FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293

THE COURT ORDERS THAT:

1.    The Applicant file and serve minutes of the declarations and other orders appropriate to give effect to the Court’s findings.

2.    Consideration of those minutes, the imposition of penalties and any consequential matters is adjourned to a date to be fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Director of the Fair Work Building Industry Inspectorate (the Director) alleges contraventions by the Construction, Forestry, Mining and Energy Union (the CFMEU) and its officials of provisions in the Fair Work Act 2009 (Cth) (the FW Act) at various Lend Lease Building Contractors Pty Ltd (Lend Lease) building sites in Adelaide in October and November 2013. The Director seeks declarations as to the contraventions and the imposition of penalties.

2    In the main, the Director alleges that officials of the CFMEU acted in an improper manner, in contravention of s 500 of the FW Act, while exercising, or seeking to exercise, rights of entry on the building sites. However, in relation to three officials the Director also alleges contraventions of s 348 of the FW Act and, in relation to two, contraventions of s 346 of the FW Act. Those provisions proscribe adverse action and coercive conduct of defined kinds. In relation to one official the Director alleges a contravention of s 499 of the FW Act.

3    Some of the CFMEU officials are alleged to have contravened the FW Act on more than one occasion, and two (Mr Gava and Mr Beattie) at more than one building site.

4    These reasons contain the Court’s findings with respect to the alleged contraventions. Consideration of the penalties to be imposed and of other consequential orders in respect to those contraventions found to be established has been deferred to a separate hearing.

5    Some of the officials admitted the contraventions alleged against them and the CFMEU admitted that it too had contravened the FW Act by the admitted conduct of those officials. Consideration of the orders to be made in respect of the admitted contraventions has been adjourned pending the determination of the remaining matters.

The standing of the Director

6    At the close of his final submissions, counsel for the respondents raised for the first time an issue as to the standing of the Director to bring the proceedings. The submission was not that the Director lacked standing as a matter of fact and law: only that he had not proved his standing in these proceedings. There was some incongruity in this submission for a number of reasons: as noted some of the respondents had earlier admitted contraventions alleged by the Director and had sought the adjournment of those matters to a penalty hearing, conduct seemingly inconsistent with a view that the Director lacked standing; it seemed that the effect of the respondents’ defence was that they were deemed in any event to have admitted the matters establishing the Director’s standing; and it is a matter of notoriety that the Director has prosecuted successfully many actions against the CFMEU and its officials so that his standing to do so must be well recognised. In fact, counsel for the respondents noted that, in like matters to proceed before the Court later in the same week, the Director had provided evidence of the matters establishing his standing. The standing of the Director could hardly be understood to vary from matter to matter.

7    However, in the light of the respondents’ submissions, I permitted the Director to re-open his case in order to prove formally his appointment as Director of the Fair Work Building Inspectorate, and the Director did so.

8    The Director is appointed pursuant to s 15(1) of the Fair Work (Building Industry) Act 2012 (Cth) (the FWBI Act) and is, by s 59A of the FWBI Act, a Fair Work Building Inspector. By s 59C of the FWBI Act, the Director may perform the functions and powers of a Fair Work inspector in relation to “building matters”. He is accordingly authorised by s 539 of the FW Act to bring the action.

The CFMEU

9    The CFMEU is an association of employees registered as an organisation pursuant to s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the FWRO Act). It is a body corporate capable of being sued in its registered name (FWRO Act, s 27). Each of the respondents admitted that the CFMEU is a “building association” and a “building industry participant” within the meaning of s 4(1) of the FWBI Act.

Statutory provisions

10    Section 512 of the FW Act authorises the Fair Work Commission (the FWC) to issue entry permits to union officials:

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.

11    The rights bestowed by Pt 3-4 of the FW Act on a permit holder are (relevantly) of two kinds. First, Subdiv A (s 481) authorises a permit holder to enter premises and to exercise rights under ss 482 and 483 “for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation”. The rights bestowed by ss 482 and 483 are, in general terms, rights to inspect, to interview, to make copies and to require the production of documents or records for the purposes of inspection.

12    Secondly, Subdiv B, which consists of s 484 only, authorises a permit holder to enter premises for the purpose of holding discussions with employees. It provides:

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a)    who perform work on the premises; and

(b)    whose industrial interests the permit holder’s organisation is entitled to represent; and

(c)    who wish to participate in those discussions.

13    Division 3 in Pt 3-4 recognises that union officials may be authorised under State or Territory workplace health and safety laws to enter premises, but regulates in a number of respects the exercise of rights of entry under those laws.

14    The manner of exercise of a right of entry by a permit holder under Subdivs A and B is governed by ss 487-493 of the FW Act. Section 487 is pertinent presently. It has the effect that, unless the FWC has issued an exemption certificate for the entry, a permit holder must, before entering the premises for a s 484 purpose, give the “occupier” of the premises an “entry notice” for the entry.

15    The term “occupier” is defined in s 12 of the FW Act to include a person “in charge of the premises”. By s 487(2), an “entry notice” is a notice which complies with s 518. That section specifies the content of an entry notice. Such notices must be given to the occupier during working hours at least 24 hours, but not more than 14 days, before the entry (s 487(3)).

16    Section 500 prohibits certain kinds of conduct by permit holders:

500 Permit holder must not hinder or obstruct

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

Section 500 is a civil remedy provision (s 537).

17    In relation to the contraventions by the CFMEU itself, the Director relied upon the deeming provision in s 793 of the FW Act.

18    Section 793 has the effect that any conduct engaged in by an officer, employee or agent of a body corporate such as the CFMEU within the scope of the person’s actual or apparent authority is to be taken, for the purposes of the FW Act, to have been engaged in also by that body corporate.

Matters of common ground

19    Each individual respondent admitted that he had entered the building sites alleged in his case on the day or days alleged by the Director, although some did not admit the Director’s allegations concerning the time at which the entry was made or its duration.

20    Each individual respondent held, at the time of the entry, a permit issued by the FWC pursuant to s 512. With one exception, each individual respondent acknowledged that he had not, before entering the relevant site, given its occupier any entry notice, let alone a notice which complied with s 518 of the FW Act. The exception is the seventh respondent (Mr McDermott) who, on 13 November 2013, provided an entry notice under the Work Health and Safety Act 2012 (SA) (the WHS Act) in respect of the Adelaide Oval site.

21    The FWC had not issued an exemption certificate to any of the individual respondents.

22    Each of the individual respondents, other than Mr Roberts and Mr Kirner, admitted that he was at the time of his entry employed by the CFMEU. Mr Roberts and Mr Kirner denied that they were employees but accepted that they were officers of the CFMEU at relevant times.

23    The CFMEU admitted that each individual respondent was acting at the relevant time within the scope of his actual or apparent authority and that, if the conduct of an individual respondent was in contravention of the FW Act, then s 793(1) had the effect that it was also to be taken to have contravened the provision in question.

24    Given the CFMEU’s acceptance of its liability under s 793 in respect of any contravention by an individual respondent which was found to be established, the Director did not press claims which he had made in the alternative to the effect that the CFMEU should also be found liable as an accessory pursuant to s 550 of the FW Act.

25    None of the individual respondents gave evidence and none adduced any other evidence (other than by cross-examination of the Director’s witnesses).

26    The respondents emphasised the character of the proceeding as penalty proceedings and, accordingly, that the Court should give effect to the principle derived from Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2. That principle requires that the Court must feel an actual persuasion of the fact to be proved before it can be found and that, before making a finding, the Court take into account the seriousness of the allegations made and the consequences for a respondent arising from a finding: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) [1992] HCA 66 at [2]; (1992) 110 ALR 449 at 450. Section 140 of the Evidence Act 1995 (Cth) is a statutory reflection of this principle.

Elements of a s 500 contravention

27    The elements of the alleged contraventions of s 500 to be established by the Director in the circumstances of each action are these:

(a)    each individual respondent was the holder of an entry permit issued by the FWC under s 512 of the FW Act;

(b)    the individual respondent was exercising, or seeking to exercise, rights under Pt 3-4 of the FW Act;

(c)    the individual respondent acted in an improper manner.

28    The Full Court has held that the words in s 500 “or otherwise act in an improper manner” comprehend acts other than those involving obstruction or hindering: Setka v Gregor (No 2) [2011] FCAFC 90; (2011) 195 FCR 203 at [30]. In a number of decisions, the Court has also held that the impropriety or otherwise of conduct for the purposes of s 500 is to be assessed objectively: Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106] (CFMEU (No 2)); Director of Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668 at [97] (Bragdon); and, further, that it is not necessary that the alleged contravenor intended to engage in conduct having that character: Darlaston v Parker [2010] FCA 771, (2010) 189 FCR 1 at [54]; Setka v Gregor (No 2) at [35]-[36]; CFMEU (No 2) at [106]; Bragdon at [96].

Lend Lease building sites

29    In 2013, Lend Lease was the head contractor on construction projects at four sites in Adelaide: the Flinders University project at Tonsley Park (the Flinders University site), the TAFE Project at Tonsley Park (the TAFE site), the Convention Centre redevelopment on North Terrace, Adelaide (the Convention Centre site) and the redevelopment of Adelaide Oval (the Adelaide Oval site).

30    The Director alleges contraventions by the CFMEU and its officials at each of those sites.

Flinders University site: 30 October 2013 – the witnesses

31    The witnesses who gave evidence in respect of the events at the Flinders University site on 30 October 2013 were Mr Crabb, Mr Della-Torre, Mr Timms and Mr Grindle.

32    Mr Crabb was Lend Lease’s Site Manager. He is an experienced site manager, and had worked in that role on a number of sites for some six years prior to October 2013. Mr Crabb said, and I accept, that, before 30 October 2013 he had not had any experience of CFMEU officials entering a constructions site without having provided in advance a written notice of entry. He knew on 30 October 2013 that no notice of entry had been provided in relation to a proposed entry onto the site by a CFMEU official that day.

33    Mr Della-Torre and Mr Timms were employed by Lend Lease on the Flinders University site as dogmen. Mr Grindle was employed by System Formwork, a subcontractor to Lend Lease, as a Work Health Safety Advisor.

34    Each of Mr Crabb, Mr Della-Torre and Mr Timms was plainly an honest and reliable witness. I have no hesitation in accepting their evidence as a proper basis for findings of fact. Mr Grindle’s evidence was also honest, and I considered it to be generally reliable.

Flinders University site: 30 October 2013 – findings as to the conduct

35    The Director’s allegations with respect to the conduct at the Flinders University site on 30 October 2013 concern the CFMEU, the second respondent (Mr Gava), the third respondent (Mr Kalem) and the fourth respondent (Mr Lomax). On the basis of the admissions in the pleadings by these respondents and the evidence given by the Lend Lease witnesses and Mr Grindle, I make the following findings as to that conduct.

36    Mr Crabb was alerted to the presence of several CFMEU officials on the site just before 9:00 am. He started to walk towards the site office, expecting to meet the men there. However, they had already entered the site and were walking around unescorted. This was despite the signs at the entry gates indicating that all visitors had to report to the site office, be escorted at all times, and to wear appropriate personal protective equipment (PPE) and clothing.

37    Mr Crabb knew Mr Gava from previous contact. He approached him and a conversation to the following effect ensued:

Mr Crabb:    Morning Mark. I haven’t seen an entry permit for any of you guys.

Mr Gava:        Yeah, that’s right. We haven’t got one.

Mr Crabb:    Well, you need one. You know I need to ask you to leave if you haven’t got one.

Mr Gava:    We’re not leaving. This is the way it’s done now. We’re going for a walk on the site.

38    The other men stood about 7-10 m away at the time and did not contribute to the discussion. Mr Gava said to Mr Crabb “this is Moe, Vern and John. These guys are officials from interstate and they want to look around”. As a result of discussions later that day, Mr Crabb learnt that Moe (Mr Kalem) and Vern were from Melbourne and John (Mr Lomax) from Canberra. The evidence did not identify Vern more particularly but he, like the others, was wearing a hard hat and clothing with CFMEU insignia and logos. I think it probable, and so find, that he too was a CFMEU organiser.

39    The four CFMEU officials then walked further into the site. They walked around the site for about 15-20 minutes, mostly staying in the vicinity of one another, but moving separately. Mr Crabb rejected the suggestion that Mr Gava had appeared to be leading the group. Mr Crabb followed the officials but at a distance of about 20 m as he wished to avoid creating a confrontation. He observed them talking with six to eight formworkers, taking photographs and making audio notes on their mobile phones. Mr Crabb could not hear all the conversations but noted that several were brief (30 seconds to a minute) and seemed to be in the nature of short enquiries by the officials and answers by the workers.

