtually verbatim the same words that were used in a file note of instructions taken by the solicitors from Mr Roach. Mr Jones did not recall using those words to the solicitor but agreed that he probably did so. 131 Mr Jones confirmed his evidence that he and Mr Roach were seated at the same table. However, in response to a direct question whether Mr Roach was seated at the same table when he was talking, Mr Jones stated, "I don't know" – Q: Mr Roach, he [came] and sat down next to you, did he? A: No, he was sitting at the other end of the table, and as they came out, he called them over. Q: Yes. And when – you said Mr Roach did most of the talking, but you did – you had a bit of a go as well? A: Yes. Q: When Mr Roach was doing the talking, he was sitting at – seated at the table? A: I don't know. Q: All right? A: No, I think he – I don't know. 132 Mr Jones stated that his recollection was not assisted by the note of the instructions recorded by the solicitor from Maurice Blackburn, acting for Mr Roach, where Mr Jones was recorded as having instructed that, "We sat down with the induction group and spoke to them about safety on the site". Mr Jones accepted that his recollection of events was likely to have been fresher at the time of giving the instructions. However, Mr Jones further stated that he did not recall giving these instructions. 133 Mr Jones agreed that he and Mr Roach discussed with the workers high-risk work, parking, where to get lunch, safe work method statements (SWMS), access, and drop zones. Mr Jones stated that it was he who spoke to the workers about parking and access. It was unclear from Mr Jones's evidence whether he or Mr Roach spoke to the workers about where to get lunch. Mr Jones accepted that this process took about five to six minutes. 134 Mr Jones gave evidence about checking the tickets of the plumbers, which did not involve using an app. Rather, he took a photograph of the tickets, which sometimes he then checked back at the office. He stated that he had been engaged in the process of checking his two members' tickets for five minutes before overhearing someone saying to Mr Roach that his ticket was out of date. 135 Mr Jones confirmed his evidence that Mr Watterston dropped his cards on the table and said that his ticket was out of date or expired, before stating that he had put $200 on it last week, in response to which Mr Roach stated, "I will ring up the union office and see what's going on with it". Mr Jones also confirmed his evidence that when Mr Roach made the call he got up from the table and walked a metre or two away. Mr Jones stated that he heard only the beginning of the call, and once Mr Roach moved away from the table, he could no longer hear him. He also confirmed his evidence that Mr Roach told Mr Watterston that the Union did not have a record of the $200 payment and that he should call or go to the Union office to sort it out, following which Mr Watterston swore at Mr Roach, grabbed his tickets, and walked off. 136 Counsel for the applicant then put the applicant's case to Mr Jones. Amongst other things, Mr Jones denied that he had made up his account of events in the lunchroom so as to broadly align with and corroborate Mr Roach's account. Mr Jones was not re-examined. Evidence of Ms Murphy 137 Ms Murphy was a solicitor employed by Maurice Blackburn which was engaged by Mr Roach to act for him in relation to investigations undertaken by the Commission and by Lendlease in mid-2020. Ms Murphy presented as an impressive witness whose evidence was considered and direct, and no credibility issues arise in relation to her evidence. 138 The main points the subject of Ms Murphy's evidence were that – (a) she prepared a file note of instructions from Mr Roach that was completed on 2 June 2020 which was based upon telephone conversations and an exchange of emails with Mr Roach; (b) she later took specific instructions from Mr Roach on 2 July 2020 in response to allegations that were made in a letter from Lendlease, and recorded those instructions in a document that supplemented the first document; (c) she did not herself speak to Mr Jones, but another solicitor at Maurice Blackburn, Mr Sutton, spoke to Mr Jones on 3 July 2020; (d) she spoke to Mr Golz by telephone on 10 July 2020, but did not have any independent recollection of the content of the conversation, and her recollection was not assisted by a reasonably contemporaneous handwritten file note of the conversation made that day, which was tendered; and (e) the instructions from Mr Roach then formed the basis of a response that was prepared to Lendlease. 139 In relation to Mr Sutton's notes of his instructions from Mr Jones, in cross-examination Ms Murphy accepted that one of the passages concerning what was said by Mr Roach at the commencement of his address to the workers seemed identical to the words that Ms Murphy had recorded in her notes of her instructions from Mr Roach. Ms Murphy accepted that her document had been prepared first, and that she could not explain how Mr Sutton came to prepare the corresponding passage in his document recording instructions from Mr Jones. 140 In cross-examination, Ms Murphy was asked about a difference between what was recorded in her file note of instructions taken from Mr Roach, and a letter that she sent to Lendlease dated 10 July 2020. Both the note of instructions and the letter recorded Mr Roach's response to an allegation made by Lendlease that after taking Mr Watterston's and Mr Simone's cards, they remained in the lunchroom for approximately 20 minutes while Mr Roach made a series of calls. In her note recording Mr Roach's responses to allegations put by Lendlease, Ms Murphy recorded Mr Roach as instructing that – I deny that after taking Mr Watterston and Mr Simone's cards they stayed in the lunchroom for about 20 minutes. I think the whole process of me checking all 6 of the new inductees my exchange with Brendan took about 10-15 minutes. … 141 In the letter that Ms Murphy sent to Lendlease, Mr Roach's response was as follows – Mr Roach denies that after taking Mr Watterston and Mr Simone's cards they stayed in the lunchroom for about 20 minutes. Mr Roach estimates that the whole process of providing the health and safety information, checking all the tickets of the 6 of the new inductees and his exchange with Mr Watterston … together took about 15 minutes. … 142 Ms Murphy gave evidence that the first draft of the letter to Lendlease was prepared by Mr Sutton, that she did not recall Mr Roach giving any instructions concerning the change in response, and that she did not notice any differences between the file note and the letter. 143 In relation to her handwritten file note of her conversation with Mr Golz, Ms Murphy was taken through its contents which, with some extrapolation, was as follows – [Advised] acting for Jason Roach re Lendlease. [Explained] call & that confidential discussion. [Golz] aware of incident but difficult to remember. Went through Jason instructions. Remembers call [with] Watterston told that not allowed on site by Jason Thinks called Jason after and he said he was. So called [Watterston] back, not sure how long walked out of building maybe 15 mins [Watterston] said already left Thinks came back another day to complete Wouldn't be drawn on further detail can't recall. [Advised] would be in touch if anything else required. OK to call back if need be. The parties' submissions 144 The submissions of the parties focussed on the factual findings that the Court should make, with detailed references to the oral and written evidence before the Court. Those submissions were made in a context where, on central issues, the evidence of Mr Watterston and Mr Simone on the one hand, and Mr Roach and Mr Jones on the other, was in direct conflict. In general terms, counsel for the respondents submitted that the evidence given by Mr Watterston and Mr Simone was inconsistent and unreliable, and counsel for the applicant submitted that central elements of the evidence of Mr Roach and Mr Jones were contrived. Both counsel treaded carefully in relation to the evidence of Mr Golz, whose evidence presented a number of problems to which I have alluded. Yet both counsel submitted that I should accept different aspects of Mr Golz's evidence. Submissions of the applicant 145 The gravamen of the submissions of counsel for the applicant was that Mr Watterston and Mr Simone were witnesses of credit, and that their evidence was supported by circumstantial facts, and contemporaneous accounts. Counsel submitted that there were no inconsistencies of any substance in their evidence, that they had no motive to lie, and that none was put in cross-examination. Counsel submitted that motives to lie that had been foreshadowed on behalf of the respondents in argument fell once it became apparent that Mr Watterston had not seen the documents on which counsel for the respondents sought to base the cross-examination. Counsel submitted that while Mr Watterston was cross-examined so as to suggest that his perception of the events was affected by an expectation that he would be challenged by the representatives of the Union because he was unfinancial, thereby leading to a misunderstanding as to what Mr Roach said, that suggestion had been rejected by Mr Watterston. Furthermore, it was submitted that the diametrically opposed accounts of the totality of what occurred in the lunchroom could not be reconciled on the basis of some misunderstanding. Counsel submitted further that no challenge of any sort was made to Mr Simone's evidence, save for compliance with Browne v Dunn (1893) 6 R 67 by putting the respondents' case. 146 Counsel for the applicant submitted that Mr Golz, in terms of his oral testimony, was a witness of some limited reliability, owing to the fact that he was prepared to accept almost any proposition put to him by either counsel. However, counsel submitted that there were aspects of Mr Golz's evidence which did not involve the acceptance of propositions in leading questions and which were therefore were more reliable. Counsel submitted that the Court should place more reliance on Mr Golz's contemporaneous accounts, which were to be found in his email to Mr Silver and Mr Geschke of 22 April 2020, and Ms Dunsby's notes of her conversation with Mr Golz on 21 April 2020. Counsel submitted that weight should also be given to that part of Mr Golz's evidence-in-chief which was responsive to non-leading questions, relevant parts of which I have extracted at [60] above. Counsel submitted that the Court should accept Mr Golz's evidence that he spoke to Mr Roach face-to-face onsite on the morning of 20 April 2020 between the telephone conversation between Mr Watterston and Mr Golz at 8.28 am, and the second telephone conversation between them at 9.01 am, although counsel also submitted that the question whether a face-to-face meeting took place between Mr Golz and Mr Roach in that time period did not matter a great deal. 147 Counsel for the applicant also relied on Mr Silver's emails, including the email of 21 April 2020 to a manager of Lendlease where he stated, "…Melbourne Caulking were not allowed onsite by Roachy so I will need to find another contractor", submitting that Mr Silver must have obtained this information from Mr Watterston, Mr Golz, or both. Counsel submitted that the contents of Mr Silver's email to the manager at Lendlease stating that another contractor would have to be found was consistent with the representation of Mr Watterston recorded in Ms Dunsby's file note of her first conversation with Mr Watterston (see [36] above, fifth bullet point). 148 As to the evidence of Mr Roach, counsel for the applicant submitted that Mr Roach had made up a false narrative around all the surrounding events in the lunchroom, and that his and Mr Jones's accounts were untrue. Counsel submitted that the evidence of Mr Roach and Mr Jones, that Mr Watterston and Mr Simone had stormed off in frustration, was contradicted by the circumstance that they did not storm off but waited outside for the purpose of ascertaining whether they would be permitted to work on the project, which they wanted to do. 149 Counsel for the applicant submitted that what Mr Roach had done was wholly consistent with the Union's code of conduct for delegates (see [96] above). Counsel relied on Mr Simone's account that Mr Roach stated to Mr Watterston that he owed $515 (see [51], [55], and [56(6)] above), which corresponded to the amount in Union dues that would have been payable by Mr Watterston for the six month period commencing 1 April 2020 had he been a member and not resigned. 150 As to the references in the evidence of Mr Roach and Mr Jones to Mr Watterston stating that he had paid an amount of $200, counsel for the applicant submitted that this was made up. Counsel relied on the evidence of Mr Watterston and Mr Simone that no figure had been mentioned by Mr Watterston. 151 Counsel for the applicant submitted that Mr Roach, in the course of giving his evidence, had been assisted by reading from a document setting out the substance of his evidence. Counsel for the applicant relied on an aide mémoire that compared the oral evidence of Mr Roach with a file note of the instructions he gave to his solicitor Ms Murphy, and the account that Ms Murphy recorded in her letter to Lendlease dated 10 July 2020. During closing addresses, I informed counsel for the applicant that I would not pay any regard to a further comparison with the outline of evidence of Mr Roach that had been served, because no leave had been sought to cross-examine Mr Roach on his outline, no cross-examination on the outline had taken place, and the outline was not in evidence as an exhibit. 