FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) [2018] FCA 122

ORDERS

THE COURT ORDERS THAT:

1.    The further hearing of the application be listed at 10.15 am on 26 March 2018.

2.    On or before 9 March 2018 the applicant file and serve any affidavits and an outline of his written submissions relating to penalties and any other relief sought.

3.    On or before 22 March 2018 the respondents file and serve any affidavits and an outline of their written submissions in response to those of the applicant.

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

REASONS FOR JUDGMENT

TRACEY J:

THE Nature of the application

1    By an originating application and a statement of claim, filed on 3 March 2016, the applicant, the then-Director of the Fair Work Building Industry Inspectorate (“the Director”), sought declarations that the respondents had breached ss 497 and 500 of the Fair Work Act 2009 (Cth) (“the FW Act”). The Director also sought the imposition of pecuniary penalties against each respondent pursuant to s 546 of the FW Act and orders that the second and third respondents make payment of those penalties personally and not accept reimbursement by the first respondent, the Construction, Forestry, Mining and Energy Union (“the CFMEU”) or any other person. Minor amendments were made to the pleadings by way of an amended originating application and an amended statement of claim filed on 22 June 2016. A further amended statement of claim (“FASOC”) (to which later reference will be made) was filed on 2 November 2016.

2    The site of the alleged contraventions was the Bendigo Theatre Project located on the grounds of the Bendigo Senior Secondary College (“the site”). Contract Control Services Pty Ltd (“CCS”) was the head contractor for the Bendigo Theatre Project.

3    The contraventions were said to have arisen out of the conduct of two of the respondents who were officials, officers and employees of the CFMEU. The second respondent, Mr Nigel Davies, was alleged to have committed four contraventions of s 500 of FW Act on 22 July 2014 by acting in an improper manner when exercising, or seeking to exercise, a right in accordance with Part 3-4 of the FW Act, namely a State or Territory occupational health and safety (“OHS”) right. In the alternative, a single contravention of s 500 was pleaded constituted by the totality of the alleged conduct. Mr Davies was further alleged to have contravened s 497 on 29 July 2014 by refusing a request to produce his right of entry permit and s 500 by acting in an improper manner when exercising, or seeking to exercise, a State or Territory OHS right. The Commissioner pleaded, in the alternative, that all of Mr Davies’ conduct on 29 July 2014 breached s 500.

4    The third respondent, Mr Alex Tadic, was said to have committed a single contravention of s 500 of the FW Act on 1 August 2014 by acting in an improper manner when exercising, or seeking to exercise, a State or Territory OHS right.

5    The Director claimed that the CFMEU had also contravened ss 497 and 500 of the FW Act, relying on s 793 of the FW Act. In the FASOC, filed on 2 November 2016, the CFMEU’s liability was pleaded on the further or alternative basis that it should be taken to have contravened s 500 by the operation of s 550(1)(c) of the FW Act as a person “knowingly concerned in” the contravention. Liability was also said to arise on the basis of the CFMEU’s vicariously liability at common law for the acts of Messrs Davies and Tadic which constituted the alleged contraventions of s 500.

6    From December 2016 the application was advanced by the Australian Building Construction Commissioner (“the Commissioner”): see clause 19 of Schedule 2 to the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth). On 5 December 2016 an order was made substituting the Commissioner as the named applicant.

Procedural history    

7    The respondents filed a defence on 22 April 2016, in which all of the alleged contraventions were denied.

8    An amended originating application and statement of claim were filed by the applicant on 22 June 2016. Although minor amendments were made, the substance of the alleged contraventions did not change. In response, the respondents filed an amended defence on 1 July 2016, which maintained the denials of the alleged contraventions.

9    As mentioned, the FASOC was filed on 2 November 2016, which sought to expand the bases upon which the CFMEU was said to be liable for the impugned conduct of Messrs Davies and Tadic which allegedly contravened s 500. The respondents, by their further amended defence filed on 22 November 2016, also denied that the CFMEU was liable pursuant to s 550 of the FW Act or was vicariously liable under the common law for the contraventions of s 500. A second further amended defence was filed on 5 December 2016 at the end of the first day of the trial.

10    In the meantime, a mediation before a Registrar of this Court was held, with the consent of the parties, on 24 May 2016. It was unsuccessful. By orders made on 25 May 2016, the Registrar required the parties to file letters setting out their positions on when the proceeding should be listed for hearing.