40    The officials then approached Mr Crabb. They told him of some observations which they had made regarding a second access staircase to the formwork decks, access under the formwork platforms and the locking of the switch box containing RCD breakers. Either Mr Kalem or Vern (Mr Crabb could not remember whom) referred to how things were done in Melbourne.

41    By this time it was about 9:30 am, the time for the morning smoko of the formworkers. They went to the lunch shed and the four CFMEU officials followed them. They remained in the lunch shed until the end of smoko. Mr Gava then had a conversation with Mr Grindle.

42    One of the CFMEU officials asked Mr Crabb if they could sit down somewhere with him and have a talk. Mr Crabb agreed. The officials also asked Mr Wallace, a Safety Advisor employed by Lend Lease, and Mr Grindle to join them. The meeting took place in the Induction Room on the site.

43    In the meeting, the officials raised a request that the Lend Lease Safety Committee commence carrying out site walks, that padlocks be put on electrical boards, that access ways through frames be defined and that there be two stair access points to the “live deck”. The discussion on these issues was mainly led by Mr Lomax.

44    Mr Gava and Mr Lomax then raised the question of Lend Lease employing a permanent CFMEU delegate on the site. Mr Crabb was aware of this issue as it had been raised by the CFMEU a number of times over the previous three weeks, although not by Mr Gava. He told the men that this was not something which could be agreed at the site level and that the request should be made to Lend Lease senior management, with words to the effect “you will need to get Aaron [Cartledge, the State Secretary of the CFMEU] to speak to Chris Leopold if that’s going to happen”. Mr Crabb also said, and I accept, that both Mr Gava and Mr Lomax led the discussion on this topic and that he could not recall Mr Kalem or Vern contributing to it.

45    The officials then raised the topic of the CFMEU flag on the crane. The discussion on this topic was mostly by Mr Kalem, with some support from Vern. The conversation was to the following effect:

Mr Kalem:        Why isn’t the CFMEU flag on the crane hook?

Mr Crabb:    It’s fixed to the machine deck on the crane where it is secure and that is where it will stay.

Mr Kalem/Vern:    Every crane in Melbourne’s got it, every crane in the country has it except for you. We want the flag flying.

Mr Crabb:    It’s on the crane.

Mr Kalem:    It better be flying by lunchtime.

Mr Crabb said that both Mr Kalem and Vern had made the second statement in this passage, albeit at different times during the discussion.

46    Shortly after this exchange the meeting ended and, at approximately 10:40 am, the CFMEU officials left the Flinders University site. About 10 minutes before the end of the meeting, a fifth person wearing clothing with CFMEU insignia and logos had entered the Induction Room. The evidence did not indicate the identity of this person other than that his name was Leo. I think it probable, and so find, that Leo was also a CFMEU organiser. Leo was present during the discussion about the site delegate and CFMEU flag and contributed to the discussion on those issues. He left at the same time as the other officials.

47    The original group of four and Leo returned to the Flinders University site at about 2:15 pm. No prior notice of their intention to do so had been given. Mr Gava entered the site office through the back door and interrupted Mr Crabb who was then in a meeting, asking “can I have a word with you”. A conversation to the following effect ensued:

Mr Gava:    Why isn’t the flag on the hook? We want the flag on the hook.

Mr Crabb:    It’s on the machine deck. That’s where it is staying. We are not putting it on the hook.

Mr Gava:    If you don’t do it, we will stop the job.

Mr Crabb shrugged his shoulders.

Mr Kalem:    If you don’t put it up there we’ll bring back ten brothers tomorrow and stop the job.

Mr Crabb:    You do want you’ve got to do, but the flag isn’t going up.

One of the officials:    We’re not leaving until it’s on.

48    Mr Crabb said, and I accept, that, while the above exchange was occurring, the other CFMEU officials were making statements such as “this is bullshit mate”, “just chuck it up there” and “if you don’t do it, we will”. He agreed that neither Mr Gava nor Mr Lomax had become “too involved” in the discussion about the flag and that it was mostly Mr Kalem and Vern who had spoken.

49    It was put to Mr Crabb in his cross-examination that, by the words “you do what you’ve got to do”, he had conveyed that, if Mr Gava was insistent on the flag being on the hook, then that is what was going happen. Mr Crabb rejected that suggestion. He said that he intended by the words not to enter in to any further argument and that if the men proceeded, he was not going to attempt physically to stop them. I accept Mr Crabb’s evidence about this and find that neither Mr Gava nor the other CFMEU officials could have understood him to be acquiescing in, let alone authorising, the placement of the flag on the hook.

50    Mr Crabb agreed that, when interviewed by a Fair Work Building Inspector on 4 November 2013, he had not attributed the words “if you don’t put it up there we’ll bring back 10 brothers tomorrow and stop the job” to Mr Kalem, but simply to “the Melbourne guys”. He maintained nevertheless that it was Mr Kalem who had made that statement. I accept his explanation that it was only on 4 November 2013 after he had viewed the photographs of the CFMEU officials and recalled their respective locations in the Induction Room that he could say confidently that it was Mr Kalem who made the statement about bringing back 10 brothers. As previously indicated, I considered that Mr Crabb was an honest and reliable witness and I accept his evidence about that.

51    Mr Crabb did not want to have the flag on the hook of the crane because of safety considerations. He considered that dogmen have to be vigilant in watching the hook and load and that a flag flapping around in their line of sight can be distracting.

52    Mr Crabb said that he felt under pressure to agree to the location of the flag on the hook, but had not felt threatened. He was uncertain at the time as to whether there would be any consequences on the site as a result of his refusal to agree to the CFMEU demand.

53    At the end of this exchange, the group of five moved onto the site. Mr Crabb called them back, pointing out that some were not wearing the correct PPE. Those who were not wearing the correct PPE left to get these items and returned.

54    Mr Gava and possibly one other approached Mr Della-Torre who was then working as a dogman on the crane. Mr Della-Torre knew Mr Gava. A conversation took place between them to the following effect:

Mr Gava:        Why isn’t the flag on the hook of the crane?

Mr Della-Torre:    I’ve been told by my supervisor not to put it there, so we’ve got it erected at the rear of the crane.

Mr Gava:    I want it moved to the hook.

Mr Della-Torre:    If you need it in another position, then I have to confer with my supervisor and make sure that he’s happy with that.

Mr Gava:    I want it done immediately.

Mr Della-Torre:    We are very busy. We’ll do it at the end of the day.

Mr Gava:    I want it done immediately.

Mr Della-Torre:    Well, I need to speak with my supervisor. Give me 10 minutes so that I can finish what I am doing and I’ll try to arrange something.

55    The supervisor to whom Mr Della-Torre referred was Mr Crabb, the Site Manager.

56    Mr Gava then walked over to Mr Timms, who was also working at a dogman. A conversation to the following effect took place between Mr Gava and Mr Timms:

Mr Gava:        Will you put the flag on the hook?

Mr Timms:    Only if the boss says it’s OK. The flag is up there now, at the back of the crane like you requested, tied to the rail. Why don’t I just get the driver to cut one side of it and then the flag will be flying?

Mr Gava:    OK.

The “boss” to whom Mr Timms referred was Mr Crabb.

57    Mr Timms then radioed the crane driver, Mr Nicholls, and said words to the effect:

Mark Gava has been down here. If you cut the flag on one side, they’ll be happy to leave it like that.

58    Mr Nicholls responded by saying “OK”. He then moved out of the cab to the railing at its rear and cut one side of the flag with the effect that it was then flying at the back of the crane. Mr Gava and Mr Timms then had a conversation to the following effect:

Mr Timms:        Is that good enough?

Mr Gava:        Yep, that’s alright.

59    Mr Gava then walked back to the CFMEU group but about five minutes later returned to Mr Timms and a conversation to the following effect occurred:

Mr Gava:        That’s not good enough. We want it on the hook.

Mr Timms:        Did Brenton [Crabb] say that it was alright?

Mr Gava:        Yeah, he told me it was good.

Mr Gava’s statement conveying that Mr Crabb had given approval for the relocation of the flag was false as Mr Crabb had said expressly that the flag was to stay in its existing location. Mr Gava could not have understood him to be saying otherwise.

60    Mr Timms then radioed Mr Nicholls again and said words to the effect “the Union isn’t happy about the flag. They want it on the hook. Just see if you can cut it down and send it down to me.” Mr Nicholls gave effect to that request by pulling the chains on the crane up, tying the flag to chains and then lowering the flag to ground level at Mr Timms’ location. Mr Della-Torre and Mr Timms then attached the flag to the hook. Work with the crane stopped for 15-20 minutes while this occurred.

61    The group of CFMEU officials watched this occur and took a number of photographs. While the flag was being put on the hook, some of the officials made comments to the effect of “well done boys”, “it’s finally in its right location” and “we’ll be taking photos to show our members”. The evidence did not identify the particular members of the group who made those comments.

62    When Mr Della-Torre finished fixing the flag to the hook, he asked Mr Gava questions to the effect of “so is this what’s going to happen to every crane in the State? That they’ll all flying on the hook?”. Mr Gava did not answer these questions.

63    Mr Crabb was close by while this occurred but could not hear the conversations between the CFMEU officials or the conversations between Mr Gava, Mr Della-Torre and Mr Timms. He took photographs of the CFMEU officials. Two of his photos and one taken on behalf of the CFMEU were tendered. These show that Mr Gava, Mr Kalem, Mr Lomax, Vern and Leo were present when the crane stopped work and the flag repositioned to the hook.

64    The CFMEU officials left the site at about 3 pm. As they were walking off the site, Mr Kalem said to Mr Crabb words to the effect of “the flag had better be up there tomorrow or there will be trouble”.

65    The flag was removed from the crane at Mr Crabb’s direction on the following morning.

Flinders University site: the s 500 contraventions

66    The Director does not allege separate contraventions arising from the conduct in the morning and afternoon on 30 October, only a single contravention of s 500 arising from the conduct in the morning. In particular, he does not rely on the conduct concerning the CFMEU flag for the alleged contraventions of s 500.

Mr Gava

67    Mr Gava admitted his contravention of s 500. He acknowledged that he had entered the site for the s 484 purpose without having provided a notice entry in accordance with s 487 and that, by reason of those circumstances, his refusal to leave when requested to do so by Mr Crabb, his remaining on site for a period of more than one hour, and his holding of discussions with workers on site, he had engaged in improper conduct to which s 500 refers.

Mr Kalem and Mr Lomax

68    The contraventions of s 500 by Mr Kalem and Mr Lomax can conveniently be considered together.

69    The Director’s allegation is that all the CFMEU officials, including Mr Kalem and Mr Lomax, entered the site for the purpose of holding discussions with workers, pursuant to s 484.

70    The respondents’ counsel submitted that it had not been established that either Mr Kalem or Mr Lomax had entered the Flinders University site for such a purpose, with the effect that the Director had not established the second element of a s 500 contravention. He submitted that the evidence established instead that Mr Kalem and Mr Lomax had entered the site for the purpose of inspecting it generally, and referred in this respect to Mr Gava’s statement when first challenged by Mr Crabb, “these guys are officials from interstate and they want to look around”. This submission was consistent with the pleadings of Mr Kalem and Mr Lomax.

71    The purpose of a person’s entry in the context of s 484 is to be assessed objectively having regard to all the surrounding circumstances. The statements made by the person at the time of the entry, or subsequently, may be relevant to that assessment but are not conclusive. The person’s conduct and other circumstances after the entry may be more revealing of the person’s actual purpose or purposes.

72    There is no reason to construe the word “discussions” in s 484 narrowly. To hold otherwise would be to confine the kinds of discussions which union officials generally may have in the course of their legitimate activities. The term should be given its ordinary meaning. That includes “talking something over”. Even a brief conversation comprising little more than an introduction and an enquiry as to whether a worker has any concerns may constitute a discussion in the relevant sense. There is no reason to incorporate into s 484 a requirement that the discussions be of a formal kind, concern the pursuit of an agenda, or be of some minimum duration. The section itself contemplates that the discussions may be with one or more employees. A discussion with an individual employee may of necessity be brief. Section 480 contemplates that the discussions may be with potential members, as well as existing members. Discussions with such persons may be of diverse kinds, again indicating that the term should not be given a narrow meaning. Sections 132 and 194 indicate that Pt 3-4 is intended to be the only prescription with respect to workplace entry by union officials, an intention which may well be frustrated if the term “discussions” was construed narrowly.