152 Counsel for the applicant put an alternative submission that if the Court did not accept that Mr Roach was reading from a document while giving evidence, that his evidence was entirely rehearsed, which it was submitted was apparent from features of Mr Roach's presentation. When I put to counsel for the applicant that he had not cross-examined Mr Roach so as to suggest that his evidence was rehearsed, counsel responded by stating that the submission was not important to the applicant's case, and that of more significance was the combined force of claimed inconsistencies in Mr Roach's evidence. 153 One of the main features of the evidence relied on by the applicant was the question of the time available to Mr Roach to undertake all steps that he identified in his evidence between 8.15 am, which was the suggested time at which the Lendlease induction concluded, and 8.24 am when he made the call to the Union's office as evidenced by the telephone records which formed the basis of the statement of agreed facts. Counsel referred to the failure of Mr Roach to mention in his evidence-in-chief that while checking union tickets he was also completing a "lagging sheet", and to the changes in his evidence during cross-examination to which I referred at [104] to [105] above. Counsel submitted that Mr Roach's evidence in cross-examination that he only partially filled out the lagging sheet while checking tickets, and that he finished the sheet later should not be accepted. Counsel submitted that Mr Roach's evidence about a lagging sheet was part of a concoction, and it was the applicant's case that no cards were checked before those of Mr Simone and Mr Watterston. 154 Counsel for the applicant submitted that at a bare minimum the process that Mr Roach described as having taken place in the lunchroom would have taken at least 20 minutes, when on the applicant's case the process took only nine minutes (from 8.15 am to 8.24 am), which was consistent with Mr Watterston's and Mr Simone's evidence of events. Counsel referred to Mr Roach's evidence to which I referred at [121] above that the process he described could not have occurred within nine minutes, but took 15 to 20 minutes, and submitted that this estimate was highly ambitious when account was taken of all the events that were said to have occurred. Counsel submitted that Mr Roach's evidence in cross-examination that his process with the inductees could have commenced at 8.10 am was an attempt to accommodate his account of events which he had acknowledged could not have occurred within nine minutes. 155 Counsel for the applicant relied on a claimed inconsistency between instructions from Mr Roach that were recorded by Ms Murphy that Mr Watterston's tickets were the last that he checked, and his evidence in cross-examination to which I referred at [102] above that the last person with whom he dealt was Mr Watterston, but that he was checking the tickets altogether. 156 Counsel for the applicant relied on the differences between Mr Roach's account recorded by Ms Murphy in her file note that the whole process of checking tickets and the exchange with Mr Watterston took "about 10-15 minutes", and the account in the letter dated 10 July 2020 sent by Maurice Blackburn to Lendlease which claimed that the process of providing the health and safety information and the card checking took "about 15 minutes". I referred to Ms Murphy's evidence of these accounts at [141]-[143] above. Counsel submitted that the time of Mr Roach's call to the Union office became known on 7 July 2022 to be 8.24 am, when a copy of the telephone record was sent by Lendlease to Maurice Blackburn. Counsel submitted that this knowledge of the exact time of the call accounted for the change in timing of events as described by Mr Roach, and that the Court should find that the change had been made by Mr Sutton of Maurice Blackburn, who had drafted the letter. 157 Counsel for the applicant relied on the terms of the CFMEU Delegate Code of Conduct to which I referred at [96] above, and submitted that it was likely that Mr Roach, a delegate of some 15 to 20 years, had relevantly followed the Code of Conduct in this instance, and that if he had done so he would done exactly what Mr Watterston and Mr Simone said he did. 158 Counsel for the applicant relied on claimed inconsistencies in the evidence of Mr Roach concerning what apps were used to check cards. 159 Counsel for the applicant submitted that a more significant issue was the reason for which Mr Roach telephoned the Union office, which counsel submitted was to ascertain how much Mr Watterston owed, in circumstances where Mr Roach had been told by Mr Watterston that his Union ticket was out of date, and submitted that Mr Roach's evidence to which I referred at [116] above that he was trying to help Mr Watterston should be rejected. 160 Counsel for the applicant relied on the terms of Mr Roach's text message to Mr Golz to which I referred at [64], and the reference to "his word against mine" and the threat to black-ban Mr Watterston and Mr Simone from union sites. Counsel submitted that Mr Roach's explanation for these statements along the lines that he was frustrated and angry, and that he and the Union could not give effect to a black-ban, were rehearsed answers and should be rejected. 161 Counsel for the applicant submitted that the Union's records that were tendered did not support Mr Roach's account of his conversation with the lady at the Union's office. Counsel submitted that the Union's records supported findings that upon the Union receiving Mr Watterston notice of his resignation by email, the Union identified that the sum of $412.50 remained owing for the six-month term ending 31 March 2020. That payment was made by Mr Watterston on 28 October 2019 and was processed by the Union on 30 October 2019. On 3 February 2019, the Union then processed Mr Watterston's resignation, noting that a payment had been made, and that the member was financial. 162 Counsel for the applicant referred to the evidence concerning Mr Roach's telephone conversation with the lady at the Union office. Counsel submitted that on every account given by Mr Roach he had finished his call before any question of a $200 payment arose. Counsel relied on – (a) Mr Roach's evidence-in-chief of the telephone conversation to which I referred at [88] above, which made no mention was made of the $200 amount; (b) Mr Roach's evidence-in-chief to which I referred at [89] above in which he stated that Mr Watterston referred to a $200 payment after he had concluded his telephone conversation with the lady at the Union office; (c) Mr Roach's evidence in cross-examination to which I referred at [111] above that he did not talk to lady at all about payments, that all that he talked to her about was Mr Watterston's resignation in February, and that he did not know anything about the claimed $200 payment until after the telephone call with the lady at the Union office had finished; (d) paragraph [21] of the letter from Maurice Blackburn to Lendlease dated 10 July 2020, to which I referred at [113] above; (e) Mr Watterston's evidence-in-chief to which I referred at [30] above that Mr Roach completed his telephone call before he came over to speak to him; and (f) Mr Simone's evidence-in-chief to which I referred at [51] above that Mr Roach had finished his telephone call before he came over and spoke to Mr Watterston. 163 Counsel submitted that in light of this evidence, there was "no way" that Mr Roach could possibly have said to Mr Watterston after the telephone call to the Union office that "$200 is missing because they have no record of your paying it" as Mr Roach had claimed in his instructions taken by Ms Murphy, and which found their way into the letter of 10 July 2020 from Maurice Blackburn to Lendlease. Nor could the case alleged on Mr Roach's behalf in his defence (see [114] above), which he stated he had read at the time it was prepared, be reconciled with the evidence. Counsel for the applicant noted that Mr Jones had recounted a different version of events to which I referred at [126] above in which Mr Watterston was said to have told Mr Roach of the $200 payment before Mr Roach made the call to the Union office. 164 Counsel for the applicant relied upon a number of other claimed discrepancies between the evidence of Mr Roach and Mr Jones, as follows – (a) Mr Roach repeatedly said that he was standing when giving his presentation to the workers (see [84], [100] above), whereas Mr Jones gave evidence and instructions to Maurice Blackburn that both he and Mr Roach were seated during the presentation (see [125], [131], [132] above); (b) the accounts of what Mr Roach said to the workers differed, in that – (i) Mr Roach stated in evidence-in-chief (see [84] to [85] above) that the topics that he covered were the signing of safe work method statements (referred to as "SWMS"), trouble with the lifts on site and a request not to take it out on the drivers who were only doing their jobs, a request to ensure that any electrical equipment was tested and tagged and that Nilsen was the electrical contractor on site which would test and tag free of charge, and if there were any issues on site then pictures of him and Mr Jones were plastered around the site with their telephone numbers underneath; (ii) Mr Jones stated in evidence-in-chief (see [125] above) that Mr Roach did most of the speaking, and that the topics covered by them were accesses, what high risk work was then happening, where the workers could find cheap parking, where they could get their lunch, and to make sure that their SWMS were filled out properly. I pause to note that in cross-examination (see [133] above) that Mr Jones stated that he spoke to the topics of accesses and parking and that it was unclear from his evidence who spoke to the topic of suitable places to purchase lunch; (c) Mr Roach stated that the "spiel" took about three minutes, whereas Mr Jones stated that it took five to six minutes; (d) in relation to the checking of the tickets, Mr Roach's instructions to Maurice Blackburn as reflected in Ms Murphy's note were that he checked the tickets of six inductees, and that Mr Watterston's tickets were the last that he checked, whereas it was submitted that Mr Jones's evidence was that the exchange with Mr Watterston happened right at the start of the ticket checking process; (e) counsel relied on a claimed inconsistency between Mr Jones's evidence that he had been checking his tickets for five minutes, which only involved photographing them, and Mr Roach's account that he checked Mr Watterston's tickets last after he had checked tickets on apps for five other people; (f) Mr Roach stated in evidence that when he made the telephone call to the Union office, he was seated at a table in the lunchroom within earshot of those around him, whereas Mr Jones gave evidence that he heard Mr Roach commence the call, but that Mr Roach then stood up and walked away after which he could no longer hear him; (g) Mr Roach gave evidence that Mr Watterston was seated during the ticket-checking process, including during their conversation after Mr Roach's telephone call to the Union office, whereas Mr Jones gave evidence that Mr Watterston was standing a metre or two from the table when Mr Roach spoke to him after the telephone call, and that prior thereto Mr Watterston was just standing around; and (h) finally, counsel for the applicant relied on a claimed inconsistency between Mr Jones's instructions as recorded in a Maurice Blackburn file note that was tendered where Mr Jones was recorded as instructing that "Watterston called Roachie a [c*nt]", and Mr Jones's evidence that Mr Watterston said, "I'm sick of you [c*nts]". Submissions of the respondents 165 Counsel for the respondents accepted that if the applicant was successful in persuading the Court that the conversation as alleged in [8] of the applicant's statement of claim occurred, then they did not cavil with the idea that the applicant would succeed on the threat limb of s 348 of the FW Act, and in relation to the misrepresentation claim. However, counsel for the respondents submitted that the evidence of Mr Watterston was wholly unreliable and could not be accepted by the Court as forming a reasonable basis to be satisfied that the conversation alleged in [8] of the applicant's statement of claim occurred, having regard to s 140(2) of the Evidence Act. 166 Counsel for the respondents made an overarching submission that even if the Court found that Mr Watterston and Mr Simone were doing their best as witnesses, and that their evidence reflected their genuine beliefs as to what occurred in relation to the critical conversations with Mr Roach on 20 April 2020, then their beliefs were predicated on a misunderstanding in circumstances where both Mr Watterston and Mr Simone could not be sure precisely what had been said. In relation to Mr Watterston, counsel relied on evidence that he gave in cross-examination which I have set out at [39(13)] above, that he could not recall the exact words used by Mr Roach when conveying that he would have to take the issue of payment up with the Union office, and that "I couldn't tell you what he said to be honest". As for Mr Simone's evidence, counsel relied on his evidence in re-examination to which I referred at [57] above that he did not recall any sum being mentioned by Mr Watterston as having been paid to the Union. 