11    By letter dated 27 May 2016, the respondents requested that the matter not be listed for hearing until Bromberg J handed down judgment in a proceeding entitled Director of the Fair Work Building Industry Inspectorate v Powell. That case raised the issue of whether entry to premises, pursuant to an invitation under s 58 of the Occupational Health and Safety Act 2004 (Vic) (“the OHS Act”), was subject to Part 3-4 of the FW Act. The respondents claimed that the answer to this question would affect the whole of the applicant’s case against Mr Davies.

12    By letter dated 31 May 2016, the Commissioner opposed the deferment of the hearing. The Commissioner said that Powell only concerned alleged contraventions of s 494 of the FW Act, which was not an issue in this proceeding. The Commissioner contended that Powell would not affect the whole of the case against Mr Davies, but rather only the conduct that he was alleged to have engaged in on 29 July 2014.

13    Justice Bromberg’s judgment was delivered on 3 November 2016: Director of the Fair Work Building Inspectorate v Powell [2016] FCA 1287. In that judgment, his Honour held that ss 58 and 70 of the OHS Act did not confer a right of entry for the purposes of s 494 of the FW Act: at [32], [104]-[105]. An appeal to the Full Court was allowed. The Full Court’s judgment was delivered on 2 June 2017: see Australian Building and Construction Commissioner v Powell [2017] FCAFC 89 at [59]-[61] (Allsop CJ, White and O’Callaghan JJ). An application for special leave to appeal to the High Court was dismissed on 17 November 2017: see Powell v Australian Building and Construction Commissioner [2017] HCATrans 239.

14    The hearing in this proceeding took place from 5 to 7 December 2016 whilst the Powell appeal hearing was pending. The parties made submissions as to the relevance (or lack of it) of Powell to the issues which fell to be resolved.

15    They also made submissions on the relevance of certain other extant proceedings before single judges of this Court which raised issues relating to the question of the CFMEU’s potential liability under ss 793 and 550 of the FW Act. At the time of the hearing in this proceeding, an appeal from one of those decisions was pending before another Full Court. That appeal was heard in March 2017 and judgment was delivered in May 2017. Ultimately leave to raise the issue on appeal was refused and the Full Court refrained from expressing a view as to the application of s 793 to a contravention of s 500: see Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77 at [44]-[52] (Flick J, North and Besanko JJ agreeing).

16    I have delayed handing down this judgment because of these developments.

THE PRINCIPAL PARTICIPANTS

17    Messrs Davies and Tadic were both, at the relevant times, officials, officers and employees of the CFMEU: Mr Davies was an organiser and Mr Tadic was a health and safety officer. Mr Kent Williams was employed by CCS and was the elected health and safety representative for a workgroup on the site. The respondents filed an outline of evidence from Mr Williams, while Messrs Davies and Tadic invoked the privilege against self-exposure to a civil penalty. On the second day of the hearing, Mr Davies elected to waive this privilege. He filed a written outline of evidence and gave oral evidence in his defence. Mr Williams also gave oral evidence at the trial.

18    The other persons of relevance include employees of CCS who were present on the site at the relevant dates: Mr John Shelley was the site manager and Mr Simon Ireland was the project manager. The Commissioner relied upon s 793 of the FW Act to attribute the relevant conduct engaged in by Messrs Ireland and Shelley at the site to CCS. Other participants included Sergeant Jason Hawke, a police officer who attended the site on 29 July 2014, and Mr Damien Cravino, a Fair Work Building Industry Inspector. Prior to the hearing, the Commissioner filed outlines of evidence of Mr Shelley, Mr Ireland, Sergeant Hawke and Mr Cravino. All but the last of those outlines attached statements those men had earlier given to the Fair Work Building Industry Inspectorate. The statement of Sergeant Hawke dated 21 January 2015 and a statement of Mr Ireland dated 27 August 2014 were tendered without objection. An earlier statement of Mr Ireland, dated 30 July 2014, was admitted in part into evidence. At trial, oral evidence was given by Mr Ireland and Sergeant Hawke. Mr Shelley’s statement was not tendered and neither he nor Mr Cravino gave evidence at trial.

THE THREE SITE ENTRIES

19    The alleged contraventions arise from three entries, by one or more of the respondents, to the site. It was not in dispute that:

(1)    on 22 July 2014, Mr Davies attended and entered the site (“the first entry”);

(2)    on 29 July 2014, Mr Davies and Mr Tadic attended and entered the site (“the second entry”); and

(3)    on 1 August 2014, Mr Davies and Mr Tadic again attended and entered the site (“the third entry”).