73    In my opinion, a number of matters indicate that Mr Kalem and Mr Lomax had entered the Flinders University site for the s 484 purpose:

(a)    upon entering, the CFMEU officials did not just “look around”. All of them held discussions with workers on the site, at the least when walking around the site separately. Even if the CFMEU officials were making contact with the formworkers, introducing themselves and enquiring briefly as to any concerns which they had, their conversations constituted discussions of the requisite kind;

(b)    further, all of the CFMEU officials followed the formwork workers into the lunchroom at the 9:30 smoko. Although there is no evidence as to what was said in the lunchroom, it is reasonable to suppose, and I find, that the CFMEU officials discussed matters with the formworkers at that time. I observe also that the lunchroom was a place in which discussions authorised by s 484 may take place (FW Act s 492);

(c)    following the smoko, the CFMEU officials (by one of their number) asked to meet Mr Crabb and requested Mr Wallace and Mr Grindle, two employees concerned with safety, to join them at that meeting. The CFMEU raised at the outset of the meeting aspects of safety on the site. It is reasonable to suppose that they had been informed of at least some of these during the smoko meeting and were, accordingly, making representations on behalf of their members;

(d)    the impression that the CFMEU officials were acting in the manner of union officials exercising s 484 rights is confirmed by the similarity of their conduct with that of officials on previous occasions when entering after giving s 487 notices;

(e)    Mr Gava’s explanation to Mr Crabb for refusing to comply with his direction that he leave the site is instructive. He said “this is the way it’s done now”, thereby impliedly referring to the way by which the CFMEU proposed exercising the right of entry and not to some new or different entitlement;

(f)    the suggestion that the CFMEU organisers were present simply to look around, as though to satisfy their curiosity, is not plausible. The fact that they were there as a group during their own working hours, wearing clothing and hard hats with the CFMEU logos and insignia, suggests by itself that they were present as part of an organised activity, something seemingly not consistent with a wish to satisfy idle curiosity;

(g)    the officials had no entitlement to be on site other than granted by ss 481 and 484 of the FW Act and by the WHS Act. They were no more entitled to enter the site to satisfy their curiosity than any other member of the public. In fact, once Mr Crabb had requested them to leave, they were probably committing the criminal offence of trespass: Summary Offences Act 1953 (SA) s 17A. There may be a question, as counsel for the respondents submitted, as to whether the officials other than Mr Gava knew of Mr Crabb’s request that they leave. But even if they did not, there is no basis upon which they could have thought, reasonably, that Mr Crabb had granted them permission to enter the site simply to look around or to satisfy their curiosity. The fact that they did not wait at the site office but entered the site without first speaking to Mr Crabb is also pertinent in this respect; and

(h)    the CFMEU officials entered the site in the manner of persons entering as of right, and did not wait at the site office or otherwise seek approval to come onto the site. That is to say, the CFMEU officials behaved as though they were entitled to enter pursuant to s 484.

74    These matters give rise to an inference that each of the CFMEU officials had entered for the s 484 purpose. That inference can be drawn with greater confidence given that neither Mr Kalem nor Mr Lomax gave evidence: Jones v Dunkel (1959) 101 CLR 298 at 308; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, (2011) 243 CLR 361 at [63]-[64].

75    Counsel for the respondents submitted that the evidence did not establish that Mr Kalem and Mr Lomax had entered the site for the purpose of discussions with employees whose industrial interests the CFMEU was entitled to represent and, therefore, for the s 484 purpose. He contended that the evidence disclosed that Mr Kalem and Mr Lomax had spoken only with management; that even if they had spoken to other persons, the evidence did not establish that those persons were employees and not contractors; and that, even if they had spoken to persons who were employees, the evidence did not establish that they were persons whose industrial interests the CFMEU was entitled to represent. Part of this last submission was to the effect that the Director had not proven the CFMEU membership eligibility rules.

76    It is appropriate to keep in mind that the second element of a s 500 contravention requires proof that the permit holder was exercising, or seeking to exercise, rights in accordance with Pt 3-4 of the FW Act. This means that the second element will be established if the permit holder was, as a matter of fact, exercising (relevantly) the s 484 right or seeking to exercise that right. Permit holders may seek to exercise the s 484 right even though they are mistaken in their belief that there are employees on the site at the time of the entry, or that there are on the site employees whose industrial interests the permit holder’s organisation is entitled to represent, or that persons answering that description do wish to participate in discussions with them. Proof that each of the elements listed in s 484 pertained at the time of the official’s entry is not required, at least in respect of an allegation that the permit holder was seeking to exercise rights under Pt 3-4.

77    Accordingly, even if the respondents’ submissions on this topic were accepted, it would not mean necessarily that Mr Kalem and Mr Lomax were not entering for a s 484 purpose.

78    However, the evidence does not support the CFMEU submission at a factual level. Contrary to counsel’s submission, there is evidence that Mr Kalem and Mr Lomax spoke to persons other than management personnel. Mr Crabb described “the officials” holding separate discussions with 6-8 different formworkers as they moved about the site. It is true that Mr Crabb did not specifically mention Mr Kalem and Mr Lomax in this regard, as he referred only to “the officials”. However, there is no suggestion that Mr Crabb was referring only to some of the officials. Further still, all of the officials went with the formworkers into the lunchroom at the morning smoko. As indicated earlier, although there is no evidence as to what occurred in the lunchroom, it is reasonable to suppose that the officials, including Mr Kalem and Mr Lomax, had discussions with the formworkers.

79    Counsel’s submission seemed to rest on the proposition that the possibility that Mr Kalem and Mr Lomax had remained mute during the lunchroom meeting could not be excluded. That may be so, but that would not mean, to my mind, that Mr Kalem and Mr Lomax were not, as part of the larger group, holding discussions of a relevant kind. It is common experience that discussions may take place involving three or more persons even if one of the participants remains silent. It is an ordinary incident of the holding of discussions that those present listen to what others have to say. It is also common experience that in group discussions some persons participate by allowing others to be their spokespersons. In my opinion, it is improbable, in the context of the lunchroom meeting, that Mr Kalem and Mr Lomax did not hold discussions with the formworkers who were present either by speaking themselves, or at least to listening to the statements of the other CFMEU officials made on behalf of the group and to those of the formworkers. The Jones v Dunkel principle adds to the confidence with which this conclusion may be drawn.

80    The possibility that the workers to whom Mr Kalem and Mr Lomax spoke were not employees, or did not include employees, is so remote as to be able to be ignored. Mr Crabb said that there were some 40-50 persons working on site on 30 October 2013. It can be inferred that most of these persons were formworkers as Mr Crabb also said that they were the only workers on the site at the time. Mr Crabb acceded in cross-examination to counsel’s proposition that “a significant number” would have been contractors and subcontractors. Counsel did not ask him to elaborate on this answer. In context, I would not regard a “significant number” as equivalent to “nearly all” the workers, or even to a majority of them. It is much more likely to mean only an appreciable number. It is reasonable to suppose, and I find, that many of the formworkers were employees and not subcontractors. Put slightly differently, it is improbable that they were all subcontractors.

81    The probability that the workers on site comprised a large number of persons who were not only employees, but employees whose industrial interests the CFMEU was entitled to represent, is supported by the evidence of the CFMEU’s own activities and demands. CFMEU officials had attended at the site on a number of previous occasions. The inference that they had attended to service the interests of persons (employees) whom the CFMEU was entitled to represent is strong, as they had no obvious interest in servicing the interests of other persons. So also is the inference arising from the CFMEU’s demands on 30 October 2015, and in the previous weeks, for a permanent CFMEU delegate on the site. It is improbable that the CFMEU would have made such a demand if it did not have members, or potential members, working on the site.

82    It is true that the Director did not prove the CFMEU’s membership rules. However, it was not necessary for him to do so given that each of the respondents had admitted the following plea in the Further Amended Statement of Claim (FASC):

At all material times, the CFMEU’s eligibility rules allowed membership by persons whose employment consisted of, or included, any of the following activities:

3.1    The construction, alteration, restoration, repair, demolition or dismantling of buildings, structures or works that form or are to form part of land;

3.2    Any operation part of or preparatory to those activities, such as site clearance, earthmoving, excavation, the laying of foundations or the erection or maintenance of scaffolding.

83    For these reasons, I do not accept the respondents’ submission as to the purpose of Mr Kalem and Mr Lomax.

84    Exercising the restraint which s 140 of the Evidence Act makes appropriate, I consider that the evidence, taken as a whole, indicates that Mr Kalem and Mr Lomax, like the other CFMEU officials, were asserting an entitlement to enter for the s 484 purpose without having to give the notice of entry required by s 487. The alternatives, namely, that they were entering simply out of curiosity, or in the manner of persons committing a criminal trespass, are so improbable as to be able to be disregarded.

85    I am satisfied that the conduct of Mr Kalem and Mr Lomax was improper. They entered the site without having provided a notice of entry and without having obtained permission to do so and remained there for an hour and 40 minutes. I am satisfied that they knew at the time that they were not entitled to enter the site simply for the purpose of looking around. The circumstance that Mr Kalem and Mr Lomax distracted workers by speaking to them as they worked adds to the impropriety of their conduct.

86    Counsel for the respondents submitted that the evidence did not show that Mr Kalem and Mr Lomax had heard Mr Crabb’s request to Mr Gava that they leave the site. I accept that submission, as Mr Crabb said that Mr Kalem, Mr Lomax and Vern were some seven to ten metres away at the time of his request. Although he thought that they were within earshot, he did not point to any aspect of their behaviour which indicated that they had heard the request.

87    However, I do not accept counsel’s further submission that the conduct of Mr Kalem and Mr Lomax was not improper because they did not know of Mr Crabb’s request that they leave. Neither Mr Kalem nor Mr Lomax could have thought that they had permission to enter or remain on the site and, accordingly, to conduct themselves as though they were present as of right. A sign at the entrance told visitors to report to the site office. Mr Kalem and Mr Lomax could not have thought, as counsel submitted, that merely because they were accompanying Mr Gava, they could ignore this direction. Their conduct does not avoid the characterisation of being improper only because they were not aware that Mr Crabb had made the request or direction that they leave. Ignoring such a request or direction may, in some circumstances, add to the impropriety, but it is not essential for such a finding.

88    As previously noted, the Director did not rely on the conduct of Mr Kalem and Mr Lomax in their return to the site in the afternoon for the alleged contravention of s 500.

89    Accordingly, there will be declarations as to the contraventions of s 500 by Mr Gava, Mr Kalem, Mr Lomax and the CFMEU as sought by the Director.

Flinders University site: contravention of s 348 – coercion

90    Section 348 of the FW Act prohibits forms of coercive conduct:

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.

91    The term “engage in industrial activity” is defined in s 347 to include (relevantly):

(b)    (iv)    comply with a lawful request made by, or requirement of, an industrial association; or

(v)    represent or advance the views, claims or interests of an industrial association;

92    The Director’s contention is that each of Mr Gava, Mr Kalem and Mr Lomax threatened to organise, or to take, action against Lend Lease with the intention of coercing it to comply with the request that it fly the CFMEU flag on the crane hook (s 347(b)(iv)) or to advance the interests of the CFMEU, an industrial association, by flying its flag (s 347(b)(v)).

93    Mr Gava and Mr Kalem are alleged to be primary contravenors; Mr Lomax is said to have contravened s 348 by being involved in the contraventions of Mr Gava and Mr Kalem, within the meaning of s 550; and the Director relies upon s 793 of the FW Act in relation to the alleged contravention of the CFMEU. The Director also alleges that Mr Kalem was involved in the contravention by Mr Gava.

Mr Gava and Mr Kalem

94    By an Amended Defence filed on the first day of trial, Mr Gava admitted the contravention of s 348 alleged against him, and the CFMEU admitted its contravention constituted by the conduct of Mr Gava. However, Mr Gava denied some aspects of the Director’s evidence involving him and, in particular, denied that he had said words to Mr Crabb to the effect of “if you don’t put the flag up, we will stop the job”. I have already found that Mr Gava did make a statement to Mr Crabb to that effect.

95    I am satisfied that Mr Gava’s statement to Mr Crabb shortly after re-entering the Flinders University site at about 2:15 pm to the effect of “if you don’t do it [put the flag on the hook], we will stop the job” was a threat to organise or take, or in the alternative a threat to organise or take, action against Lend Lease. Similarly, Mr Kalem’s statement shortly afterwards to the effect of “if you don’t put it up there we’ll bring back 10 brothers tomorrow and stop the job” was a threat of a like kind. I am also satisfied that Mr Kalem’s statement to Mr Crabb at the time that the CFMEU officials were walking off the site at about 3 pm to the effect of “the flag had be better be up there tomorrow or there will be trouble” was a threat to take, or to organise to take, action against Lend Lease.