167 Counsel for the respondents spoke to an aide mémoire titled "Respondents' note on Mr Watterston's evidence" which claimed that there were a number of inconsistencies in the different accounts given by Mr Watterston, some of which were accepted to be of minor significance, and that for other reasons his evidence was not reliable – (a) In a database extract of the Commission that was tendered, Mr Watterston was recorded as having told an inspector employed by the Commission at 10.53 am on 20 April 2020 that he was told by a CFMMEU delegate, "if he doesn't have a ticket, he cannot start work, alternatively he could pay a fee of $500 on the spot to begin work on the project". Counsel submitted that the idea that Mr Watterston had to pay $500 "on the spot" to begin work did not appear in his later statement, and he did not give evidence about it. Counsel submitted that a similar note was made by Ms Dunsby in her file note of 20 April 2020 where Mr Watterston was recorded as instructing that Mr Roach told him that "he could pay him $500 upfront", which Mr Watterston refused. (b) The Commission's case database extract of 20 April 2020 also recorded Mr Watterston as stating that after Mr Watterston contacted Geschke Plumbing and told them about the situation, that Geschke Plumbing spoke to Lendlease, and that the response was "we have no work for you". Counsel for the respondents submitted that this was directly contradicted by evidence that Mr Watterston gave to the Court, and also that Mr Watterston denied in cross-examination that he was told that Lendlease said it had no work for him. (c) Counsel for the respondents submitted that Mr Watterston's evidence to the Court included matters that were not in the statement that he gave to Ms Dunsby, the pleaded allegations, or any prior accounts given to the Commission. In summary, the main matters relied on were as follows – (i) in his evidence, Mr Watterston stated that after he and Mr Simone were told to take a seat, Mr Roach "went off somewhere", and then came back and asked for their "cards" (plural), whereas in his statement to the Commission of 6 May 2020 Mr Watterston referred to Mr Roach requesting a "card" (singular); (ii) there was an inconsistency between [37] of Mr Watterston's statement to the Commission, which I have set out at [37] above, which has Mr Roach telling Mr Watterston that the app on his phone showed that he owed $500, whereas his evidence to the Court was that Mr Roach had made a telephone call before he came back to speak to him and told him that he had to pay money; (iii) there were further inconsistencies between the [36] and [37] of Mr Watterston's statement to the Commission and the pleaded case and his evidence in that the statement and the pleaded case made no reference to Mr Watterston stating to Mr Roach that he had made any payment to the Union, or that Mr Roach had said to Mr Watterston that this was a matter that he had to take up with the Union; (iv) that aspect of Mr Watterston's evidence where he stated that he went back to Mr Roach and sought and obtained clarification that if he did not pay the money that was sought he would not be permitted to work at the site, did not form any part of his statement to the Commission, or the conversation that had been pleaded by the applicant in the statement of claim, and which counsel submitted was a recent invention; and (v) Mr Watterston's evidence that he said to Mr Roach, "well, [eff] you" before walking out did not feature in either his or Mr Simone's statements to the Commission, and Ms Dunsby gave evidence only that Mr Watterston had told her that he had "said something under his breath", but that she did not record it because she did not know what it was that he had said under his breath. (d) Counsel submitted that the conversation alleged in [8] of the statement of claim was not something that Mr Watterston was able to articulate, even in similar terms, in his evidence-in-chief, and that Mr Watterston's evidence should be viewed as impressionistic and unreliable. (e) Counsel pointed to the evidence of Mr Watterston that he and Mr Simone had talked about the case for over 12 months, to the evidence of Mr Simone that he had read Mr Watterston's statement, and to Mr Watterston's evidence that he had seen something that Mr Simone had said to the Commission. Counsel submitted that notwithstanding this evidence, Mr Watterston's account was inconsistent with that of Mr Simone in a number of respects – (i) counsel submitted that Mr Simone's evidence that Mr Watterston tried to have Mr Roach say that he could not work at the site before finally putting to Mr Roach in terms that he could not work at the site unless he paid his union fees was not a matter about which Mr Watterston gave evidence, and was wholly unlike the interaction alleged in the applicant's statement of claim; (ii) whereas Mr Watterston stated in evidence that upon taking a seat at the table in the lunchroom Mr Roach walked off for a short period before speaking to him, Mr Simone did not give this evidence; (iii) Mr Simone's evidence that when Mr Roach was making the call to the Union office that he and Mr Watterston were "sort of giving each other the eye" because "they knew what was happening" was not described by Mr Watterston in his evidence, and that Mr Simone's evidence supported the respondents' case that Mr Simone and Mr Watterston had a preconception about Mr Roach and what he was doing; and (iv) Mr Simone did not give evidence, as Mr Watterston had, that Mr Watterston turned around and walked back to Mr Roach to seek clarification as to what the position was in relation to his ability to work at the site. (f) Counsel for the respondents submitted that Mr Watterston's recollection of events was poor and impressionistic. Counsel pointed to a number of concessions that Mr Watterston made during the course of his evidence about the state of his memory. Counsel relied on the evidence of Mr Watterston in cross-examination that I have set out at [39(12)] above that he "could have" mentioned a figure of $200 to Mr Roach, and that he might have just guessed the amount. Counsel also submitted that there was an apparent acceptance by Mr Watterston that he had told Mr Roach that an amount had been paid recently. (g) In further support of the submission that Mr Watterston's evidence was impressionistic, counsel relied on Mr Watterston's reference in his evidence that is set out at [43] above to the "general gist" of what he was told. Counsel also relied on Mr Watterston's evidence in cross-examination that is set out at [39(13)] above that he was "just speculating" as to what was said, and that "I couldn't tell you what he said to be honest" as compounding the position. (h) Counsel for the respondents submitted that Mr Watterston's account was clouded by preconceived ideas about the Union, and preconceived ideas about being prevented from working on the site by a Union delegate if he did not have a ticket. Counsel submitted that these matters explained why Mr Watterston was quick to react, and on Mr Roach's account reacted in a way that was disproportionate by swearing and leaving abruptly. Counsel relied on a number of matters as contributing to Mr Watterston's perception, the main ones being – (i) statements made by Mr Watterston and Mr Simone to the Commission that they avoided going onto union sites where union delegates tend to put up barriers to entry; (ii) Mr Watterston had made enquiries of Geschke Plumbing to check that he was not required to be a union member in order to work at the site, which was a concern to which Mr Simone also referred in his evidence; (iii) Mr Watterston perceived that unions were interested in getting fees; (iv) Mr Watterston formed an impression upon first seeing Mr Roach that he was a union delegate and that he might pose some issues, and Mr Simone had referred in his statement to the Commission to Mr Roach's rugged look, black Union top, and black hard hat with stickers; (v) Mr Watterston gave evidence in cross-examination that he was concerned that Mr Roach might not permit him to work on site if he was not a paid-up Union member and had views about the power exercised on building sites by occupational health and safety representatives who were also union delegates; and (vi) Mr Watterston's evidence about his hesitation before handing over his cards was indicative of a preparedness to walk away from the site, and his readiness to leave in the face of what he perceived to be opposition from Mr Roach. 168 Counsel made the following submissions concerning the evidence of Mr Simone – (a) Mr Simone's views about union delegates were aligned with those of Mr Watterston, and had similarly clouded his perceptions of events; and (b) Mr Simone's evidence that he recalled Mr Roach referring to the sum of $515 when speaking to Mr Watterston was the product of reconstruction, as indicated by the terms of his evidence in cross-examination which I have set out at [57(6)], and the terms of his evidence in re-examination which I have set out at [57] above. 169 As to the evidence of Mr Jones, counsel for the respondents made the following submissions – (a) Mr Jones presented as a somewhat earnest witness who did not have the level of sophistication of Mr Roach or Mr Simone. Nonetheless, he was clear in his answers, and was vehement in his denials that he had made up an account to assist Mr Roach. It was submitted that Mr Jones was not shaken in cross-examination, and that his evidence was consistent with the account that he had given to Maurice Blackburn that was recorded in their note made in July 2020. In relation to those instructions, it was submitted that it was not put to Mr Jones that those instructions were the product of some reconstruction by Maurice Blackburn. (b) It was not put to Mr Jones that he had ever spoken to Mr Roach about his evidence, or about the case generally, or that Mr Jones had any notion or idea about what Mr Roach's version of event was. (c) Although there were some minor differences between Mr Roach's and Mr Jones's accounts, such as some of the topics covered in the "spiel", and whether Mr Watterston mentioned the payment of $200 before or after Mr Roach called the Union office, the fundamental, critical aspects of Mr Jones's account were on all fours with Mr Roach's account. 170 In relation to the evidence of Mr Roach, counsel for the respondents made the following submissions – (a) First, it was submitted that there was no evidentiary basis to find that Mr Roach was reading from a document when giving evidence. Further, it was not put to Mr Roach that his evidence had been rehearsed or practised. Otherwise, Mr Roach had stated in examination-in-chief that he had read the statement that he had given to Maurice Blackburn, which was reasonably contemporaneous, many times (see [94] above). It was submitted that the fact that there was consistency between Mr Roach's evidence and his statement bolstered rather than undermined his credibility. (b) In response to the submissions made on behalf of the applicant directed to assailing the credibility of Mr Roach's evidence, counsel for the respondents responded that – (i) in relation to the window of time within which the events in the lunchroom took place, there was no objective evidence as to when the events commenced, and that the oral evidence on the issue varied, and even the statement of claim pleaded a commencement time that did not sit with the objective evidence; (ii) in relation to whether the "spiel" occurred, on which there was a direct conflict in the evidence, counsel again relied on his submission that Mr Jones's evidence was not affected by cross-examination, and submitted that there was no objective evidence that made Mr Roach's account improbable; (iii) in relation to the change in time span from "10-15 minutes" to "about 15 minutes" between the Maurice Blackburn file note and the letter to Lendlease dated 10 July 2020 to which I referred at [140] and [141] above, counsel submitted that the letter actually referred to a different time frame, and submitted that in any event they were only estimates; (iv) in relation to the Union's membership records for Mr Watterston, counsel submitted that while properly analysed Mr Watterston's resignation had been submitted earlier than February 2020, the document nonetheless gave support to Mr Roach's evidence (see [88] above) that when he telephoned the Union office he was told that Mr Watterston had cancelled his Union membership in February; and (v) in relation to the claimed inconsistencies between the amended defence and Mr Roach's evidence as to when Mr Watterston raised the claim that he had paid $200, counsel submitted that Mr Roach's instructions and evidence were consistent, and further that any inconsistencies with the contents of the amended defence, which Mr Roach did not draft, were of little moment because Mr Roach had consistently claimed that Mr Watterston had mentioned a payment of $200. 171 Counsel for the respondents relied on aspects of the evidence adduced on behalf of the applicant as supporting the respondents' case – (a) it was submitted that Mr Watterston accepted in evidence that he could not remember if he said something about $200, and had accepted that he could have nominated such an amount (see [39(12)] above); (b) there was support in the evidence of Mr Watterston and Mr Simone for the accounts of Mr Roach and Mr Jones that Mr Roach had encouraged Mr Watterston to contact the Union office; and (c) there was some support in the evidence of Mr Watterston and Mr Simone that the safety "spiel" occurred to the extent that they both gave evidence of identifying Mr Jones in the lunchroom, and that this identification was likely the product of Mr Jones being introduced during the "spiel". 