20    It was common ground that, at the time of each of the entries, Mr Davies and Mr Tadic each held an entry permit issued under s 512 of the FW Act and an entry permit issued pursuant to s 83 of the OHS Act. It was also common ground that they were acting within the scope of their actual or apparent authority as officers of the CFMEU on those occasions.

THE FIRST ENTRY — 22 JULY 2014

21    Mr Davies’ entry onto the site on Tuesday 22 July 2014 occurred at the request of the designated health and safety representative, Mr Williams. It was accepted by all parties that Mr Williams’ request for assistance was made pursuant to s 58(1)(f) of the OHS Act and that he held safety concerns about incomplete scaffolding that may have been dangerous and the fact that there was no safety sign-off by a licensed scaffolder.

22    Mr Davies did not provide an entry notice prior to attending the site. Nor did he present himself to the site office or sign the visitors’ book. Instead, he met Mr Williams and together they walked towards the scaffold. On their way, Mr Davies spoke with a group of plasterers employed by Creative Fitout Solutions, a sub-contractor on the site, about a pay dispute arising from another site. The length of that discussion, and whether it had been planned by Mr Davies, was disputed.

23    At approximately 10.30 am, while that discussion was occurring, Mr Ireland, the project manager, approached Mr Davies and requested that he produce his entry permit. Mr Davies admitted that he failed to do so initially or at all and that he said words to the effect of: “I’m speaking with these guys about a payment issue, can you give me a minute. I’ll show you when I’m finished.” Although the number of times Mr Ireland asked Mr Davies to show his entry permit was in contention, Mr Davies admitted that he told Mr Ireland to “fuck off”. The manner in which he spoke those words to Mr Ireland was disputed.

24    When Mr Davies failed to show his permit, Mr Ireland directed him to leave the site by saying words to the effect of, “You’re welcome on site if you show me your permit, if you don’t you will have to leave.” Mr Davies said, “I won’t be showing you my permit.” Mr Ireland replied by saying words to the effect of, “Well you give me no choice; I will have to call the police.” Mr Davies did not comply with that direction and did not leave the site.

25    Mr Williams and Mr Davies then moved towards the scaffold and the structure known as the “fly tower”. Mr Ireland followed them. Upon being directed on a second occasion by Mr Ireland to leave the site, Mr Davies said to Mr Ireland, “Why are you following me? Just go away.”

26    Upon arriving at the scaffold, Mr Davies announced to Mr Ireland, “This is the reason I am here; I am here for an OH&S reason.” At this point the accounts of the interested parties diverged. Mr Ireland said that, at the scaffold, Mr Davies held a mobile phone in close proximity to his face and took close-up photos of him in a threatening manner. This was denied by Mr Davies. Mr Davies said that, although he had taken a photograph of Mr Ireland at the scaffold, it was not of his face but rather of him stepping down from an access step which Mr Davies considered did not comply with safety requirements.

27    Mr Ireland called the police to the site. Mr Davies produced his entry permit to the police at their request and then left the site. It was agreed that Mr Davies did not show his permit to Mr Ireland on this day.

Mr Ireland’s evidence

28    Mr Ireland first saw Mr Davies on site that day talking to about five plasterers who were employed by Creative Fitout Solutions. He recalled that he asked Mr Davies twice to produce his permit at that time. Mr Davies did not comply to either request. Mr Davies told him to “F off” in front of those workers. His demeanour was agitated and he spoke in an aggressive manner. In response to being asked by Mr Ireland to leave, Mr Davies did not do so.

29    At the scaffold, Mr Davies took out his mobile telephone and started videoing Mr Ireland. Mr Davies held the telephone in front of Mr Ireland’s face. It was about a metre away from his face. Mr Ireland felt intimidated.

30    Mr Ireland called the police to the site. When the police attended, Mr Davies showed them his permit but did not show it to Mr Ireland.

31    A copy of Mr Ireland’s diary entry for 22 July 2014 was in evidence. Mr Ireland gave evidence that he had prepared the hand-written diary entry immediately after Mr Davies left the site on that day. The relevant entry stated:

… 10.50 am …

Nigel [Davies] the CFMEU organiser walked onsite today without stopping @ the site offices.

David Callander from Creative Fitout Solutions informed me that he was in Zone E lecturing his employees about travel allowance owed to them on another project.

I walked into the area and requested to see his federal permitt. He stated he wanted to finish his talk and then he would provide his permitt. I stated I needed to see it now and the process of legal entry into this bdg site needed to be followed. He refused to do this.