96    The Director submitted that the intentions of Mr Gava and Mr Kalem were evident in the words they used, namely, demands that the CFMEU flag be attached to the crane hook and that it be kept there. These were lawful requests, in the sense that they were not prohibited by the law. The circumstance that the requests were made at a time when the CFMEU officials were on the site unlawfully did not mean that the requests themselves were not lawful.

97    The CFMEU officials were seeking to have Lend Lease engage in a form of industrial activity contemplated by s 347(b)(v). They wanted Lend Lease to agree to the CFMEU flag being attached to the hook as a way of advancing the interests of the CFMEU. I infer that Mr Kalem and Mr Lomax thought that the flying of the flag would have that effect if only because it would be a prominent promotion of the CFMEU and of the influence which it was able to exert on the site: cf Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [75].

98    The respondents did not make any submission to the contrary of these conclusions. On the contrary, counsel conceded that, if the Court was satisfied that if Mr Kalem had used the words attributed to him by Mr Crabb, then the contravention of s 348 by him would be made out.

99    Strictly speaking, this makes it unnecessary to consider the Director’s reliance upon the reverse onus provision in s 361 of the FW Act. Section 361(1) provides:

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

100    The Director submitted that, given that the respondents had not adduced any evidence to the contrary, his allegation in [41] of the FASC that Mr Kalem had “threatened to organise or take, the actions pleaded therein with the intention to coerce Lend Lease to comply with the request to fly the CFMEU flag and/or to advance the interests of the CFMEU by flying its flag” was to be presumed.

101    The respondents submitted that, because s 361 referred only to the taking of “action”, it could have no application to a threat to take, or to organise to take, action in contravention of s 348.

102    In my opinion, this submission should not be accepted. The word “action” is used in s 361(1) without qualification. This Court should not readily impose a limitation which the legislature itself has not imposed so as to exclude from the operation of s 361 actions which consist of threats.

103    Counsel submitted that the legislature may have intended to draw a distinction between action, on the one hand, and threats to take action, on the other because the purpose for which a threat is made will often be apparent in the terms of the threat itself, whereas that may not always be so in the case of actions. I doubt that this provides a sound basis for the distinction which the respondents sought to draw: it is commonly the case that the purpose for which a threat is made is not disclosed in the terms of the threat but is to be implied from a range of antecedent, or even subsequent, circumstances. Contrary to the respondents’ submission, the Minister’s statement in the Explanatory Memorandum for the introduction of the Fair Work Bill 2008 does not provide support for their submission. In relation to the then cl 361, the Minister said:

Clause 361 reverses the onus of proof applicable to civil proceedings for a contravention of Part 3-1. It is intended to broadly cover s 809 of the WR Act.

Section 809 was the counterpart provision in the Workplace Relations Act 2006 to s 361 in the FW Act. As is apparent, the Minister did not draw a distinction between the kinds of conduct to which s 361 may apply. Further still, s 809 of the former Workplace Relations Act 1996 (Cth) did not draw that distinction.

104    I observe that s 361 has been applied by this Court in relation to threatened action under s 348 in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 at [264]-[265] (Tracey J) and CFMEU (No 2) at [100] (Mansfield J). It seems however, that the point now raised by the respondents in this case was not raised in either of those cases.

105    For these reasons, I reject the construction of s 361 for which the respondents contended. As the respondents did not adduce any evidence to the contrary of the Director’s allegation, it is to be presumed that Mr Gava and Mr Kalem took their action for the proscribed purpose contained in that allegation.

106    I find that the contraventions by Mr Gava and Mr Kalem of s 348 are established. The CFMEU also contravened s 348, by reason of the conduct of each.

Accessorial liability of Mr Lomax

107    The Director alleges that Mr Lomax contravened s 348 of the FW Act by acting as an accessory in relation to the contraventions of Mr Gava and Mr Kalem. In relation to accessorial liability, s 550 of the FW Act provides:

550 Involvement in contravention treated in same way as actual contravention

(1)    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2)    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced the contravention, whether by threats or promises or otherwise; or

(c)    has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)    has conspired with others to effect the contravention.

108    As can be seen, subs (1) has the effect that a person who is “involved in” a contravention of a civil remedy position is taken to have contravened that provision. Subsection (2) elaborates the ways in which a person may be “involved in” a contravention. The FASC did not particularise the particular means contemplated by subs (2) by which Mr Lomax was said to have been involved in the contraventions of Mr Gava and Mr Kalem. However, in his opening submissions, counsel for the Director said that reliance was placed upon subss (2)(a) and (c).

109    The principles applicable to the determination of Mr Lomax’s liability as an accessory are settled. In order to aid, abet, counsel or procure the relevant contravention, the person must participate intentionally in the contravention with the requisite intention: Yorke v Lucas (1985) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. The Full Court in Rafferty v Madgwicks [2012] FCAFC 37; (2012) 287 ALR 437 summarised the position in this respect at [254]:

[W]hile the identification of the elements of a contravention requires careful legal analysis, “[i]n order to know the essential facts, and thus satisfies s 75B(1) ... and like provisions, it is not necessary to know those facts are capable of characterisation in the language of the statute”. ... This is another aspect of the longstanding principle that it is not necessary for a person to “recognise” the contravention as such, or explicitly to think about the relevant legislation that their actions may contravene ...

110    Actual, rather than imputed, knowledge is required: Giorgianni v The Queen (1985) 156 CLR 473 at 506-7.

111    The notion of being “knowingly concerned” in a contravention has a different emphasis from that of “aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection” between the person and the contravention: Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503 at [324]-[325]. See also Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26].

112    In my opinion, the evidence establishes, at the least, that Mr Lomax was knowingly concerned in the contravention of s 346 arising from the threats with respect to the CFMEU flag. He was present with the other CFMEU officials at the meeting in the lunchroom with Mr Crabb on 30 October 2013. As noted earlier, he took the lead in the discussion about the safety issues, and he and Mr Gava took the lead in relation to the discussion about the CFMEU site representative. Mr Crabb said that neither Mr Gava nor Mr Lomax were “too involved” in the discussion about the CFMEU flag but thought that Mr Lomax had “chipped in” during the discussion about the flag. Mr Lomax had full knowledge of the matters relied upon by the Director for the contravention. There is no indication at all that Mr Lomax dissociated himself from his colleagues’ statements.

113    Mr Crabb did not make any express reference to Mr Lomax contributing to the exchanges which occurred when the CFMEU officials returned at about 2:15 pm but he did describe “the other CFMEU officials” generally making statements such as “this is bullshit mate”, “just chuck it up there” and “if you don’t do it, we will”. That evidence does not establish that Mr Lomax made any of those statements but he was present when the statements were made and did not dissociate himself from them. On the contrary, Mr Lomax identified himself with the demands to Mr Crabb in relation to the flag by his conduct in proceeding with the other CFMEU officials to the crane. He was present when Mr Gava spoke to Mr Della-Torre and thereby implicitly lent his support to what Mr Gava said. Further still, the photographs show that Mr Lomax assisted in the attaching of the flag to the crane by supporting it while Mr Timms was attaching it to the hook.

114    Counsel for the respondents submitted that the evidence indicated only that Mr Lomax had been present when the statements of Mr Gava and Mr Kalem on which the Director relied had been made. He submitted that passive participation of this kind is insufficient to establish accessorial liability under s 550: Fabinyi v Anderson (1974) 9 SASR 336 at 338-9. However, Mr Lomax’s involvement went beyond mere passive presence. In addition to the matters already mentioned, there is the circumstance that he had returned with the group of CFMEU officials at 2:15 pm when the only purpose of their return was the pursuit of the flag issue.

115    Accordingly, I am satisfied that the Director has established Mr Lomax’s contravention of s 348. Again, the CFMEU is taken to have contravened s 348 by reason of the conduct of Mr Lomax.

Accessorial liability of Mr Kalem

116    The Director alleges that Mr Kalem had been “involved in” the contravention of Mr Gava, within the meaning of s 550. The matters already canvassed indicate that that allegation is established. I will make the declarations with respect to this breach by Mr Kalem, and that of the CFMEU, sought by the Director.

Flinders University site: contravention of s 346

117    Section 346 of the FW Act provides:

346 Protection

A person must not take adverse action against another person because the other person:

(a)    is or is not, or was or was not, an officer or member of an industrial association; or

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c)    does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

118    The term “adverse action” used in s 346 is defined in an expansive way in s 342(1). In relation to conduct by an industrial association such as the CFMEU and its officials, “adverse action” includes the organising or taking of “industrial action” against a person. By s 342(2), adverse action is extended to include threatening to take (relevantly) “industrial action”.

119    The term “industrial action” is defined in s 19(1) of the FW Act to include “a ban, limitation or restriction on the performance of work by an employee” (subs (1)(b)).

120    The Director’s allegation is that Mr Kalem contravened s 346 by threatening to impose a ban, limitation or restriction on the performance of work by Lend Lease because Lend Lease proposed not to engage in a form of industrial activity, namely, the activity to which s 347(b)(iv) and (v) refer. This was the same “industrial activity” upon which the Director relies for the contravention of s 348. The Director alleges therefore that s 346(c) is engaged.

121    The allegations against Mr Lomax is that he contravened s 346 by being involved in Mr Kalem’s contravention.

122    However, the Director’s claim overlooks that the industrial activities to which s 346(c) refers are confined to those listed in s 347(c) to (g). There is no suggestion that Lend Lease refused to engage in conduct of those kinds, let alone a suggestion that the CFMEU was threatening adverse action because of its refusal to do so. The Director has, inappropriately, considered that a refusal by Lend Lease to engage in the conduct to which s 347(b)(iv) and (v) refer is sufficient to attract s 346(c).

123    For these reasons, the alleged contraventions of s 346 are not established and that part of the Director’s claim must be dismissed.

Flinders University site: conclusions

124    For the reasons given above, the Director has established contraventions by Mr Gava, Mr Kalem, Mr Lomax and the CFMEU at the Flinders University site on 30 October 2013 of s 500 and s 348 of the FW Act. His remaining claims with respect to that site should be dismissed.

TAFE site: 30 October 2013

125    The evidence indicates that at about 10:40 am the group of CFMEU officials went straight from the Flinders University site to the adjacent TAFE site at Tonsley Park. However, the Director alleges that only Mr Gava and the CFMEU contravened s 500 at the TAFE site.

126    Each of Mr Gava and the CFMEU admit that they contravened s 500 by acting in an improper manner while seeking to exercise rights under s 484 of the FW Act, but they did not admit all the evidence on which the Director relied for this allegation. It is accordingly appropriate to make findings on the basis of the formal admissions and the evidence.

127    The witnesses who gave evidence about the events at the TAFE site were Mr Gooding, the Project Manager, and Mr Burgess, the Site Operations Manager. Each was an employee of Lend Lease. Both Mr Gooding and Mr Burgess were impressive witnesses and I have no hesitation in accepting their evidence as honest and as providing a reliable basis for the following findings of fact.

128    The first indication that Mr Gooding had that CFMEU officials proposed entering the TAFE site on 30 October 2013 came in a telephone call from Mr Gava at 8:13 am that day. Their conversation was to the following effect:

Mr Gava:    Oh Matt, look, I’ve got a bit of a problem. I’m after a favour. Can you help me out?

Mr Gooding:    I’m out of favours. What’s the problem?

Mr Gava:    I’ve got a couple of interstate friends and I just want to come down and show them the job.

Mr Gooding:    Look, I’m more than happy with that, but you know, fill out your right of entry forms and I’ll take you around tomorrow. Do the right process.

Mr Gava:    Well, that’s not going to happen. They need to come and see the site today.

Mr Gooding:    Well, look, I’m feeling uncomfortable with this. I can’t let you in under that premise. Let me make a few phone calls.

Mr Gava:    Don’t bother making any phone calls mate. Doesn’t matter what you say. I was really only just ringing you up to give you the heads up that we are coming down and, whether you like it or not, we’re going to enter your site.

Mr Gooding:    Look, Mark, I’m disappointed with that. If you come onto site today it will be an illegal entry. I don’t know how you expect me to have any respect for you if you come here and you preach that all of the subcontractors need to be compliant will all their payments and safety and all that type of stuff – everything has to be tick, tick, tick, tick, and you have to comply with the rules and regulations and everything – but then you come out here and you’re just turning into the biggest hypocrite because you’re just breaking all the rules and you’re doing whatever you like. So I don’t know how that works.

Mr Gava:    Oh, well, I’m coming out there anyway, so see you later.

129    Mr Gooding and Mr Burgess were both familiar with the process by which union officials provided right of entry notices. In particular, both knew that CFMEU officials entering the TAFE site on previous occasions had always provided in advance a notice of entry to the head office of Lend Lease which had then been distributed to them. Further, both knew that no such notice had been received in respect of an entry on 30 October 2015.