172 Counsel for the respondents made the following submissions in relation to the evidence of Mr Golz – (a) the Court should not accept Mr Golz's evidence that a meeting took place in-person between Mr Golz and Mr Roach prior to Mr Watterston's telephone call to Mr Golz at 9.01 am on 20 April 2020; (b) in support of the above submission, counsel relied on the evidence of Mr Roach, who denied that such a meeting occurred, and the contemporaneous representations by Mr Golz, and in particular Ms Dunsby's note of her telephone conversation with Mr Golz to which I referred at [70] above, which referred to Mr Golz calling Mr Roach, which made no reference to a face-to-face meeting, and to Mr Golz's email to Mr Silver of 22 April 2020 (see [65] above) which also made no reference to any face-to-face meeting between Mr Golz and Mr Roach, and which referred to only one conversation between them; (c) counsel also relied on the evidence of Mr Watterston concerning his telephone conversation with Mr Golz at 9.01 am (see [45] above) in which Mr Watterston stated that Mr Golz did not say to whom he had spoken, and that he did not think that Mr Golz said anything about speaking to Mr Roach; (d) counsel submitted that Mr Simone's evidence that Mr Watterston told him that Mr Golz had been too busy to sort the matter out with Mr Roach (see [56(8)] above) was also consistent with Mr Golz not having met Mr Roach prior to the 9.01 am call; and (e) as for Mr Golz's evidence on the question whether he had met with Mr Roach, with some justification counsel submitted that Mr Golz was "all over the shop", and that his evidence should be approached with a great deal of caution such that the Court should not place any weight on anything that Mr Golz had said. 173 Counsel for the respondents submitted that if the Court did not accept that Mr Golz met with Mr Roach prior to the 9.01 am telephone call between Mr Watterston and Mr Golz, then a number of things followed – (a) Mr Golz's statements to Mr Watterston that he was too busy to sort things out, that things were not going to work out, and that it would probably be best if they left, were made without Mr Golz having spoken to Mr Roach; (b) that the real reason that Mr Watterston and Mr Simone left the site was the communication from Mr Golz, which was not the product of any conversation that Mr Golz had with Mr Roach; and (c) the above view of the facts was not only consistent with Mr Simone's evidence but had a ring of consistency with what Mr Watterston was recorded as having told the Commission in his initial telephone call at 10.53 am, namely that Geschke Plumbing had spoken to Lendlease, and the response was "we have no work for you". 174 There were some other sundry matters which counsel for the respondents addressed, including submissions that – (a) on a plain reading of Mr Golz's email to Mr Silver of 22 April 2020 [see [65] above], the likely source of Mr Golz's information that Mr Watterston had told Mr Roach that he had paid $200 in fees was Mr Watterston, which was a topic on which Mr Golz had given contrasting evidence; (b) on the same day that Mr Golz spoke to Ms Dunsby, which was recorded in her file note of 21 April 2020 (see [70] above), Mr Golz sent his text to Mr Roach stating the following, which was an expression of credulity at the reporting of the incident – Yes. It's ridiculous, mate. Well, nothing will come out of it. (c) the representation in the email that Mr Silver sent to himself (see [80] above) that Melbourne Caulking "apparently" were not allowed onto the site because they were not in the union should be given no weight; and (d) Mr Roach gave evidence that the safety "spiel" and the ticket checking was something that he did regularly, and in those circumstances, it should be inferred that it would not have taken him particularly long. Submissions of the applicant in reply 175 Counsel for the applicant submitted in reply that the applicant's case was not concerned with how many times Mr Golz had spoken to Mr Roach, but about what had been said by Mr Roach to Mr Watterston in the lunchroom. Counsel submitted that the file note of Ms Dunsby, extracts of which are set out at [70] above and upon which the respondents relied to support their case that Mr Golz did not speak to Mr Roach in-person prior to his 9.01 am telephone call from Mr Watterston, addressed directly the applicant's case that Mr Roach did not permit Mr Watterston onto the site. Counsel relied on the references in the note to Mr Golz calling Mr Roach to try and convince him to let Mr Watterston and Mr Simone back onto the site, and to Mr Roach telling Mr Golz that Mr Simone was allowed on site, but Mr Watterston was not. Counsel for the applicant embraced a submission put by counsel for the respondents that Ms Dunsby presented as a very careful and punctilious inspector, and that there was no reason for the Court not to accept her evidence. Counsel submitted that the same evaluation should be made of Mr Golz's email of 22 April 2020 to Mr Silver and Mr Geschke to which I referred at [65] above, and its references to what Mr Roach had told Mr Golz. Counsel submitted that in light of the above evidence, whether there was an in-person meeting between Mr Roach and Mr Golz prior to the 9.01 am telephone call was not an important part of the applicant's case and referred to the agreed fact that Mr Golz called Mr Roach at 9.09 am, and that they spoke for 2 minutes and 35 seconds. 176 Counsel for the applicant next submitted that the evidence relied on by the applicant was not confined to the oral evidence given to the Court, but included representations made in the exhibits, and in particular the contemporaneous statements. Counsel submitted that the contemporaneous documents were directly supportive of the applicant's case and contradicted the respondents' case. 177 As to the question whether there was required to be a focus on particular words used by Mr Roach, counsel submitted that the question in issue was not the precise words used, but the effect of what was said, and whether there was a threat to coerce Mr Watterston to pay a fee, or a representation as alleged. On those issues, counsel submitted that there was ample reliable contemporaneous evidence to support the applicant's claims in the form of the statements given by Mr Watterston and Mr Simone to the Commission that were both signed and dated 6 May 2020. Both statements commenced with an acknowledgment that pursuant to s 137.1 of the Criminal Code (Cth) it is an offence knowingly to give information that is false or misleading or omit any matter without which the information would be misleading to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth. Counsel for the applicant embraced the following submission that had been made by counsel for the respondents in relation to Mr Watterston's statement – … [Mr Watterston] knew it was important to not omit any information from the statement which would otherwise make it false or misleading. So this statement, I think we can accept, was made in circumstances analogous to those of making an affidavit or a statutory declaration where there is, in effect, an obligation to tell the truth. 178 In response to several submissions advanced on behalf of the respondents that the information in the statements to the Commission of Mr Watterston and Mr Simone did not include everything that had been the subject of their evidence, thereby bearing upon the reliability of the evidence, counsel for the applicant submitted that the statements had been prepared by Ms Dunsby based upon telephone conversations with the witnesses where there was no counterfactual, and where the essential elements of the claimed events were not complicated. Counsel submitted, in substance, that it was unnecessary for the purposes of the preparation of the statements to the Commission to go into the type of detail that had been explored under the forensic lens of the hearing before the Court. 179 Counsel for the applicant addressed the claimed miscellaneous inconsistencies between Mr Watterston's statement to the Commission and his evidence to the Court, the main points being – (a) there was nothing in the respondents' point that Mr Watterston had referred to "card" (singular) in his statement and "cards" (plural) in his evidence, when other evidence, including that in the statement of Mr Simone consistently referred to Mr Roach requesting "cards"; (b) the omission by Mr Watterston in his statement to the Commission that he stated to Mr Roach that he had made a payment was of no significance in circumstances where the oral evidence of Mr Watterston, Mr Simone, and Mr Roach all referred to Mr Watterston making such a statement; (c) as to the omission from the statements of Mr Watterston and Mr Simone of any reference to Mr Watterston turning around and coming back to Mr Roach to seek clarification, counsel submitted that this was not important, because what was important for the purposes of the statements was what was said; (d) counsel submitted that in any event, Mr Watterston did say at [38] of his statement to the Commission, set out under [37] above, that he stood up before asking Mr Roach for clarification, submitting that any difference in the level of detail was inconsequential; and (e) as to the submission made on behalf of the respondents that the evidence given of what was said did not accord with the words alleged in [8] of the statement of claim which is set out under [12] above, counsel submitted that that the allegation in the pleading was in accordance with the conversation set out in the contemporaneous signed statement to the Commission by Mr Watterston and substantially in accordance with the signed statement to the Commission by Mr Simone, and that each gave oral evidence that was directly consistent with the representations in their statements. 180 Counsel for the applicant addressed further submissions made on behalf of the respondents, as follows – (a) counsel submitted that an assessment of the full extent of the respondents' alternative case, which went beyond challenging Mr Watterston's and Mr Simone's perceptions of what occurred, was relevant to the assessment of the probabilities of what occurred; (b) as to the respondents' reliance on what were claimed to be the clouded perceptions of Mr Watterston and Mr Simone, counsel submitted that while it was true to say that Mr Watterston and Mr Simone had concerns about whether they would be asked for union membership cards, they had checked in advance, and had been told that it was not going to be a problem; (c) counsel submitted that it could not be said that when Mr Watterston and Mr Simone encountered Mr Roach that their mental processes just melted and broke down such that they were unable to process what they saw and heard such that their evidence was misconceived; (d) counsel further submitted that it had not been put to Mr Simone in cross-examination that his perceptions had been clouded in the manner alleged; (e) as to the submission put on behalf of the respondents that Mr Simone's evidence of Mr Roach mentioning a figure of $515 was reconstruction or surmise, it was submitted by counsel for the applicant that this was never put to Mr Simone, and further, that Mr Simone had referred to the figure of $515 in his statement to the Commission that was in evidence; (f) in relation to the adequacy of what was put to Mr Jones, counsel for the applicant submitted it was squarely put to Mr Jones in cross-examination that his account of events in the lunchroom had been made up in order to assist Mr Roach, and that counsel was not required to put the means by which that occurred when he did not have a basis in his instructions to put the precise means; (g) as to timing issues, counsel for the applicant referred again to Mr Roach's evidence in cross-examination that he could not complete within nine minutes the "spiel", checking the tickets of up to six people, partially filling in the "lagging" sheet, and making the telephone call to the Union office; (h) in relation to whether the safety "spiel" occurred, counsel for the applicant submitted that the evidence of Mr Watterston and Mr Simone that a safety induction normally occurred after cards were checked was unchallenged; (i) in relation to Mr Roach's evidence that he told Mr Watterston, "Well, the union office told me that you rang up and cancelled your ticket. There's no – no evidence there of $200", counsel for the applicant submitted that the respondents had failed to grapple with the fact that Mr Roach had said that Mr Watterston mentioned the payment only after he had completed the call to the Union office; (j) counsel for the applicant submitted that Mr Roach's evidence that Mr Watterston referred to a $200 payment was a constructed account to direct attention away from the fact that what was actually demanded was $515, which was the relevant Union fee for the 6-month term; and (k) finally, in relation to Mr Golz's reference to the $200 payment in his email of 22 April 2020 to Mr Silver and Mr Geschke, which is extracted at [65] above, counsel submitted that the Court should accept the evidence of Mr Golz given in cross-examination by counsel for the applicant that Mr Watterston had never told him that he had paid $200 to the Union, and that it was Mr Roach who had told him about the $200 payment. Consideration Preliminary 181 The applicant's claims of contravention by the respondents of s 348 and s 349 of the FW Act were founded upon the allegation made in [8] of the statement of claim that, after Mr Roach had checked Mr Simone's and Mr Watterston's tickets using a mobile telephone app, and after Mr Roach made a telephone call, an exchange took place between Mr Watterston and Mr Roach, the terms of which I set out towards the outset of these reasons at [12] above. 