He was requested to leave site but refused to do so. I informed him that the police were being called to remove him from site.

He proceded to walk around site with Kent [Williams] (HS+E) with no regard to the direction to leave site.

Kent led him to the scaffold in the Fly tower and stated that a certification card on the scaffold was not present. Nigel then confirmed the reason for him being on site was for this OH+S issue for non-compliant scaffold.

The police arrived and reinforced the need for Nigel to provide 24 hrs notice and the req’d documentation.

The police stated that he would be charged with TRESSPASS if he was to come to site again and not follow the correct process of entering the site.

(Errors in original.)

32    Under cross-examination, Mr Ireland conceded that he did not know who called the meeting with the plasterers or whether the interaction was planned by Mr Davies or was spontaneous. He also conceded that he did not know definitively that Mr Davies was using his mobile telephone to record videos or take photographs of him. He did say that Mr Davies “appeared to be using the phone as if he was videoing or photographing my face with his phone”. Mr Ireland said that he did not recall that there were access steps to the scaffold of about a metre in height. Nor did he recall Mr Davies taking photographs of the scaffold at the time he had this interaction with him.

33    Mr Ireland was not asked about the events of 22 July 2014 in re-examination,

Mr Williams’ evidence

34    Mr Williams gave evidence that he had telephoned Mr Davies on the preceding Friday and asked him to come to the site by saying, “Nigel, there’s some scaffold that I’m not real sure about. Can you come and run your eye over it for me?” Mr Williams again called Mr Davies on the morning of 22 July 2014 to ask if Mr Davies was still coming, to which he replied, “Yes.” When Mr Davies arrived at the site, Mr Williams proceeded with him towards the place that Mr Williams wanted him to look at, which was the scaffold in the theatre. Some of the other workers, up to five or six plasterers, approached Mr Davies to ask about a different pay dispute. Mr Davies said to them, “Settle boys. I’m not here for that.” Mr Davies told them, “Look, boys, I’ve heard you. I will look into it for you”, and he then proceeded with Mr Williams to continue the site inspection. The interaction with the workers did not appear, to Mr Williams, to have been planned; when asked if it had been planned he said, “Absolutely not.” He said that the interaction with the plasterers took less than five minutes. He then slightly revised this answer by saying that he did not think it went for any more than five minutes. It was around this time that Mr Ireland arrived and asked to see Mr Davies’ permits. Mr Davies said to Mr Ireland that, “That’s not what I’m here for. I’m going to look at something that Kent has got an issue with.” Mr Ireland kept asking for the permit, and Mr Davies said, “No.” The exchange between Mr Ireland and Mr Davies was, at this time, fairly cordial. Mr Williams did not think anything of it, and they proceeded to where the scaffold was with Mr Ireland “in tow”.

35    At the scaffolding tower, Mr Davies established that there was no “scaffolding ticket”. While at the scaffold, Mr Williams observed Mr Davies taking some photographs. These were photographs of the gap where the steps should have been. Mr Williams later understood that Mr Davies was interested in the gap because there are legal requirements for steps that enable access and egress to scaffolds. As they proceeded up the scaffold, every time Mr Davies saw something wrong he would take a photo. Mr Williams had previously observed this practice of Mr Davies. It was usual for him to photograph things that needed to be fixed on the building site, unless there was somebody there to fix it right away.

36    When the police were subsequently called to the site, there was a short interaction between Mr Davies and the police. The police asked to see his permits, which he showed to them, and then he left.

37    Under cross-examination, Mr Williams agreed that he had heard Mr Ireland ask Mr Davies three times for his permits and that Mr Davies had refused to comply. Mr Williams did not agree that Mr Davies was agitated when he refused to provide the permits. He explained that Mr Davies’ conversation with the workers would not have gone on for anywhere near as long as it did if Mr Ireland had not kept interrupting; it would have been a passing conversation. He did not recall hearing Mr Davies say “fuck off” to Mr Ireland but conceded that he may have forgotten that those words were spoken.

38    He reiterated that Mr Davies “had his phone out” at the bottom of the scaffold to take photos and also did so on the way up the scaffold. Mr Williams disagreed that Mr Davies had taken close up photos of Mr Ireland’s face. He said that was that was not his recollection at all. He denied that Mr Davies held his camera up as though he was taking photographs of Mr Ireland’s face or that he was behaving in an intimidating way towards Mr Ireland.