130    Mr Crabb alerted Mr Burgess to the probable entry of the CFMEU officials by a telephone call shortly after the officials left the Flinders University site. Mr Burgess then saw the group of five officials walking across the car park towards the TAFE site at about 10:40 am. He expected the group to ring Mr Gooding and wait to be met and let onto the site, because that had been the practice on previous occasions. This allowed Lend Lease to have visitors, including union officials, escorted at all times while they were on the site. However, neither Mr Gooding nor Mr Burgess received such a call.

131    Mr Burgess and Mr Gooding then walked around the site trying to find the officials. They found them in one of the lunchrooms, speaking to about six employees of GMR, a partitioning contractor. All of the officials were wearing vests or shirts, and hard hats, with CFMEU logos and insignia.

132    Mr Gooding and Mr Gava then had a conversation to the following effect:

Mr Gooding:        How are you going Mark? What’s your intentions today?

Mr Gava:    Uh, nothing much. Just come here to have a chat to the boys and show me mates around.

Mr Gooding:    You can’t go out onsite. You don’t have a right of entry notice. Mark, you understand the rules and all that type of stuff. Even if today there was a safety concern that you had ...

Mr Gava:    Oh, yeah, well, we’re here to check safety.

Mr Gooding:    No, well, that’s not how it works. You have to have an imminent safety risk that you specifically identify.

Mr Gava:    Oh, well, we’re just going to go out there and have a look.

133    There was further conversation between the men but Mr Gooding was not able to recall all its details. In particular, there was further mention of the fact that the officials had not provided a right of entry notice. In that regard, Mr Gava said “that’s the way it’s going to be from now on”.

134    The conversation between Mr Gooding and Mr Gava in the lunchroom concluded with an exchange to the following effect:

Mr Gooding:        You can’t go on site.

Mr Gava:    Look, don’t go there, Matt. I’ve just had the same conversation with Brenton Crabb. We’ll be doing whatever we want to do. We will be walking out on site.

Mr Gooding:    Well, when are you going out to site? What are your plans? Because we want to escort you, you know, from a safety perspective.

Mr Gava:    Nah, nah, we’ll be right. We’ll be just fine going out on our own.

Mr Gooding:    Yeah, yeah.

Mr Gava:    Get out of the way Matthew.

[Mr Gooding was standing between Mr Gava and the door to the lunchroom]

Mr Gooding:    [Pointing at two of the officials wearing short-sleeved shirts]

    Well, if your are going to go out on site you’re wearing short sleeves. That’s not acceptable on Lend Lease sites and I suggest you try and find some longer stuff. Look, I hope you respect our rules and policies, because you know safety is important to us.

Unidentified

CFMEU official:    Oh, look, let us be the judge of that.

135    One of the officials wearing short sleeves, probably Mr Kalem, put on a long sleeve jacket but another ignored Mr Gooding, saying “Ah, whatever” before walking out of the lunchroom.

136    The CFMEU officials then walked around the TAFE site but split up into groups of two or three. They spoke to different groups of workers, mainly tradespeople, spending a few minutes talking to each group. Mr Gooding approached Mr Gava and a conversation to the following effect occurred:

Mr Gooding:        How are you going? What have you got?

Mr Gava:    I’ll come [and] see you when I’m done. I found a few things out on site that I am not happy with. I saw some extension cords looped through some steel.

Mr Gooding:    OK. Well, we can fix that.

137    The CFMEU group left the site at about 12:20 pm without Mr Gava approaching Mr Gooding again.

138    The group re-entered the site at about 1:20 pm. Again, they did not wait to be met by a Lend Lease supervisor. Mr Burgess found the group in Zone 4 looking at a scissor lift. Mr Kalem was not wearing long sleeves and Mr Gava was wearing a short sleeved CFMEU polo shirt. Mr Burgess approached the group and said words to the effect:

Mr Burgess:    Mark, again, you’re not even wearing a jacket now. And here’s this other bloke not wearing his. He said that he was going to go and get it.

Mr Gava:    Well, you’re only looking at the minor issues. I’m pointing out to you major issues. We found a couple of leads on site hanging on structural steel and what is Lend Lease doing about that? There are also some housekeeping issues towards the western side of BSI.

Mr Burgess:    We have inspections on a daily basis. We go around and we pick up leads and so on.

Mr Gava:    If there was a full-time shop steward on site all these issues would go away. They would ensure that these workers don’t do these safety breaches.

Mr Burgess:    There [have] been WHS reps which are on site from a lot of companies and they’re, kind of, union picked. The formwork company had a CFMEU member as a WHS rep and wasn’t interested in anything in relation to safety at all. Mark, I won’t mention the company but you know the person.

Mr Gava:    Yes, from Mitcon, but it will be completely different if we had a full-time delegate on site. They would be made to make sure that all of the safety issues on site are addressed, which would make your life a lot easier.

Mr Burgess:    Here is the CFMEU asking for a shop steward on site. You’ve already had these WHS officers on site and they weren’t actually even pushing safety, so what is the difference between that and a shop steward? As you know, no worker will tell on another worker. What are they going to do different?

Mr Gava:    We will make sure they do something different.

139    After a further short discussion on the topic of a CFMEU site shop steward, Mr Gava asked Mr Burgess for a meeting with Mr Gooding in the “top office”.

140    Those present at the meeting were Mr Gooding, Mr Burgess, Mr Gava and the other four CFMEU officials. Mr Gooding enquired as to the identity of these officials but did not record their answers. I am satisfied, however, that these were Mr Kalem, Mr Lomax, Vern and Leo.

141    Mr Gava commenced the discussion by saying words to the effect of:

Look, there’s higher level discussions between the CFMEU and Lend Lease, but they’re not for us to discuss here at this level and they’re being sorted out with people beyond us. The main reason for us down here today is to talk to you about safety.

Later, Mr Gava said words to the effect of:

This site is unsafe. There are issues with leads and housekeeping. There is an exclusion zone that isn’t right. If there was a CFMEU delegate on site, then these problems would be solved.

142    Some of the other CFMEU officials also contributed to the discussion. It is not necessary for present purposes to record their respective contributions.

143    At one point during the meeting, Mr Gooding raised the issue of right of entry notices. He and Mr Gava then had a discussion to the following effect:

Mr Gooding:    So what’s the go with the right of entry notices? Earlier in the day you said, ‘that’s the way it’s going to be from now on’.

Mr Gava:    Yes. We’re not going to be filling out right of entry notices.

Mr Gooding:    What’s going to happen next week? Are you just going to rock up on Thursday at the gate?

Mr Gava:    Oh, we’ll see what happens next week, but yeah.

Mr Gooding:        Well, was that your decision?

Mr Gava:        No, that’s come from the secretary.

144    Mr Gooding was challenged in his cross-examination about the statement from Mr Gava that the decision had come “from the secretary”. He maintained that Mr Gava had used those words and I accept his evidence about that. Mr Burgess gave evidence of Mr Gava making a similar statement in the discussion about right of entry notices not being provided. He said that Mr Gava said “we’ve been instructed to do this by our boss. Whether that’s right or wrong, that’s not our decision”. Again, Mr Burgess was challenged on this part of his evidence but he maintained that Mr Gava had made that statement. I accept his evidence.

145    The meeting continued for about 15-20 minutes and the officials left the site at about 2:15 pm.

146    The content of Mr Gava’s telephone conversation with Mr Gooding at about 8:13 am and his statement later when told by Mr Gooding that he could not go on site, “look, don’t go there, Matt” indicate, in my opinion, an awareness by Mr Gava that his behaviour in entering and remaining on the site and speaking to workers on the site in the morning was improper. The circumstance that Mr Gava twice entered without having previously given Lend Lease a notice of entry adds to the impropriety of his conduct.

147    The declarations sought by the Director with respect to the conduct of Mr Gava and the CFMEU at the TAFE site on 30 October 2013 should be made.

Convention Centre site: 30 October 2013 – findings as to the conduct

148    The Director’s allegations with respect to the conduct at the Convention Centre site on 30 October 2013 relate to the fifth respondent (Mr O’Connor), the sixth respondent (Mr Beattie) and the CFMEU. The Director alleges contraventions of s 500 only.

149    The Director led evidence from two witnesses concerning events at the Convention Centre site: Mr McMahon, the Site Manager, and Mr Hay, a site supervisor. Both were honest witnesses and I consider that their evidence provides a reliable basis for the findings of fact which follow.

150    Both Mr McMahon and Mr Hay were accustomed to CFMEU officials exercising rights of entry. Each said that CFMEU officials had always provided notices of entry in relation to their entries on site before 30 October 2013. Each was aware that no notice had been provided in respect of an entry on 30 October 2013.

151    Mr Hay was alerted at about 8:40 am on 30 October 2013 to the presence of three CFMEU officials in the reception area of the site office. He recognised Mr O’Connor but not the other two. Mr Hay and Mr O’Connor had a conversation to the following effect:

Mr Hay:        Hello.

Mr O’Connor:        Hello.

Mr Hay:        What is the purpose of your visit?

Mr O’Connor:    I’m here to talk with Eddie [McMahon]. These are two delegates from the Melbourne office, Bill Beattie and Mark McNicoll.

152    Both Mr Beattie and Mr McNicoll were wearing clothing with the CFMEU logos and insignia as well as hard hats.

153    Mr McMahon arrived in the reception area at this time and he and Mr O’Connor had a conversation to the following effect:

Mr O’Connor:        Oh, we need to have a chat.

Mr McMahon:        On site or in the office?

Mr O’Connor:        I’ll have chat with you first, Eddie.

154    Mr McMahon then took the officials into a meeting room and Mr Hay returned to his duties. Mr O’Connor introduced Mr Beattie and Mr McNicoll to Mr McMahon. After some initial discussion of an informal and friendly kind, a conversation between Mr McMahon and Mr O’Connor to the following effect then occurred:

Mr O’Connor:    We’re changing the agenda and we want walk the site and talk to members.

Mr McMahon:    Not without 24 hours’ notice. If you give us a notice you can come back tomorrow.

Mr O’Connor:    We won’t be putting a notice in. We will be going onto site anyway.

Mr McMahon:    I have to go speak to someone with higher authority.

Mr O’Connor:    Eddie, I’ve got a job to do and you’ve got a job to do, so we’ll still keep it that we don’t get personal.

155    Mr McMahon then left the meeting room to speak to Mr Shaw, the Construction Manager. At that time, he understood Mr O’Connor’s statements to mean that, even if he maintained his refusal to allow the men to enter the site, they would enter anyway. He wished to avoid any physical confrontation and thought that he had no real choice but to permit the officials to enter the site so that Lend Lease could exercise some control over what occurred.

156    Mr McMahon explained the situation to Mr Shaw who then telephoned Lend Lease’s head office. Mr Shaw then said to Mr McMahon words to the effect “they [Lend Lease] don’t want to cause any conflict, so we’ll escort them through the site”.

157    Mr McMahon returned to the meeting room and a conversation to the following effect ensued:

Mr McMahon:        We’ll one on one walk you through the site.

Mr Beattie:        Good result.

158    Mr McMahon asked Mr Hay and Mr Richardson, another site supervisor, to come with the group on the walk around the site. This was a departure from his usual practice which was to escort CFMEU officials around the site by himself. He considered that Lend Lease should have in place a one on one escort system on 30 October because of the particular circumstances of the entry, being the lack of prior notice, and the fact that there were three officials, two of whom he had not met before.

159    After they had entered the construction area of the site, Mr McMahon and Mr O’Connor had a conversation to the following effect:

Mr McMahon:    Who do you actually want to speak to? What area do you want to go to?

Mr O’Connor:    We’d rather speak to our members, structural trades.

160    Mr Hay had a conversation of a similar kind with Mr Beattie:

Mr Hay:        What’s your purpose for being here?

Mr Beattie:    We want to talk with Lend Lease/Baulderstone members. This is part of a national drive that is focused on Lend Lease employees.

161    As the officials walked around the site, they stopped three or four times to talk to some of their members in different areas of the site. These conversations were short, lasting for some two to three minutes. Mr McMahon heard the officials asking the workers questions to the effect of “how are you travelling? How are you getting on?”.

162    In one area in which work was being carried out by a subcontractor, Samaras, Mr O’Connor asked for permission to enter the excluded work zone. The Samaras supervisor agreed to this request and stopped work in the zone so that it would be safe to enter. The officials had brief conversations with the workers in the exclusion zone, again asking questions to the effect of “how are things going?”.

163    Mr O’Connor told some of the workers they met while walking around the site that the officials would talk to them at the smoko due at 9:30 am. Mr McMahon and Mr Hay agreed to take the officials to the lunch sheds. As they were doing so, a dogman on one of the crane crews told Mr Beattie that he should not be smoking on the site. Mr Beattie was taken aback by this observation, but he did put out his cigarette.