182 The evidence given by Mr Watterston and Mr Simone on the one hand, and Mr Roach and Mr Jones on the other as to the events in the lunchroom and as to the exchanges that took place had some marked differences. Section 140(1) of the Evidence Act provides that the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In determining whether the applicant has established the pleaded case, I have to consider whether I have a positive state of satisfaction that the exchange as alleged, or at least an exchange that was not materially different from that alleged, occurred. This requires a state of actual persuasion, as was the position at common law: Seltsam v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [136] (Spigelman CJ). I am not to choose between the different possibilities and to consider which was more likely, because that is not the correct question: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466 at [31] (Weinberg, Bennett and Rares JJ), citing Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361-362 (Dixon J). However, that is not to say that in the weighing process the rejection of one possibility may not inform the likelihood of an alternative possibility. 183 The central facts in issue in this case concern words alleged to have been spoken by Mr Roach and whether he made the threat and misrepresentation alleged. Not every one of the numerous collateral or circumstantial matters that were the subject of the parties' submissions needs to be determined. Some are important, but there are other collateral matters that will not need to be determined, because their resolution is not relevant to my path of reasoning. 184 The applicant's claims expose Mr Roach and the Union to penalties for contraventions of the FW Act. These allegations are of a type that engage s 140(2) of the Evidence Act which directs attention, inter alia, to the gravity of the matters that are alleged in determining whether the Court is satisfied that the case of one party has been proved, reflecting Dixon J's statement in Briginshaw v Briginshaw that, "the nature of the issue necessarily affects the process by which reasonable satisfaction is attained". 185 When spoken words are alleged to have legal consequences, it is generally necessary that there be precision both as to the pleading and proof of the words that are alleged to have been spoken, because "everything may turn on the form of words": Harris v Warre (1879) 4 CPD 125 at 128 (Lord Coleridge CJ). The evaluation of evidence concerning spoken words alleged to have legal consequences also attracts the guidance of McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 – Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. 186 In the present case, the acceptance of the evidence of some witnesses will involve the rejection of the evidence of others. Questions of credit arise. In evaluating the evidence, more is involved than forming impressions about the manner in which the evidence was given based upon a witness's demeanour. In State Rail Authority of New South Wales v Earthline Constructions Ltd (in liq) [1999] HCA 3; 160 ALR 588, Kirby J at 617 referred to the "growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom". This observation applies with some force to the assessment of the demeanour of witnesses giving evidence remotely via electronic devices in circumstances of a COVID-19 lockdown. However, that is not to say that provided that the limitations of video evidence are recognised, impressions may not be formed about evidence given by video, or that such impressions may not be relevant. In this case, as I will identify below, I did form impressions about witnesses, and along with an appraisal of the circumstances disclosed by uncontested or objective evidence, they are relevant to my analysis. 187 Of some significance in the evaluation of the contested evidence of the witnesses is to compare their evidence with contemporaneous representations in documents, with objectively established facts, with the inferences that arise therefrom, and with the apparent logic of events: see, Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] (Gleeson CJ, Gummow and Kirby JJ). As Atkin LJ stated in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140 at 152 – …the existence of a lynx-eyed Judge who is capable at a glance of ascertaining whether a witness is telling the truth or not is more common in works of fiction than in fact on the Bench, and, for my part, I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour. 188 There are two further related elements of the appraisal of witness evidence to which regard may be had. The first is that a court is not required to accept or reject the totality of a witness's evidence – a court may be selective: Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 at [3] (Gleeson CJ). The second and related issue is that people sometimes tell lies when giving evidence. What is significant is not the mere fact of the untruthfulness, but its relevance to the issues in dispute. A finding that a witness has lied about a matter need not lead to the rejection of all of the evidence of that witness but may affect the degree of satisfaction of the existence or otherwise of a fact in issue to which the witness's evidence was directed: see, Broadhurst v The Queen [1964] AC 441 at 457 (Lord Devlin). Both these considerations are relevant to the assessment of the evidence and extra-curial representations of Mr Golz. General observations about the witnesses 189 I will commence by making some general observations about the witnesses. 190 Mr Simone impressed me as a witness. He was engaging, articulate, and his evidence was given in a straight-forward, natural way. No serious challenge to his credit was made by counsel for the respondents, other than to suggest in submissions that his perceptions of what he saw and heard were clouded, which was not a proposition with which Mr Simone was directly confronted in cross-examination. 191 Mr Watterston did his best to give evidence of the events as he recalled them. He was pressed on his recollection of the detail, and in some respects, he admitted absences of recollection, and equivocated on some of the detail. However, he was firm in his evidence as to the gist of what he was told by Mr Roach, namely that he was not going to be permitted to work on the site unless he paid money to the Union. 192 As I have already alluded to, the evidence of Mr Golz was in some respects contradictory. His evidence of some material events differed between examination-in-chief, and the three occasions on which he was cross-examined. He struck me as a witness who was not comfortable giving evidence in the circumstances, and who sought to appease his cross-examiners by agreeing to several propositions that were put to him that squarely contradicted other evidence that he gave. There are issues that surround the reliability of the evidence that Mr Golz gave to the Court. I will also consider whether those concerns extend to the extra-curial representations that were made by Mr Golz in documents that were in evidence. 193 Mr Roach presented as a witness who was well prepared. He gave evidence that he had read many times a statement that had been drafted for him. While his evidence-in-chief came across as well prepared, he was not specifically questioned in cross-examination about his preparation before giving evidence, or whether he had rehearsed his evidence. There would, of course, have been nothing wrong were it the fact that Mr Roach had refreshed his memory before giving evidence, as his manner of giving evidence and the content of his evidence would suggest. As I noted earlier, Mr Roach was questioned about whether he was reading from documents when he gave his evidence, which he denied. I accept the submission of counsel for the respondents that there was no evidence to support a finding that Mr Roach was reading from a document while giving evidence. 194 Mr Jones came across as less engaged than Mr Roach. Otherwise, there were no features of Mr Jones's presentation that are of note. 195 As I have already alluded to, both Ms Dunsby and Ms Murphy gave what I accept to be reliable evidence concerning the processes of obtaining instructions in which they had engaged, and they presented well as witnesses. Analysis of the evidence 196 On its own, there is no reason not to accept the thrust of the evidence of Mr Watterston and Mr Simone as to their recollection of what occurred following the induction at the site on 20 April 2020, namely that Mr Roach told Mr Watterston that he was unable to work on the site unless he paid money to the Union. It was not suggested that either witness was deliberately lying as to that recollection. Rather, the challenges to their evidence were to point to some claimed internal consistencies, to admitted flaws in recollection, and at least in the case of Mr Watterston, to suggest that his perception of what had occurred was incorrect, as it had been coloured by his apprehension about having to deal with the Union, and a preconception that he would not be allowed onto the site if he did not have a Union ticket. On the other hand, I have the evidence of Mr Roach and Mr Jones which on the central issues was markedly different from that given by Mr Watterston and Mr Simone. The applicant's case was squarely put on the basis that Mr Roach and Mr Jones were lying and had concocted a story around the relevant exchanges. In accordance with the guidance in the authorities to which I have referred, the marked differences require that I look to other surrounding evidence to determine what weight I give to the oral evidence, and to determine whether or not I am satisfied that the applicant has proven the pleaded case. 197 Counsel for the applicant submitted that Mr Watterston and Mr Simone had no motive to lie. In criminal cases, a submission relying on the absence of a motive to lie is deprecated where the existence of a motive to lie is not put in issue: R v Jovanovich (1997) 42 NSWLR 520. It has been held that to ask the rhetorical question "why would they lie" is to invite a jury to engage in illegitimate speculation: R v Jovanich at 521 (Priestley JA); R v Uhrig (unreported, NSW Court of Criminal Appeal, 24 October 1996) at 15-16 (Hunt CJ at CL). 198 In this case any question of motive of Mr Watterston or Mr Simone to lie does not squarely arise, because that was not the basis on which they were cross-examined. The tenor of the respondents' case was not that they were lying, but that at least in the case of Mr Watterston, his perception of events was clouded, and his evidence was unreliable. Further, I find that both Mr Watterston and Mr Simone were honest witnesses, and that their evidence to the Court was their best recollection of their perception of what had occurred in the lunchroom at the site on 20 April 2020. I find that the core elements of their evidence were consistent, and were not substantially undermined by cross-examination. By core elements, I am referring to the following – (a) that there was no health and safety "spiel"; (b) that Mr Roach asked Mr Watterston and Mr Simone for their cards, and that Mr Roach checked Mr Simone's card first and told Mr Simone that he was "good", or something to that effect which conveyed that there was no issue with Mr Simone; (c) that Mr Roach made a telephone call concerning Mr Watterston's membership of the Union, which is confirmed by the objective evidence that Mr Roach made a call to the Union office at 8.24 am; (d) that upon completing the telephone call Mr Roach told Mr Watterston that he had to organise a payment of fees with the Union office; and (e) upon Mr Watterston engaging with the issue with Mr Roach, Mr Roach stated that he could not come onto the site and work until after he had paid his union fees. 199 In these essential respects, the evidence of Mr Watterston and Mr Simone was consistent with the statements that they had provided to Ms Dunsby, and supported the allegations made in [8] of the statement of claim. This is not to say that there were not some areas of uncertainty in the evidence of Mr Watterston and Mr Simone on some issues. Those areas of uncertainty included – (a) whether, after Mr Watterston and Mr Simone were directed to take a seat at one of the tables in the lunchroom, Mr Roach went off somewhere for a short period before returning to them; (b) whether Mr Watterston stated to Mr Roach that he had recently paid an amount to the Union; (c) whether Mr Watterston mentioned a sum of $200 to Mr Roach; (d) if he did, whether the conversation about the $200 occurred before or after Mr Roach made his telephone call to the Union office; (e) whether Mr Roach told Mr Watterston that he owed $500, or $515; (f) the precise words otherwise used by Mr Watterston and Mr Roach in their exchanges; and (g) the content of the telephone conversations between Mr Watterston and Mr Golz at 8.28 am, 9.01 am, and 9.41 am on 20 April 2020. 200 As I have mentioned, the respondents' case did not involve a claim that Mr Watterston or Mr Simone gave false evidence to the Court. Rather, the respondents' case included a submission that Mr Watterston and Mr Simone had a coloured perception of the events that occurred in the lunchroom. Having observed both Mr Simone and Mr Watterston give evidence, I consider it unlikely that they misconceived what they saw and heard. This observation applies especially to Mr Simone who, as I have said, impressed me as a witness. The weight that I give to Mr Simone's evidence is enhanced by the fact that there was no challenge to his honesty as a witness, and no case was squarely put to Mr Simone in cross-examination that his perception of events was so coloured that he had misunderstood what went on. No serious challenge was made to Mr Simone's evidence apart from a suggestion that he had spoken to Mr Watterston about the case, which is hardly remarkable, and formal puttage of the central contested elements of the respondents' case. The cross-examination of Mr Simone concluded with the question and answer that I have set out at [56(9)] above, by which he affirmed his evidence. 