164    As the men entered the lunchroom compound, Mr Hay reminded Mr O’Connor that he could not talk to the workers for any longer than the designated meal break and Mr O’Connor acknowledged that that was so.

165    The CFMEU officials spoke to workers in two different lunchrooms and left the Convention Centre site shortly afterwards, at some time between 10:00 and 10:30 am.

Convention Centre site: 30 October 2013 – consideration

166    The Director’s allegation is that each of Mr O’Connor and Mr Beattie contravened s 500 by entering the Convention Centre site without providing an entry notice and then remaining on the site for approximate one hour and 20 minutes. Mr O’Connor and Mr Beattie deny that their entry into the Convention Centre site was in the exercise or attempted exercise of entry rights under the Act and assert that it was authorised and allowed by Mr McMahon.

167    I reject the first part of this defence. Plainly, Mr O’Connor, Mr Beattie and Mr McNicoll were entering for the purpose of discussions with employees whose industrial interests the CFMEU was entitled to represent. Mr O’Connor told Mr McMahon in the meeting room that the officials wished “to walk the site and talk to members”; Mr Beattie told Mr Hay that the officials wished to “talk with Lend Lease/Baulderstone members ... [as] part of a national drive focused on Lend Lease employees”; and Mr O’Connor told Mr McMahon as they were walking around the site “we would rather speak to our members, structural trades”. The inference that talking to members was in fact the purpose of the officials is confirmed by their conduct: they did speak to workers on the site and again in the lunchrooms.

168    There remains a question, however, as to whether Mr O’Connor and Mr Beattie may have understood that Lend Lease had authorised their entry, even though they had not provided a notice of entry pursuant to s 487. Plainly, Mr McMahon did not consider that he had provided such an authority. I accept his evidence to the effect that, faced with an expression of the officials’ determination to go on site, he felt that he had no real choice but to permit that to occur. He considered that, by escorting the men, he could keep some control over what occurred while they were present on site. His attitude can best be described as one of acquiescence in the face of the expressed determination of the CFMEU officials to proceed on site in any event: cf CFMEU (No 2) at [59]-[60].

169    The respondents’ submission was to the effect that, even if this had been Mr McMahon’s attitude following his discussion with Mr Shaw, the words he had used when he returned to the meeting could have been understood reasonably by the CFMEU officials as a grant of authority to enter the site. Counsel submitted that Mr McMahon’s statement on returning to the meeting room “we’ll one on one walk you through the site” was consistent with, and could have been understood by the CFMEU officials as, a statement that Lend Lease had changed its position, subject to the condition that the men be escorted one on one. That change of position may have been brought about by the pressure which the officials had applied in their conversation with Mr McMahon but it was nevertheless a voluntary decision by Lend Lease.

170    I do not accept that submission. There are a number of indicia to the contrary. Mr O’Connor had made it plain that, irrespective of Lend Lease’s refusal to allow the officials onto the site without having provided notice of entry, they would proceed onto the site in any event. Those words created the circumstance of confrontation, something which Mr O’Connor confirmed with his statement that it was not a matter personal to Mr McMahon.

171    The three CFMEU officials knew that this was so. Their understanding of Mr McMahon’s words on his return is to be assessed in that context. It is pertinent that Mr McMahon did not make any statement to the effect that Lend Lease had “agreed”, “authorised” or “permitted” the entries. Nor did he use any other words indicating that Lend Lease was waiving the requirement for notices of entry. He said only that Lend Lease would “one on one walk you” through the site, thereby conveying that Lend Lease would not confront the officials physically, and was putting in place the means by which it would endeavour to exercise some control of the officials and their conduct during the unlawful entry on which they were determined.

172    I find (after having regard to the Briginshaw principle), that in the circumstances, Mr O’Connor and Mr Beattie knew that Lend Lease was not waiving the requirement for a notice of entry, nor authorising their entry, but was merely seeking to exercise the same control available to it had the entry been made lawfully. Mr Beattie’s statement “good result” is an indication that he understood that that was so.

173    This conclusion is supported by the failure of Mr O’Connor and Mr Beattie to give evidence in the trial.

174    Mr O’Connor and Mr Beattie did act in an improper manner. They entered, and insisted on remaining on the site, even though they had not provided notices of entry. They spoke to workers as they walked around the site, and not only in the lunchroom or other places agreed by Lend Lease, and not only during the workers’ smokos.

175    In these circumstances, the Director has established the contraventions of s 500 by Mr O’Connor, Mr Beattie and the CFMEU and declarations to that effect will be made.

Adelaide Oval site

176    The Director alleges contraventions of the FW Act at the Adelaide Oval site on four separate days: 30 and 31 October 2013 and 12 and 13 November 2013. It is convenient to consider these alleged contraventions separately.

Adelaide Oval site: 30 October 2013 – findings as to the conduct

177    On 30 October 2013, six CFMEU officials entered the Adelaide Oval site. They were the seventh respondent (Mr McDermott), the eighth respondent (Mr Long), the ninth respondent (Mr Harrison), the tenth respondent (Mr Roberts), the eleventh respondent (Mr Stephenson) and the twelfth respondent (Mr Kirner). None of these officials had given forewarning of their intention to visit the site that day, let alone notice of entry pursuant to s 487. This was unusual because, before 30 October 2013, CFMEU officials had always provided notices of entry at least 24 hours in advance of their proposed visits.

178    The Director alleges that each of the respondents was exercising, or seeking to exercise, the s 484 right and that, in doing so, each acted in an improper manner.

179    The Director led evidence from two witnesses as to the events on 30 October. These were Mr Ising, the Site Operations Manager and Mr Jackson, a Site Manager. Both are Lend Lease employees.

180    As with the other Lend Lease witnesses, I considered Mr Ising and Mr Jackson to give honest and credible evidence. I regard their evidence as a reliable basis for the findings of fact which follow.

181    Mr Ising saw the CFMEU officials enter through Gate 6 and go to the site office. He recognised Mr McDermott, Mr Roberts, Mr Stephenson and Mr Kirner as they had attended previously. All the officials were wearing clothing and hard hats with CFMEU logos and insignia. Each of the officials completed the sign-in register (but none provided a contact telephone number).

182    Mr Ising approached the group and spoke to them outside the site office. Mr Long and Mr Harrison then introduced themselves to him. Mr Long was from Melbourne and Mr Harrison from Canberra. Mr Ising then had a conversation with Mr McDermott to the following effect:

Mr Ising:        What is the purpose of this visit?

Mr McDermott:        We are taking a look around your site.

Mr Ising:        Neither you or any of the other visitors have an entry notice.

183    While Mr Ising was having this conversation with Mr McDermott, the other officials were standing in a group nearby within “a couple of metres”. I am satisfied that each heard the conversation between Mr Ising and Mr McDermott as each immediately started walking away from Mr Ising and toward the eastern stand. I infer that they were responding to Mr Ising’s statement by this conduct.

184    Mr Ising followed the officials. He observed them speaking briefly to workers as they walked along. Mr Kirner told Mr Ising “I want to catch up with the seating contractor”. This was Sebel.

185    On the eastern stand level one concourse, some of the CFMEU officials spoke to some workers. Mr McDermott and possibly some of the other officials said to the workers words to the effect of “there’s going to be a meeting at 9.30”.

186    The CFMEU officials then split in to smaller groups. Mr McDermott and Mr Long walked to the plaza level and transport corridor. Mr Jackson followed them. There were a number of workers in these areas and Mr McDermott and Mr Long stopped to speak briefly to several. Mr Roberts went to the basement. Mr Ising located him there and began to accompany him. The remaining officials were unescorted and the evidence did not disclose their movements.

187    In the basement Mr Ising had a conversation with Mr Roberts to the following effect:

Mr Ising:        What is the purpose of this visit?

Mr Roberts:    This is the way of the world until your managers talk with our managers.

188    Mr Ising continued to walk near to Mr Roberts and observed him speak briefly with a number of workers.

189    Workers began gathering for a meeting with the CFMEU officials outside the basement lunchrooms. The meeting commenced at approximately 9:40 am, by which time the other officials had also arrived at the lunchroom.

190    On 30 October 2013, there were approximately 500-600 workers on site, and of these, 100-150 attended the meeting in the basement lunchroom area. Some of these, 6 to 8, were employees of Lend Lease and some were employees of contractors carrying out work on the site. The meeting continued until about 10:00 am.

191    Mr Roberts and Mr McDermott then approached Mr Ising and Mr Jackson. The other officials were nearby as they spoke. Mr Roberts made a statement to the following effect to Mr Jackson and Mr Ising:

The workers have raised some issues relating to dust on site, water coolers and toilet locations. You’ve got two hours to address these issues. A further site meeting will be held at 12.30 on site. We’re remaining on site until then.

Neither Mr McDermott nor Mr Roberts gave any further details of these issues and did not state what they wanted done concerning them.

192    While the CFMEU officials were waiting for the 12:30 meeting, they stayed in the area near to the lunchroom or walked around the surrounding area. At one stage while the officials and Mr Ising and Mr Jackson were standing in a group, Mr Roberts said, in relation to not having provided notices of entry, “this is the new way of the world”. He also described rights of entry as a “farce”.

193    Mr Ising made arrangements for additional water coolers and toilets to be brought onto the site. He said, and I accept, that he believed at the time that Lend Lease had more than enough water coolers and toilets for the number of workers on the site but that he made the arrangements in order to avoid providing a reason for a confrontation.

194    At about 12:10 pm, Mr McDermott telephoned Mr Ising, and they had a conversation to the following effect:

Mr McDermott:    We want to catch up with you before the 12.30 meeting regarding the items that Darren [Roberts] raised with you.

Mr Ising:    I’ll meet you on the eastern concourse level 1.

195    Mr Ising went straight to the eastern concourse and spoke to Mr Roberts:

Mr Ising:        Where is Mick [McDermott]?

Mr Roberts:        I don’t know.

Mr Ising:    Mick called me to catch up prior to the meeting. I’ll speak to all of you together. I’m not going to tell one bloke a story and then have to tell the next bloke the same story.

196    What then occurred was described by Mr Ising as follows:

[48]    Mr Roberts then became quite aggressive and acted threateningly towards me. He was almost screaming at me and was being loud and obnoxious. He was putting his face right up close to mine. I felt threatened by how loud and close he was.

[49]    While he was doing this, he kept repeating words to the effect of “You don't care about workers.”

[50]    At one point, I said to him words to the effect of “Calm down, I want to have a civil conversation”, but Mr Roberts continued the behaviour.

[51]    I then said to Mr Roberts words to the effect of “The only place this conversation is going is down a bullying and harassment line.”

[52]    Mr Roberts then moved about ten metres away from me and then said “I just want to smash someone right now.”

[53]    Simon [Jackson] and some construction workers were within two to fíve metres of me during my conversation with Mr Roberts.

197    Mr Roberts admitted in the Defence that Mr Ising may have perceived him as being aggressive and that Mr Ising had told him to “calm down” or words to similar effect.

198    Mr McDermott and Mr Long arrived on the concourse at about 12:20 pm. Mr Ising then spoke to Mr McDermott, Mr Long and Mr Roberts, saying words to the following effect:

Mr Ising:    Lend Lease is prepared to double up drink fountains at the current locations in the east stand and to add a drink fountain in the middle of the east stand level 1. In relation to the dust, currently there’s a street sweeper being used and this gets attended to on an as need basis. Lend Lease is also prepared to add a further two single toilets to level 1 of the east stand. There are already some in the basement.

Mr Roberts:    We’ll address the workers at 12.30 and advise.

199    In fact, the meeting between the workers and the CFMEU officials commenced at about 1:00 pm outside the lunchroom. Mr Roberts and Mr McDermott spoke to the workers during the meeting. It concluded at about 1:15 pm and the workers returned to work.

200    All of the officials other than Mr Kirner were at the meeting. After the meeting had concluded, a conversation to the following effect took place:

Mr Ising:        Where is our sixth man [referring to Mr Kirner]?

Unidentified official:    He’s had to piss off to some other duties.

Mr McDermott:    We want you to make the improvements that you suggested earlier.

Mr Roberts:    Baulderstone [Lend Lease] must walk around site with blinkers on to not see the issues raised ... Why [are] petrol and diesel forklifts operating in the basement? There’s not enough ventilation down there.

Mr McDermott:    These items would not be an issue if there was a walking steward on site. The workers could go to him direct rather than officials dealing with this.

Mr Ising:    There is currently a site delegate on site who was previously voted in by the workers.