201 While Mr Watterston's evidence was in some respects imprecise, and he did admit to flaws in his recollection, I am of the view that these concessions favour acceptance of his evidence because of his frankness. There were also some respects in which Mr Watterston's evidence was more comprehensive than the statement that he provided to Ms Dunsby. The leading example is his evidence that he turned around to Mr Roach and sought clarification that he was not permitted to work on the site until he paid money to the Union. I do not place much significance on this feature, because Mr Watterston's statement, extracts from which I have set out at [37] above, does refer to the fact that he sought clarification from Mr Roach by asking, "So you're telling me that unless I pay that $500, I can't work on site?", to which Mr Roach responded "Nope". A substantially similar account appears in Mr Simone's statement to which I referred at [55] above. Mr Simone also gave evidence-in-chief to this effect which he was asked in cross-examination to affirm, and which was not squarely challenged. 202 There were some elements of Mr Watterston's evidence on collateral issues which were not supported by objective evidence. An example is Mr Watterston's evidence that Mr Golz telephoned him when he was outside the site, when the objective evidence is that Mr Watterston called Mr Golz, which is an issue to which I refer below. His evidence on these types of details can be explained by the passage of time. In his statement to Ms Dunsby, Mr Watterston had stated that he called Mr Golz at 9.01 am. Ultimately, the evidence that Mr Watterston gave on the central issues was largely consistent with his contemporaneous statements, and was fortified by the evidence of Mr Simone. 203 The evidence of Mr Watterston and Mr Simone that Mr Roach told Mr Watterston that he could not work on the site until he had attended to a payment with the Union had an air of likelihood about it given the following surrounding circumstances – (a) Mr Watterston and Mr Simone were engaged in a small business, and they had an interest in performing the sub-contract for caulking work into which their company had entered with Geschke Plumbing; (b) their interest in performing the work was supported in part by the fact that in order to undertake the work they had purchased materials specifically for that job that they brought with them to the site, and which would be wasted if they did not undertake the work; (c) Mr Watterston and Mr Simone therefore had a strong disincentive to leave the site in a fit of pique as it were, and to abandon the work that they had secured; (d) indeed, Mr Watterston and Mr Simone did not abandon the site, because they waited outside while Mr Watterston made telephone calls to Mr Silver and Mr Golz; (e) Mr Roach was both a health and safety representative and a union delegate, which clothed him with apparent authority not only in relation to workers' occupational health and safety qualifications, but also in relation to union financial status and membership; (f) the fact that Mr Roach checked the union cards of five or six workers (on Mr Roach's account), or of Mr Simone and then Mr Watterston (on their account), supports the applicant's case that Mr Roach was checking the financial status of workers entering the site; (g) the above point finds reinforcement in the contents of the Union's Code of Conduct for Delegates, which renders it likely that Mr Roach was engaged in checking Union cards for the purposes outlined in the Code, including the enrolment of members and the maintenance of financial membership by continuous checks, and the requirement that delegates must make sure that they and their members are financial before they start work, before April 1 and October 1 each year; and (h) the agreed fact that Mr Roach telephoned the Union office at 8.24 am. 204 There is other circumstantial evidence that supports the applicant's case. The most significant support is found in the contemporaneous representations made by Mr Golz to Ms Dunsby when she telephoned him on 21 April 2020. I accept, consistently with the submissions of the parties, that Ms Dunsby's note of what Mr Golz told her is likely to be a substantially accurate record of what she heard Mr Golz say. The crucial feature of that note is the following paragraph, which I reproduce here for convenience – • Golz called Roachie, and tried to convince Roachie to let Watterston and Simone back on site. Roachie said that Simone was allowed on site because he was financial but Watterston wasn't. Golz informed Dunsby, that he tried his hardest to get them back on site but it was out of his hands. 205 The applicant's case also finds circumstantial support in the relevant records of the Union. No officer of the Union was called to explain the records, and I am therefore left to draw my own conclusions. I find that the Union's printout that was tendered showed that on 25 September 2019 the Union received the email from Mr Watterston, sent on his wife's email account, which the Union treated as notice of resignation. That resignation was initially processed by the Union on 26 September 2019, as recorded in the printout. There is also a further entry that records the resignation as having been processed on 3 February 2020. The Union had calculated that the amount owing by Mr Watterston to the Union for the period ending 31 March 2020 was $412.50, and this sum was paid to the Union with a receipt noted as being dated 30 October 2019. The fact of this payment is also supported by Mr Watterston's banking record dated 28 October 2019, which records a BPAY payment to the Union. The Union's records show no amount as being outstanding for the period ended 30 March 2020. The records therefore show that from 30 March 2020 Mr Watterston was no longer a financial member of the Union. I find that it is likely that Mr Roach made his telephone call to the Union office for the purpose of confirming Mr Watterston's financial status, and in the brief call of one minute 15 seconds at 8.24 am was told that Mr Watterston had cancelled his ticket. 206 There is also the content of the text exchanges between Mr Roach and Mr Golz which, in combination with the other evidence, is significant. The exchanges are set out under [63] above. There are two aspects of what Mr Roach said that invite attention. The first is his reference to "dob the union in". By itself, this may not be decisive, but the use of the word "dob" is indicative of a consciousness of contravention by the Union. More significant to my mind is the second aspect, which is Mr Roach's claim that "Melbourne caulking won't be getting any union work in the future". I find that this statement was an expression of illegitimate authority to sanction those who acted against the interests of the Union by controlling entry to sites. This expression of power was consistent with the applicant's claim that Mr Roach attempted to exercise illegitimate authority to prevent Mr Watterston from entering the building site. While I accept Mr Roach's explanation that he wrote the text in frustration, his reason for making the threat is beside the point. As to Mr Roach's evidence that he could not and did not take any steps to prevent Melbourne Caulking getting union work, I regard the evidence as a self-serving rationale that does not diminish the significance of the fact that the threat was expressed. 207 As I have foreshadowed, questions arise in relation to the truthfulness of some of the evidence given by Mr Golz to the Court, and his willingness to accept contradictory propositions that were put to him by leading questions in cross-examination. However, those reservations do not have the same weight in relation to the extra-curial contemporaneous representations that Mr Golz made to Ms Dunsby. Ms Dunsby was called as a witness immediately after Mr Golz had given his evidence. It was not put to Ms Dunsby in cross-examination that her notes of her interview of Mr Golz and their reference to Mr Golz's conversation with Mr Roach were the product of putting leading propositions to him, save that Ms Dunsby was cross-examined as to whether Mr Golz had used the word "financial" in reference to Mr Simone (see [70] above). Ms Dunsby gave evidence that "financial" was Mr Golz's word. Otherwise, Ms Dunsby was not questioned in cross-examination about any other aspect of her note recording what Mr Golz had told her. 208 Mr Watterston gave evidence that during his first call to Mr Golz, which I find occurred at 8.28 am, he stated to Mr Golz that he was not permitted to work at the site because he was not a union member, in response to which Mr Golz asked about Mr Simone. Mr Golz's email to Mr Silver and Mr Geschke dated 22 April 2020 stated that Mr Watterston told him that Mr Simone was able to continue on the site, as he did have his card. Mr Golz said that he would make some calls. I find that after Mr Watterston telephoned and spoke to Mr Golz at 8.28 am, he called Mr Golz again at 9.01 am while he and Mr Simone remained outside the site awaiting further information from either Mr Golz or Mr Silver as to whether, on their understanding of the situation, they would be permitted to return to the site. Mr Watterston's evidence concerning whether during the second telephone conversation, which was at 9.01 am, Mr Golz told him that he had spoken to Mr Roach was, to some extent, equivocal. Mr Watterston gave evidence that Mr Golz called him back. However, that is not consistent with the telephone records, or with Mr Simone's statement to Ms Dunsby that Mr Watterston called Mr Golz again. I note, however, that in evidence-in-chief Mr Simone stated that Mr Golz got back to Mr Watterston. Nor is it consistent with Mr Golz's evidence that Mr Watterston called him back. As to the content of the second call, Mr Watterston initially stated that the gist of what Mr Golz said was that he had spoken to Mr Roach and to Lendlease, and that unless he was a union member, it was not going to happen for him. Then, in answer to a direct question, Mr Watterston stated that he could not remember Mr Golz telling him that he had spoken to Mr Roach. In cross-examination, Mr Watterston stated that Mr Golz did not tell him to whom he had spoken, but that he had spoken to "people", and that Mr Watterston and Mr Simone were not getting on site. Mr Watterston was unable to say what words were spoken by Mr Golz, but said that he was told that he may as well go. 209 Mr Simone gave evidence that he was present with Mr Watterston at the time of the call to Mr Golz at 9.01 am, and that it was his understanding that Mr Golz told Mr Watterston that Mr Simone could start, but that Mr Watterston could not start until he sorted everything out with the Union but that Mr Watterston explained that it was a two-man job. I am cautious about this aspect of Mr Simone's evidence, because Mr Simone did not hear Mr Golz speaking to Mr Watterston, and I am not confident that Mr Simone's evidence was not the product of some degree of reconstruction, which he came close to volunteering when he stated that he was "almost filling in the blanks", and that he and Mr Watterston spoke about it afterwards. Mr Simone stated that Mr Watterston relayed to him after the second call that Mr Golz was too busy to sort things out, and relayed to Mr Simone that the person on the phone "was basically saying that they would probably get somebody who's union to do the job". Initially, Mr Simone could not remember who had said this, but then stated that he thought it was Mr Golz. Mr Simone was also uncertain in his understanding as to whether he and Mr Watterston were waiting outside the site for Mr Golz to come down and see them, but then stated that it was his understanding that they were waiting to see whether Mr Golz could sort something out. 210 Mr Golz initially gave evidence that on 20 April 2020 he spoke to Mr Roach in person after Mr Watterston called him to say that he was not allowed to start until he sorted out his union fee. During the course of cross-examination by counsel for the respondents Mr Golz changed his evidence to say that he did not recall whether he met Mr Roach, and then accepted that on reflection he was mistaken about having a face-to-face meeting with Mr Roach. 211 There are some aspects of Mr Golz's contemporaneous representations that are inconsistent with other evidence. In Ms Dunsby's note of her conversation with Mr Golz of 21 April 2022, the following sequence is described – (a) Mr Golz received a call from Mr Watterston, who was outside the site, informing him that Mr Roach had not permitted them to work on the site, because they were not financial Union members; (b) no distinction in the above account was made between the positions of Mr Watterston and Mr Simone; (c) Mr Golz told Mr Watterston that he would call Mr Roach and then meet them outside; (d) Mr Golz then called Mr Roach, who informed him that Mr Simone was allowed on the site because he was financial, but that Mr Watterston was not; (e) Mr Golz called Mr Watterston back, and Mr Watterston told him that they had left the site; and (f) during the above call, Mr Golz told Mr Watterston that Mr Simone was allowed on site, but Mr Watterston responded by stating that it was a two-man job. 212 In this account, Mr Golz makes no distinct reference to Mr Watterston's telephone call to him of 9.01 am, at which time Mr Watterston and Mr Simone remained outside the site. 213 In his email to Mr Silver and Mr Geschke of 22 April 2020 set out at [65] above, Mr Golz described the following sequence – (a) after the induction, Mr Watterston called him and advised that he was unable to attend the site because he was not financial, and added that Mr Simone was able to continue, because he did have his card; (b) Mr Watterston told Mr Golz that he had said to Mr Roach that he had paid fees of $200 "a couple of weeks prior", as to which there is a live question whether that information was given to Mr Golz by Mr Roach; (c) Mr Golz then spoke to Mr Roach, not specifying whether this was in-person, or by telephone, where he "heard the same story as Brendan"; (d) Mr Golz then contacted Mr Watterston and stated that he was on his way down the building to sort it out and to meet Mr Watterston and Mr Simone; and (e) by the time Mr Golz had made his way down, Mr Watterston called Mr Golz and said that they were leaving the site, as nothing more could be resolved, in response to which Mr Golz made it known that Mr Simone could stay, but Mr Watterston responded by stating that it was a two-man job. 214 Mr Golz's reference to contacting Mr Watterston to say he was on his way down the building is not supported by the agreed facts concerning the time of the telephone communications. There appears to be no reference in Mr Golz's email to the later telephone call that Mr Golz made to Mr Watterston at 9.41 am. 215 On balance, and while the question is not free from doubt, I do not accept Mr Golz's evidence-in-chief that he spoke to Mr Roach in person after Mr Watterston called him at 8.28 am. Other evidence indicates otherwise. In Ms Dunsby's note of her telephone conversation with Mr Golz of 21 April 2020, Mr Golz is recorded as stating that he called Mr Roach. That statement is supported by the agreed fact that Mr Golz telephoned Mr Roach at 9.09 am and that they spoke for 2 minutes, 35 seconds. Mr Golz's email to Mr Silver and Mr Geschke is not inconsistent with Mr Golz having telephoned Mr Roach, rather than speaking to him in person. For completeness, I do not give any weight to Mr Silver's email to himself dated 22 April 2020 to which I referred at [80] above, because his source of the representation that "apparently" Melbourne Caulking was not allowed onto the site because they were not in the union is not identified. The email does not have the same significance as the contemporaneous representations made by Mr Golz, who had spoken to Mr Roach. 216 I find that it is likely that it was during the 9.09 am telephone call that Mr Roach told Mr Golz that Mr Watterston was not permitted onto the site, but that Mr Simone was, confirming the information that Mr Watterston had given Mr Golz in his telephone conversation at 8.28 am. Consistently with Ms Dunsby's note of 21 April 2020, Mr Golz agreed in the course of cross-examination by counsel for the applicant that he had tried his hardest to get Mr Watterston and Mr Simone back on site, but that Mr Roach had made his position clear, namely that Mr Watterston could not work onsite until he was financial with the union. I accept that evidence of Mr Golz, as it is consistent with his contemporaneous account to which I have referred. I regard it as unlikely that when Mr Golz spoke to Ms Dunsby on 21 April 2020 that he was confused about the fact that on the previous day he had tried to convince Mr Roach to let Mr Watterston onto the site, and that he was told that Mr Simone was able to return to the site, but that Mr Watterston was not. Further support for the applicant's case is given by Mr Golz's email to Mr Silver and Mr Geschke of 22 April 2020, to which I referred at [65] above, and in particular Mr Golz's representation that "I spoke to roachy To get a better understanding and heard the same story as Brendan". In combination with Ms Dunsby's note, that email provides substantial contemporaneous support for the applicant's case that Mr Roach prevented, or threatened to prevent, Mr Watterston working at the site until he paid a fee to the Union. 217 I do not accept Mr Golz's evidence given in cross-examination by counsel for the respondents that Mr Roach told him that the claim that he would not let the caulker start on site "was a load of bullshit", and that he said that he had never asked the caulker to leave. That evidence, which was given in response to leading questions, was not consistent with the tenor of Mr Golz's contemporaneous statements, and was given in circumstances where Mr Golz then gave different evidence in further cross-examination by counsel for the applicants, and accepted that insofar as he might have said something different when giving instructions to Ms Murphy of Maurice Blackburn, he did so in order not to upset the Union. 218 Further, Mr Golz's evidence on this issue does not sit comfortably with the apparent logic of events. Mr Watterston and Mr Simone were motivated to undertake the work the subject of the subcontract, had purchased materials, and had secured car parking for that purpose. If there was some misunderstanding as between Mr Watterston and Mr Roach and that "it was all bullshit", then one would expect that the contemporaneous representations of Mr Golz might have suggested that he called Mr Watterston to say so, which is a topic to which I now turn. 219 There was evidence from Mr Roach that Mr Golz informed him later in the day on 20 April 2020 that he had telephoned Mr Watterston and told him that he was not prevented from working on the site, and asked him to come back, and that Mr Watterston responded by stating that he was already on another job, and that he was too busy. Mr Golz was cross-examined by counsel for the respondents about his telephone conversations with Mr Watterston and I have set out relevant exchanges at [74] above. That evidence was inconsistent with his evidence-in-chief, and his evidence in re-examination to which I have referred at [62], [68], and [76(a) and (b)] above. 220 On the other hand, there is the contemporaneous statement of Mr Golz recorded by Ms Dunsby that he called Mr Roach, tried to convince him to let Mr Watterston and Mr Simone back on site, but that Mr Roach said that Mr Simone was allowed on site because he was financial, but that Mr Watterston was not. Further, there was no reference by Mr Golz to any denial of the claims by Mr Roach in his email to Mr Silver and Mr Geschke of 22 April 2020. On the contrary, in that email Mr Golz stated that he made it known to Mr Watterston that Mr Simone could stay and complete the caulking, but that Mr Watterston responded by stating that it was a two-man job. There was no reference in Mr Golz's email to Mr Silver to any statement by Mr Watterston that he was "too busy" or that he had another job on the day. 221 I accept the evidence of Mr Watterston that Mr Golz did not invite him back onto the site, but that in response to Mr Golz's suggestion that Mr Simone could return, Mr Watterston stated that it was a two-man job. I also accept Mr Watterston's evidence that he did not tell Mr Golz that he had another job to go to. These findings are supported by the contemporaneous representations of Mr Golz to which I have referred above, and by the evidence of Mr Simone, who stated that they looked through their diaries to see if there were any jobs they could pick up for the day, but that they had booked out the day for that particular job. It also accords with common sense that Mr Watterston and Mr Simone would allocate two days in their diaries for the job at the Melbourne Quarter site. 222 If I were wrong in finding that it was in the course of the 9.09 am telephone call that Mr Roach had first made his position clear to Mr Golz, namely that Mr Watterston could not work onsite until he was financial with the Union, then a finding that Mr Golz had earlier spoken to Mr Roach in person, that is, prior to the 9.09 am call, would not affect my conclusion as to what Mr Roach said to Mr Golz, because in either event I find that Mr Roach told Mr Golz that Mr Watterston was not permitted to work on the site until he had paid his fees. Whether the conversation occurred in person, or by telephone, it occurred prior to Mr Golz's telephone call to Mr Watterston at 9.41 am, by which time Mr Watterston had left the site, and significantly, it occurred prior to Mr Golz's conversation with Ms Dunsby on 21 April 2020, and prior to his email to Mr Silver on 22 April 2020. 223 One issue on which the evidence varied was whether Mr Watterston told Mr Roach in the lunchroom that he had recently paid an amount to the Union, and whether he nominated $200. I find that after Mr Roach had made his telephone call to the Union that Mr Watterston said to him that he had recently paid an amount to the Union. That finding is supported by the evidence of Mr Simone, Mr Watterston, and Mr Roach. I do not accept the evidence of Mr Jones that Mr Watterston referred to a sum of $200 before Mr Roach made the telephone call to the Union office. Whether Mr Watterston subsequently mentioned a figure of $200 is a question which requires some analysis. In relation to contemporaneous evidence, Mr Golz referred to the $200 amount in his email to Mr Silver and Mr Geschke of 22 April 2020 which was sent at 6.12 pm. Mr Golz stated in cross-examination by counsel for the applicant that Mr Watterston had never said that he told Mr Roach that he had paid $200, and that it was Mr Roach who had told him about the $200. However, in cross-examination by counsel for the respondents Mr Golz stated that Mr Watterston had told him in his telephone conversation at 8.28 am that he had told Mr Roach that he had paid the sum of $200 to the Union, that Mr Roach said that there was no record of the payment, and that he should chase it up with the Union office. 224 I find it unlikely that Mr Watterston mentioned any figure of $200 to Mr Golz during his telephone calls to him. That sum did not reflect either the amount that Mr Watterston had paid to the Union for the period up to 31 March 2020, or the sum of $515 that was payable in respect of the term commencing 1 April 2020. I prefer Mr Simone's evidence that in the lunchroom Mr Roach told Mr Watterston that he had to pay a sum of $515, which corresponds with Mr Simone's reasonably contemporaneous statement to Ms Dunsby, and Mr Watterston's evidence that he was required to pay $500, which corresponds with his statement to Ms Dunsby. As I have said, I also find that Mr Watterston then told Mr Roach that he had recently paid a sum to the Union. I am not persuaded to find that he mentioned a figure of $200, and I prefer Mr Simone's evidence that no figure was mentioned. It is more likely that the sum of $200 to which Mr Golz referred in his email to Mr Silver and Mr Geschke on 22 April 2020 at 6:12 pm was first mentioned to Mr Golz by Mr Roach. Prior to sending that email, Mr Golz had spoken to Mr Roach on at least two occasions: at 9.09 am on 20 April 2020, and at 2.03 pm on 21 April 2020, which was after Mr Golz had spoken to Ms Dunsby. 225 In any event, the resolution of this issue is peripheral to my path of reasoning. Even if Mr Watterston had mentioned a figure of $200 to Mr Roach or to Mr Golz, which is a possibility that Mr Watterston admitted in cross-examination, that would not affect my acceptance of Mr Watterston's and Mr Simone's evidence that Mr Roach told Mr Watterston that he was not permitted on site unless he paid a fee to the Union which Mr Roach identified as either $515 on Mr Simone's account, or $500 on Mr Watterston's account, the former corresponding with the amount due for the six month term commencing 1 April 2020. As I have alluded to, Mr Simone was not really challenged in cross-examination on his evidence that Mr Watterston sought and obtained clarification from Mr Roach that he was not permitted onto the site unless he sorted out his union membership, but instead Mr Simone was asked to confirm his evidence (see [56(9)] above). 226 There was much attention given by the parties to the question whether Mr Roach and Mr Jones conducted a safety "spiel" before checking cards. The evidence of Mr Watterston and Mr Simone was unequivocal and direct: there was no safety "spiel". The suggestion that Mr Roach and Mr Jones conducted the "spiel" arose in the instructions which Maurice Blackburn took from Mr Roach, and the instructions that Maurice Blackburn took from Mr Jones that were recorded in a note prepared by Mr Sutton dated 3 July 2020, and was the subject of their evidence to the Court. Other than the representations in the documents recording their instructions, there is little objective or contemporaneous support for Mr Roach's and Mr Jones's evidence on this topic. 227 There were differences between the accounts of Mr Roach and Mr Jones. To my mind, a significant difference was whether Mr Roach was standing when addressing the workers. The record of Mr Jones's instructions to Maurice Blackburn states that he and Mr Roach "sat down with the induction group and spoke to them about safety on the site". Mr Jones appeared to confirm this detail in his examination-in-chief when he stated that he and Mr Roach were "sitting down at one of the smoko tables". In cross-examination, Mr Jones stated that he did not know whether Mr Roach was seated when he was talking to the group, and that his recollection was not assisted by the Maurice Blackburn note of his instructions. On the other hand, Mr Roach gave evidence that he was standing when he was addressing the workers prior to checking tickets. 