Mr McDermott:    You still need a walking steward. The CFMEU is pushing for walking stewards at all sites. Here, Tonsley and the Convention Centre. H&Y [Hansen Yuncken] have stewards at the new Royal Adelaide Hospital project and the 50 Flinders Street projects.

201    Mr Ising said, and I accept, that Mr Roberts was aggressive, loud and rude when he raised the issue about the forklifts in the basement. Mr Ising said that the issues raised were baseless as the forklifts operated on gas and not on petrol or diesel.

202    Mr Jackson also deposed to the attitude of the CFMEU officials while on site as follows:

While they were on site, the officials were quite aggressive and direct in their approach towards Lend Lease’s management staff. It was not a comfortable environment. The officials were being arrogant, high-handed and dismissive and disregarded instructions given by the Lend Lease management. They did not seem to care that they were on site illegally.

203    As can be seen, this passage of evidence was conclusionary in nature and did not particularise the CMFEU officials who were said to have acted in the ways described. Accordingly, I consider it appropriate to regard this as evidence of Mr Jackson’s perception of the attitude of the CFMEU officials without attributing his description to any particular official.

204    The CFMEU officials left the site at approximately 1:35 pm.

Adelaide Oval site: 30 October 2013 – the contraventions

Mr McDermott, Mr Roberts and Mr Stephenson

205    Each of Mr McDermott, Mr Roberts and Mr Stephenson admit their contraventions of s 500 at the Adelaide Oval on 30 October, and the CFMEU admits its contraventions constituted by their conduct. These respondents admitted that they had entered the Adelaide Oval for the s 484 purpose, that they had done so without providing a notice of entry, and that they had held discussions with workers while on the site.

206    I observe that the admissions of these respondents, particularly those of Mr Roberts, did not extend to all the aspects of their conduct to which I have referred in the findings above. The evidence of Mr Ising and Mr Jackson justifies those findings, even in the absence of formal admissions.

Mr Kirner

207    Mr Long, Mr Harrison and Mr Kirner deny that they contravened s 500 on 30 October 2013. They deny that they attended for the s 484 purpose and deny that they spoke at, or in any way participated actively in, either of the two meetings.

208    Mr Kirner pleaded that his purpose in entering the site on 30 October was “to look for risks to the health and safety of workers on site and to take photographs of [such risks]” and that is what he did. He did not adduce any evidence to support those claims, and there is no other evidence to support them.

209    The evidence does disclose however, that Mr Kirner may have had an actual purpose which was not the s 484 purpose, namely, a purpose of holding discussions with Sebel, the seating subcontractor. That is what he told Mr Ising, shortly after the group had been challenged for not having notice of entry, as to his intention. It may also be pertinent in this respect that Mr Kirner left the site before the other CFMEU officials, as he had gone by the time of the second meeting. This would be consistent with him having been present on site for a particular, and limited, purpose only.

210    There are indicia to the contrary. Mr Kirner entered as part of a group, some of whom at least did have the purpose of holding discussions with workers. Contrary to the submission of counsel for the respondents, Mr Ising’s evidence does indicate that Mr Kirner was present at the 9:40 meeting with the workers. That evidence is consistent with Mr Kirner having entered for the purpose of discussions with workers at the meeting, even if he had wished first to speak to Sebel. It may also be consistent with him having attended the meeting as a mere incident to the principal purpose for his entry to the site that day.

211    Thus, there are inferences pointing in each direction. In the circumstances, I do not have the requisite degree of persuasion that Mr Kirner was exercising an entitlement under s 484, that is, that he had entered and remained on the Adelaide Oval site for the purpose of holding discussions with those whom the CFMEU represented, or could represent.

212    Accordingly, I am not satisfied that the contravention of s 500 by Mr Kirner on 30 October 2013 is established. That claim will be dismissed.

Mr Long and Mr Harrison

213    Each of Mr Long and Mr Harrison denied they were seeking to exercise rights in accordance with s 484 of the FW Act at Adelaide Oval on 30 October 2013, and denied that they acted in an improper manner. In particular, each denied that he spoke at, or in any other way participated actively in, either of the two meetings with the workers near the lunchrooms that day.

214    Counsel for the respondents referred to Mr McDermott’s statement to Mr Ising “we are taking a look around the site” and submitted that this reflected the purpose of Mr Long and Mr Harrison. I reject that submission. The words “taking a look around” appear to be in the nature of a euphemism. Even if the notion of “taking a look around” is understood literally as a statement of the purpose of Mr Long and Mr Harrison, it is belied by their conduct. Mr Long and Mr Harrison entered with, and accompanied, the CFMEU officials who were entering to have discussions with workers; they were wearing clothing and hard hats with the CFMEU logos and insignia; they entered during their own working hours; and they did, very soon after entering, speak to workers. Mr Long and Mr Harrison could not have thought that they had any entitlement to enter the site simply to look around. They had no more entitlement to do so than any other member of the public. Their behaviour was not that of persons entering out of curiosity.

215    I refer to what I said earlier concerning the meaning of the word “discussions” in s 484. I am satisfied that each of Mr Long and Mr Harrison did, very shortly after entry, engage in discussions of the requisite kind. This too is revelatory of their true purpose in entering. It is pertinent that Mr Long accompanied Mr McDermott both before and after the 9:30 meeting and Mr McDermott’s purpose was to have discussions with workers.

216    Each of Mr Long and Mr Harrison attended both the 9:30 and 12:30 lunchtime meetings and they, like the other organisers, remained in the vicinity of the lunchrooms between the two meetings. That is strongly suggestive that they had no purpose in attending the site other than participating in those two meetings.

217    Further again, Mr Ising’s evidence was that all of the CFMEU officials (other than Mr Kirner) stood in front of the workers, and I infer facing them, at the 12:30 meeting. That too is indicative of them having engaged in discussions with the workers even if they did not themselves speak. That is especially so given that they had waited specifically for the 12:30 meeting and there being no other apparent purpose for their attendance.

218    Counsel made the same submission in respect of Mr Long and Mr Harrison as he had made in respect of Mr Kalem and Mr Lomax at the Flinders University site. That is, that the Director had not established that the workers to whom Mr Long and Mr Kalem spoke were employees at all, let alone employees whose industrial interests the CFMEU was entitled to represent. This submission fails for the same reasons as it did in respect of Mr Kalem and Mr Lomax. In fact, given the greater number of workers on the Adelaide Oval site, the submission is even less plausible. It is fanciful to suppose that the CFMEU officials went to the Adelaide Oval site and spent their entire morning there in order to hold discussions with workers for whom the CFMEU had no rights of representation.

219    Accordingly, I am satisfied that the Director has established the contraventions of s 500 by Mr Long and Mr Harrison and, in consequence, by the CFMEU itself. There will be declarations accordingly.

Adelaide Oval site: 31 October 2013

220    The Director alleges contraventions of s 500 by Mr Beattie, Mr McDermott and Mr Long at the Adelaide Oval site on 31 October 2013. By an amendment to the Defence filed on the first day of trial, Mr McDermott admitted his contravention, and the CFMEU admitted its contravention constituted by Mr McDermott’s admitted conduct. However, Mr McDermott and the CFMEU did not admit all aspects of the conduct alleged by the Director.

221    The witness who gave evidence concerning the events on this day was Mr Jackson. As previously indicated, he was a reliable witness. I accept his evidence and, on that basis, and on the basis of the pleaded admissions, make the following findings of fact.

222    Mr Beattie, Mr McDermott and Mr Long entered the Adelaide Oval site at about 11:00 am on 31 October 2013 and signed in the visitors’ book (but did not provide telephone contact details). Mr Jackson was alerted to their presence shortly afterwards. He left the work on which he was then engaged and went to meet the three officials. It took him about 15 minutes to find them as they had not remained at the site office. Instead, the three officials were near the northern entry stairs of the eastern stand.

223    In his affidavit evidence, Mr Jackson said that he approached the three officials and asked each of them individually “do you have any entry notice?” to which each answered “No”. Mr Jackson then said to them as a group “you are all not permitted to enter the site” to which Mr McDermott replied by saying “Yes”. Mr Jackson could not recall whether either Mr Beattie or Mr Long had responded.

224    However, in his cross-examination Mr Jackson said that his question about the entry notice was directed to the group. He also said that he could not now recall whether any of the officials, other than Mr McDermott, had answered the question. It may well be that Mr Jackson’s affidavit evidence is more reliable in this respect than his oral evidence. His affidavit was made at a time when the events of 31 October 2013 are likely to have been fresher in his memory (the affidavit was made on 15 September 2014). Further, Mr Jackson had been asked to recall the events of the day in relation to evidence he gave in the Fair Work Commission concerning those events in December 2013. Despite these matters, I consider it more likely, and so find, that Mr Jackson addressed a single question to the group by speaking to Mr McDermott, the only one of the officials whom he knew.

225    After the conversation described above, the three CFMEU officials continued to walk down the path into the eastern stand level one. Mr Jackson shadowed them. He and Mr McDermott had the following conversation:

Mr McDermott:    We’re here to follow up on yesterday’s issues. Have the improvements been made?

Mr Jackson:    Yes they have.

226    Mr McDermott then walked away from the group and proceeded further into the site, unescorted by Mr Jackson. Mr Long and Mr Beattie remained at level one. Mr Jackson telephoned Mr McDermott on his mobile phone at 11:46 am and a conversation to the following effect occurred:

Mr Jackson:        You have to return to the group.

Mr McDermott:        I am going up to the level 5 east stand.

227    Mr McDermott did not comply with Mr Jackson’s direction. He did not return to the group until about 12:20 pm.

228    In the meantime, Mr Jackson, Mr Long and Mr Beattie sat in the stadium seats on the concourse of the eastern stand and engaged in conversation of an informal kind. At one stage, Mr Jackson acceded to the request of Mr Long and Mr Beattie that they be shown the old Adelaide Oval scoreboard.

229    On Mr McDermott’s return, the three CFMEU officials went to the lunchroom area in the eastern stand basement where a group of workers were congregating for their lunch break. Mr Jackson accompanied them. The three officials then held a meeting with the workers for about 10-15 minutes, but it was only Mr McDermott who addressed the meeting. At the end of the meeting Mr McDermott went to Mr Jackson and said words to the effect of “we want more eye-washing stations at this site”. The three officials then left the site via Gate 6.

230    Mr Jackson was satisfied that Lend Lease already had more than enough eye-washing stations but did arrange for additional stations to be placed around the site in order to avoid a reason for further industrial issues.

231    Counsel for the respondents submitted that the Director had not established that Mr Beattie and Mr Long had entered the Adelaide Oval site on 31 October 2013 for the purpose of holding discussions with workers to whom s 484 refers. He relied on the same matters which Mr Long and Mr Harrison had relied upon in relation to their entry the previous day, and upon which Mr Kalem and Mr Lomax had relied in respect of their entry onto the Flinders University site. In addition, counsel emphasised that Mr Beattie and Mr Long had spent much of their time on the site that day simply sitting and waiting for Mr McDermott and that neither had addressed the meeting at 12:30 pm.

232    My conclusions for rejecting this submission are similar to those which I gave in respect of the entry of Mr Long and Mr Harrison on 30 October. It is true that the entry of Mr Beattie and Mr Long has the additional feature that, for much of their period on the site, they did little more than sit waiting for Mr McDermott and inspected, apparently in the manner of tourists, the old Adelaide Oval scoreboard. However, they were accompanying Mr Dermott, who was entering pursuant to s 484. And they did attend the 12:30 meeting with workers. To my mind, it is immaterial in these circumstances that they themselves did not speak at that meeting. For the reasons given earlier, I consider that persons may enter for the purpose of holding discussions with workers of the defined kind when they enter as a group, even if they do not intend themselves to be speakers at the meeting.

233    For these reasons, I consider that the Director has established the contraventions of s 500 at the Adelaide Oval site on 31 October 2013 by Mr Beattie and Mr Long and, in consequence, by the CFMEU. There will be declarations to that effect.

Adelaide Oval site: 12 November 2013

234    The Director’s allegations with respect to the Adelaide Oval site on 12 November 2013 concerned Mr McDermott, Mr Stephenson and the CFMEU.

235    Mr Stephenson admits his contravention of s 500 on that day, and the CFMEU admits its contravention constituted by the admitted conduct of Mr Stephenson. I note however, that Mr Stephenson and the CFMEU did not admit all the aspects of Mr Stephenson’s conduct upon which the Director relied.

236    Mr McDermott pleaded that he did not know and could not admit the contravention of s 500 alleged against him.

237    The Director’s pleading included a claim that Mr McDermott had also been involved in Mr Stephenson’s contravention and so was liable as an accessory pursuant to s 550 of the FW Act in respect of that conduct. However, this claim was not mentioned in either the written or oral opening submissions of counsel for the Director, nor in counsel’s final submissions. In those circumstances, it appeared to have been tacitly abandoned and I do not address it in these reasons.

238    Mr Jackson was the only witness to give evidence regarding the events on 12 November 2013. Again, I regard his evidence as a reliable basis for the findings of fact.

239    Mr Jackson was alerted to the presence of Mr McDermott and Mr Stephenson at about 10:20 am. They had completed entries in the visitors’ book (but, unlike Mr Stephenson, Mr McDermott did not provide his contact number).

240    Mr Jackson located the two officials on the gravel path after they had moved about 30-40 m from the site office. A conversation to the following effect occurred:

Mr Jackson:        Have you got a right of entry notice?

Both:            No.

Mr Jackson:        Can I please see your right of entry permit?

[Mr Stephenson produced his permit.]

Mr McDermott:        No, you’ve seen it before.

Mr Jackson:        You have no right to be on site. Please leave the site.

Mr McDermott:        This is being dealt with higher up the line.

[Mr McDermott and Mr Stephenson started to walk off.]

Mr Jackson:        You have no right to be here, please leave the site.

241    Both Mr McDermott and Mr Stephenson ignored Mr Jackson and went to the lunchroom area in the eastern stand. Mr Stephenson spoke to some employees of Laser Linings, a subcontractor working on the site. Mr McDermott put up various pieces of union literature on the walls and tables in two different lunchrooms.

242    Mr McDermott and Mr Jackson then had a conversation concerning the retrieval of cricket balls during the cricket match which was to commence on the following day. In the previous (2012-2013 summer), the CFMEU had raised the risk of cricket balls hitting workers. In light of those concerns, the South Australian Cricket Association (SACA) had engaged ball retrievers to sit at locations around the boundary during cricket games. Their principal role was to retrieve balls that went over the boundary. Lend Lease did, at SACA’s request, provide it with the names of some labour hire companies who could provide ball retrievers who were certified to work on construction sites, and SACA had engaged such people. In addition, Lend Lease organised for its employees to work in groups during cricket matches, with one member of each group designated to look out for any cricket balls which may be hit in the group’s direction.

243    The conversation between Mr McDermott and Mr Jackson concerning ball retrieval on 31 October 2013 was as follows:

Mr McDermott:    What is in place for the cricket starting tomorrow regarding cricket balls?

Mr Jackson:    The same protocols as last year.

244    Mr McDermott and Mr Jackson then went back to the lunchroom where Mr Stephenson was still talking to the employees of Laser Linings. Mr McDermott said to the group words to the effect of “I’ll be back here tomorrow using a WHS permit to follow up on the cricket balls over the fence”.

245    Mr Jackson considered, with some justification, that the issue of stray cricket balls was not one of concern to the employees of Laser Linings, as their work was being carried out internally, or in locations which it was improbable that any cricket ball could reach.

246    Mr McDermott and Mr Stephenson left the site at about 11:00 am, signing out appropriately in the visitors’ register.

247    Counsel’s submissions indicated that the basis of Mr McDermott’s defence to this alleged contravention was his denial that he had entered the Adelaide Oval site on 12 November 2013 for the purpose of holding discussions with workers. There were three aspects to the submission: that the Court should not be satisfied that Mr McDermott had spoken at the meeting with workers in the lunchroom; that even if he had, it had not been established that those workers were employees; and that even if they were, it had not been established that they were employees whose industrial interests the CFMEU was entitled to represent.

248    I accept Mr Jackson’s evidence that the persons to whom Mr Stephenson was speaking in the lunchroom area were employees of Laser Linings. Mr Jackson’s characterisation of those workers as employees of Laser Linings was not challenged in the cross-examination. Mr McDermott spoke to these same persons. There is no evidence contradicting Mr Jackson’s evidence that Mr McDermott did speak to the workers in the lunchroom, saying that he would return on the following day to follow up on the issue concerning cricket balls. The work being carried out by the Laser Linings’ employees suggests, of its nature, that it is work within the eligibility rule of the CFMEU. As noted earlier, Laser Linings were engaged in wall and ceiling fixings. There is no reason to doubt that was work within the constitutional coverage of the CFMEU.

249    It is possible that Mr McDermott’s principal purpose on 12 November 2013 was simply to check that safety precautions with respect to cricket balls would be in force during the forthcoming cricket match. It may also be the case that he spoke to the group of Laser Linings’ employees only incidentally to the principal purpose of his visit, taking advantage of the opportunity to do so arising from Mr Stephenson’s meeting with them.

250    However, I infer that at least one of Mr McDermott’s purposes was to hold discussions with the employees. If his concern had been only to check on safety precautions with respect to cricket balls, he could have done so by a simple telephone call to Mr Jackson. I infer that part of his reasons for attending and speaking to the workers was to demonstrate to the workers his, and the CFMEU’s, concern for their welfare.

251    The inferences in this respect can be drawn more confidently having regard to Mr McDermott’s failure to give evidence in the trial.

252    Accordingly, I am satisfied, having due regard to the Briginshaw principle, that Mr McDermott’s contravention of s 500 at the Adelaide Oval site on 12 November 2013 has been established.

253    There will be declarations with respect to the contraventions by Mr Stephenson, Mr McDermott and the CFMEU.

Adelaide Oval site: 13 November 2013

254    The Director alleges contraventions by Mr McDermott and the CFMEU of s 499 of the FW Act at the Adelaide Oval site on 13 November 2013. The Director’s pleading contains, in addition, an allegation that Mr McDermott and the CFMEU contravened s 500 at the same time. However, it was apparent that the conduct said to constitute each contravention was the same and, during the final submissions, the Director indicated that he did not pursue the alleged contravention of s 500.

255    Section 499 of the FW Act provides:

499 Occupational health and safety requirements

A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.

256    The evidence shows that, on 13 November 2013, Mr McDermott was purporting to exercise a right of entry under s 117 of the WHS Act. Section 117 provides (relevantly):

117 Entry to inquire into suspected contraventions

(1)    A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.

(2)    The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.

As can be seen s 117 permits a permit holder to enter a workplace for the purpose of enquiring into a suspected contravention of the WHS Act which relates to or affects a relevant worker. A “relevant worker” is defined in s 116 of the WHS Act to mean a worker who is a member, or eligible to be a member, of the relevant union, whose industrial interests the union is entitled to represent, and who works at that workplace.

257    Again, Mr Jackson was the only witness to give evidence regarding the events on 13 November 2013 at the Adelaide Oval site. I make the following findings on the basis of his evidence.

258    Mr McDermott telephoned Mr Jackson shortly after 9:00 am and a conversation to the following effect occurred:

Mr McDermott:    I’m on my way to the site now. I’m going to be coming on to site today.

Mr Jackson:    No worries, just make sure that you have your entry notice.

259    Mr Jackson then went to the site office and met Mr McDermott, who had signed the visitors’ book. Mr McDermott handed him a notice asserting an entitlement to enter under s 117 of the WHS Act. In the space in the notice for the identification of the suspected contravention of the WHS Act, Mr McDermott entered:

Inspect site for workers safety whilst cricket match is being played.

It is doubtful that that was a statement of a suspected contravention of the WHS Act for the purposes of s 117, but nothing turns on that presently. That is because it was common ground in the trial that Mr McDermott was exercising rights under s 117.

260    Mr Jackson accompanied Mr McDermott from the site office to the north entry stairs, up to the eastern stand plaza level and then to the eastern stand concourse. At that concourse, Mr McDermott spoke with some of the workers of Poly Tech, a subcontractor working on the site. The conversation included the following:

Mr McDermott:    Do you have any concerns with the cricket and the cricket balls?

Poly Tech worker:    No, we’re working in a group of three with a spotter.

Mr Jackson pointed out to Mr McDermott the ball retrievers who were then present at the Adelaide Oval.

261    Mr Jackson and Mr McDermott then moved to another work group. Mr McDermott spoke to workers from another subcontractor on site, McMahon Services. The conversation between Mr McDermott and those workers included the following:

Mr McDermott:    Do you have any concerns with the cricket and the cricket balls?

McMahon worker:    No, we’re working in a group of three with a spotter.

McMahon worker:    There’s no difference to a cricket ball coming over the fence in a work environment than there is as a spectator watching the cricket.

262    Mr McDermott and Mr Jackson then spoke to a group of workers from Piotto, a concreting contractor. This group was working at the southern end of the ground. Mr McDermott’s conversation with those workers included:

Mr McDermott:    Do you have any concerns with the cricket and the cricket balls?

Piotto worker:    We’ve got no issues. We’re working behind a temporary site- screen.

Mr Jackson said, and I accept, that this group was working at least 15 m from the southern boundary to the oval and behind the site screen which was approximately six metres tall. They also had a spotter working in the group.

263    Mr McDermott and Mr Jackson then moved to the central transport corridor, where Mr McDermott approached one of the ball retrievers. As he did so, he and Mr Jackson had an exchange about the facilities available to the ball retrievers:

Mr McDermott:    Why don’t you have a chair, or shade, or drinking water for these guys?

Mr Jackson:    They’re engaged by SACA.

264    Mr McDermott then walked towards another ball retriever and, in the process, lifted some red bunting so as to walk underneath it. He thereby entered an area clearly marked as an exclusion zone because work was being performed overhead. The fact that it was an exclusion zone was indicated by the red bunting and by signs around the area stating “Danger Exclusion Zone”. To arrange access to this zone, please contact [name, number]”. Mr McDermott called to the ball retriever, asking him to come to him in the exclusion zone and the ball retriever commenced to comply. However, Mr Jackson yelled to Mr McDermott “get out”. At the same time, other workers on the site were yelling and gesturing to Mr McDermott to get out of the exclusion zone. This is because structural steel work was being carried out overhead and there was a risk of falling items.

265    Mr McDermott and the ball retriever left the exclusion zone immediately. Mr McDermott spoke to that person for about five minutes in an adjacent area. Mr McDermott then returned to Mr Jackson telling him that he was going to telephone the employer of the ball retrievers, to speak about issues relating to water, shade and chairs. He made that call in Mr Jackson’s presence. All in all that took about 15-18 minutes.

266    Mr McDermott and Mr Jackson returned to the northern pedestrian access point and Mr McDermott left the site at approximately 11:08 am.

267    Mr McDermott returned to the Adelaide Oval site that night at about 7:30 pm. It is not necessary to recount the events which occurred at that time as the Director did not rely upon them for the contravention of s 499 which he alleged.

268    The Director alleged that the “reasonable request” for the purposes of s 499 with which Mr McDermott failed to comply was that which could be implied from the bunting and the sign indicating “Danger Exclusion Zone”. He alleged that Mr McDermott failed to comply with that request by lifting the bunting and walking into the zone.

269    The focus of the submission of counsel for the respondents was the proposition that, despite Mr Jackson’s evidence, overhead work was not in fact being carried out at the time Mr McDermott entered the exclusion zone. However, there is no evidence suggesting that Mr Jackson is wrong about that. I find that overhead work was being carried out at the time. It is why both he and other workers yelled at Mr McDermott to leave the area.

270    I accept that the sign and the bunting constituted an implied request, and that that request was reasonable. Mr McDermott failed to comply with that request by his conduct in entering the exclusion zone. It is unfortunate that he also sought to encourage one of the ball retrievers to enter the same area.

271    There will be a declaration as to the contraventions of both Mr McDermott and the CFMEU of s 499 of the FW Act on 13 November 2013.

Summary

272    I have found all of the contraventions of the FW Act alleged by the Director to be established, other than the alleged contraventions of s 346 at the Flinders University site on 30 October 2013, the alleged contravention of Mr Kirner at the Adelaide Oval site on the same day and the tacitly abandoned accessorial contravention of Mr McDermott at the Adelaide Oval site on 12 November 2013. The Director is to file and serve minutes of the declarations to be made to give effect to these findings. I will hear from the parties as to those minutes, as to the imposition of penalties and as to any consequential matters.

Associate:

Dated:    20 November 2015

Schedule

No: SAD300/2014

Respondents:

Second Respondent:        MARK GAVA

Third Respondent:        MUHAMMED KALEM

Fourth Respondent:        JOHN LOMAX

Fifth Respondent:        JAMES O’CONNOR

Sixth Respondent:        BILL BEATTIE

Seventh Respondent:        MICHAEL MCDERMOTT

Eighth Respondent:        STEPHEN LONG

Ninth Respondent:        BRETT HARRISON

Tenth Respondent:        DARREN ROBERTS

Eleventh Respondent:        LUKE STEPHENSON

Twelfth Respondent:        DAVID KIRNER