228 Counsel for the applicant made much of the submission that the safety "spiel" and the checking of tickets as described by Mr Roach and Mr Jones could not have occurred within the nine minute window between 8.15 am when it was submitted the Lendlease induction finished, and 8.24 am when Mr Roach called the Union office. I have considered those submissions carefully, but I am not persuaded to place weight upon an analysis that depends upon making a finding as to precisely when the Lendlease induction was completed, and for what period of time a safety "spiel" might last. There was no evidence that any of the participants were monitoring their watches or clocks. And the evidence as to when the Lendlease induction finished varied. For instance, in his statement to Ms Dunsby, Mr Simone stated that the Lendlease induction commenced at 7.30 am and went for 45 minutes to an hour, and that he and Mr Watterston walked into the lunchroom at around 8.30 am. In his evidence-in-chief, Mr Simone stated that the Lendlease induction went for half an hour or 45 minutes and concluded between 8.00 am and 8.15 am. In his statement to Ms Dunsby Mr Watterston stated that the Lendlease induction began at 7.30 am and went for close to an hour. I am not persuaded to find that the Lendlease induction finished at 8.15 am, and not earlier. The second difficulty with the respondent's submissions about timing is that in the absence of measurement, the experience of the passage of time is subjective. I have no objective means by which to measure how long a safety "spiel" described by the evidence of Mr Roach and Mr Jones ought to have taken. 229 Nonetheless, on the question whether a safety "spiel" occurred, I prefer the evidence of Mr Watterston and Mr Simone over the evidence of Mr Roach and Mr Jones. As I have indicated, the evidence of Mr Watterston and Mr Simone that no safety "spiel" occurred was clear and emphatic. It is not an issue about which they were likely to be mistaken, and it was not put to either that he was giving false evidence. My preference for the evidence of Mr Watterston and Mr Simone on this issue is also informed by findings as to their honesty, and my acceptance of their evidence over the evidence of Mr Roach and Mr Jones that Mr Roach told Mr Watterston that he was not permitted to commence work on the site. 230 It follows from the above analysis that I do not accept the evidence of Mr Roach and Mr Jones that a safety "spiel" occurred. And on the main question in the proceeding, for the foregoing reasons I am comfortably satisfied that upon Mr Watterston seeking clarification, Mr Roach conveyed to him that he could not commence work on the site until he had attended to the payment of a Union fee of $515. Whether Mr Roach referred to $515 or $500 is not material, but I consider that it is more likely that he referred to a sum of $515, being the fee due for the six month term commencing 1 April 2020. A necessary consequence is that in preferring the evidence of Mr Watterston and Mr Simone I do not accept the evidence of Mr Roach that he did not seek to prevent Mr Watterston working on the site, and to the extent that Mr Jones's evidence did not refer to Mr Roach's clarification that Mr Watterston was not permitted to work on the site, I do not accept his evidence either. I accept that upon being told that he could not work on the site that Mr Watterston uttered an expletive to Mr Roach. Whether he said "[eff] you" or "I am sick of you [*unts]" is not material: each expression employed the use of a profanity to convey exasperation. Conclusions 231 On the basis of the above findings of fact, I conclude that on 20 April 2020 Mr Roach by his statements to Mr Watterston threatened to prevent and in a practical sense by the exercise of illegitimate authority did prevent Mr Watterston from performing work at the site until he paid a fee to the Union. Mr Roach's conduct was reinforced by his conversation with Mr Golz in which I find that Mr Roach told Mr Golz that Mr Watterston was not permitted to commence work on the site until he attended to a payment to the Union. Mr Roach thereby both threatened to take action and took action against Mr Watterston for the purposes of s 348 of the FW Act. In referring to Mr Roach's conversation with Mr Golz, I am not enlarging on the pleaded contravention, only treating it as a reinforcement of the contravention by Mr Roach that had already occurred, namely stating to Mr Watterston that he was not permitted to work on the site. 232 By [10] of the statement of claim the applicant alleged that Mr Roach acted with the intention of negating Mr Watterston's choice to pay membership subscriptions, levies and/or dues to the Union. That allegation having been made in the proceeding, s 361 of the FW Act is engaged, and the alleged reason is presumed unless proven otherwise. The respondents denied taking the action that was alleged, and did not plead or otherwise advance a case, still less prove that the action was not taken for the reasons alleged by the applicant in [10] of the statement of claim. To the extent that it is necessary to do so, I also find that the evidence is consistent with the hypothesis that Mr Roach was actuated by the reasons alleged in [10] of the statement of claim: see Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC; 273 FCR 332 at [74] (Greenwood, Besanko and Rangiah JJ), and I therefore find that the reasons alleged in [10] of the statement of claim are established. These reasons amount to an intent to exercise a sufficient degree of compulsion, that is, denial of choice, as to amount to an intent to coerce Mr Watterston to pay membership fees to the Union. 233 As I identified towards the outset of these reasons, in relation to my finding that Mr Roach in fact prevented Mr Watterston from working on the site, it is a necessary element of action with intent to coerce that there is the use of unlawful, illegitimate or unconscionable conduct: ABCC v Hall at [25]. I find that it was not legitimate for Mr Roach to seek to induce Mr Watterston to pay a fee to the Union by asserting illegitimate authority to deny him access to work on the site. To do this was to interfere with the ability of Melbourne Caulking to undertake the work that it had contracted to perform on the site for the purpose of seeking to have Mr Watterston act otherwise than in accordance with the free choice that he had made not to continue his financial membership of the Union, where freedom of association is one of the values enshrined in the express objects of Part 3-1 of the FW Act and is to be regarded as an industrial norm: FW Act, s 336(1)(b), and see the discussion by Reeves J in Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196 at [82]-[85], and Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268 at [161] and the authorities cited therein. For the same reasons, by reference to all the circumstances, the action of Mr Roach is fairly to be characterised as unconscionable as an evaluative conclusion, in that it departed substantially from acceptable behaviour in an industrial context for the illegitimate object of seeking to interfere with Mr Watterston's free choice in relation to his prior decision to cease membership of the Union. Further, as I hold below that the statements by Mr Roach to Mr Watterston constituted misrepresentations in contravention of s 349 of the FW Act, the action taken by Mr Roach was also unlawful. 234 As to the claimed contravention of s 349 of the FW Act, which I set out at [8] above, the applicants must prove the following elements – (a) that Mr Roach made the representation alleged, namely, a representation to Mr Watterston to the effect that in order to perform work on the site, including the work he had attended to perform that day, he had to pay membership subscriptions, levies or dues to the Union, or at least a representation not substantially different therefrom; (b) that the representation was about Mr Watterston's obligation to engage in industrial activity; (c) that the representation was false or misleading; and (d) that Mr Roach knew or was reckless as to whether the representation was false or misleading. 235 In written submissions, counsel for the respondents stated that there was no issue that if the applicant's version of the disputed conversation were accepted, then the first three elements set out at [234] above would be established. I have accepted the substance of the evidence of Mr Watterston and Mr Simone, and I have held that the applicant's claims as to the substance of what Mr Roach said has been established. The acceptance that the representation was about Mr Watterston's obligation to engage in industrial activity, namely the payment of membership fees to the Union, was correct in light of the authorities to which I referred at [10] above. 236 The question whether Mr Roach knowingly or recklessly made the impugned representation was hardly touched upon by counsel for the parties in their closing submissions. I expect that is because Mr Roach's evidence on this issue in cross-examination, which I have set out at [122] above, was unambiguous. On the basis of that evidence I find that Mr Roach knew that the representation that he made to Mr Watterston was false and misleading. On the basis of the same evidence, I make an alternative finding that Mr Roach was reckless as to the false or misleading nature of the representation. 237 It is also necessary to consider the exclusion in s 349(2) of the FW Act, that is relied on by the respondents in their defence on the ground that Mr Watterston would not be expected to rely on the misrepresentation. There is not clear authority on the question whether s 349(2) and the cognate provision in s 345(2) of the FW Act are directed to the state of mind of the representor, or to the objective circumstances of the representation. That question arises because the passive tense used in s 349(2) might be thought to direct attention to an objective inquiry having regard to all the circumstances in which the representation was made rather than the subjective state of mind of the representor. 238 In Adcock v Blackmores Ltd [2016] FCCA 265; 259 IR 209, Judge Cameron at [97] treated the provision as requiring an objective enquiry – … I was not taken to any authorities on the meaning of those words. I read them to mean that s 345(1) will not apply if a reasonable person in the circumstances of the person making the misrepresentation would not, at the time the representation is made, expect the recipient of the misrepresentation to rely on it. The words "would not be expected to rely on it" imply an objective test and, to operate fairly, must relate to the representor's state of mind. In that connection, if s 345(2) were to operate by reference to a hypothetical reasonable person without knowledge of the dealings between the parties to the misrepresentation, it would be possible that contextual matters which could shed light on whether the recipient of the misrepresentation would be expected to rely on the misrepresentation might not be taken into account. … 239 The decision of Judge Cameron was upheld on appeal by Flick J: Adcock v Blackmores Ltd [2016] FCA 893. However, there was no specific consideration by Flick J of the correctness of Judge Cameron's exposition set out above. 240 The decision at first instance of Judge Cameron in Adcock v Blackmores Ltd was cited by Tracey J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Syme Library Case) at [277] when summarising the submissions of counsel for the applicant, which included a submission that the test for the engagement of the exception in s 345(2) of the FW Act was objective. At [303], Tracey J resolved the issue by directing attention to the intention of the makers of the statements and also the fact that the persons to whom the statements were made, at least to an extent, relied on the statements. These matters supported a finding that it was not the case that the representee would not be expected to rely upon the statements. 241 On the other hand, in Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 at [247] Flick J treated s 345(2) as calling for an inquiry as to whether the representor had an expectation as to whether the representee would or would not rely upon what he was being told, where the fact that the representee was not in fact misled was irrelevant. 242 It is unnecessary to resolve what authorities are to be preferred, and the proper construction of s 349(2) should await a case where resolution of the issue is determinative of the outcome. That is because counsel for the respondents accepted in closing submissions that if the applicants established that the conversations alleged in [8] of the statement of claim occurred as alleged, then the contentions that the respondents had made about s 349(2), in light of the evidence adduced, fell away. 243 For the above reasons, I find that the applicant has established that by making the impugned statements to Mr Watterston, Mr Roach contravened s 349 of the FW Act. 244 It was not in issue that if I made findings against Mr Roach such as those that I have made, then Mr Roach's conduct is to be attributed to the Union. Orders 245 Having made the above findings and reached the above conclusions, I will hear counsel as to orders for the further conduct and disposition of this proceeding relating to the relief that the applicant seeks. I certify that the preceding two hundred and forty-five (245) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan. Associate: Dated: 3 March 2023