39    When asked, in cross-examination, whether the police had asked Mr Davies to produce his permit to Mr Ireland, Mr Williams said, “Yes, they did.” When asked whether he heard Mr Davies refuse to give Mr Ireland his permit when asked to do so by the police, he said, “Yes.”

40    In re-examination, Mr Williams emphasised that he did not recall Mr Davies trying to intimidate Mr Ireland. He said, “I don’t remember [Mr Davies] taking photos like this of Mr Ireland up in his face. It didn’t happen.”

Mr Davies’ evidence

41    Mr Davies gave evidence that Mr Williams had telephoned him and explained that he had concerns with a scaffold that was being erected. The specific concern was that workers were already on the scaffold even though it had not been signed off by a competent scaffolder with a high-risk licence. He described his reaction after Mr Williams told him about the scaffold issue as follows: “I said that I had to come out to – to have a look, to view it for myself.” When asked for what purpose he entered the site, he replied, “It was for the purpose of to try and make that scaffold safe for the workers.” When asked whether he had any other purpose, he replied, “No.” Mr Davies arrived at about 9.30 or 10.00 am and saw Mr Williams near the front gate. Mr Davies said that he did not sign in when he entered the site because he intended it to be a quick visit. He conceded that he should have signed in. He then headed towards the scaffold with Mr Williams. On the way to the scaffold, he was stopped by a couple of workers, employed by Creative Fitout Solutions, who asked him how the pay claim from a previous site was coming along. Mr Davies said that he spoke with them for a “very, very brief time” of two or three minutes. He said that they “just wanted an update on … if they were going to get their back pays.” Mr Davies described his response as follows: “I just said I was dealing with it and I will get back to them, because it – it was still in – in the process of being dealt with.” He did not intend to have that conversation with the workers when he entered the site.

42    Mr Ireland approached Mr Davies while that conversation with the workers was taking place and asked to see Mr Davies’ permit. Mr Davies admitted that he did not show it. When asked why he did not do so, he said that he was only there for a quick visit and he had been asked to come to the site by a health and safety representative so he “thought it would be more appropriate just to see the problem at hand and just go about business.” He admitted that Mr Ireland asked to see his permit a second time and that he again refused. The reason for the second refusal was that he had “been asked to come onto the site for a safety concern, and [his] objective was to deal with that.” He said that his tone of voice in speaking to Mr Ireland was normal and not aggressive or loud.

43    When they arrived at the scaffold, Mr Davies observed that the sign on the scaffold, known as a “scafftag”, was empty and had not been completed by a licensed person. Mr Davies, observing that this was an indication that the scaffold could be dangerous, took a photograph of the scafftag for his records as there were people up on the scaffold. He told Mr Ireland that nobody should be working on the scaffold because it had not been signed off. Mr Davies also observed that the access step at the base of the scaffold was about 800 or 900 millimetres when normally a step had to be 200 millimetres or less. This meant there was a pretty decent fall and that there was no proper access to the scaffold. Mr Davies took a photograph, with his mobile telephone, of Mr Ireland stepping down off the step to give the photograph context of by showing how steep the actual step was. He did not tell Mr Ireland he was going to take that photograph.

44    Sometime later the police attended the site and asked Mr Davies to produce his papers. He showed the police both his Federal and State right of entry papers but did not show those papers to Mr Ireland.

45    Under cross-examination, Mr Davies agreed that he knew prior to his attendance on 22 July 2014 that the Creative Fitout Solutions plasterers were on the site and that they had a pay issue at another site. He conceded that he knew that it was possible that the plasterers would wish to discuss their issues with him but maintained that he did not attend the site for that purpose. His intention on entering the site was to help Mr Williams with his safety issue. When asked whether, prior to going on the site, he had an intention that, if the plasters raised the pay issue with him, he would speak to them about it, he answered: “Out of politeness, yes.” He agreed that, during his interaction with the plasterers, he had been asked three times by Mr Ireland to show him his permit. He admitted that he had told Mr Ireland to “fuck off” when requested to show his permit but denied that he did so in an aggressive way.

46    He said that, as he walked towards the scaffold, he had told Mr Ireland that he was at the site to look at the scaffold because of safety concerns. He reiterated that he had taken photographs of the scaffold and the “scaff tag”. He denied that he had held his mobile telephone up in front of Mr Ireland’s face or that he had taken photographs of his face. When asked whether he gave the impression that he was taking photos in Mr Ireland’s face, he answered, “possibly”. He denied that he was trying to intimidate Mr Ireland. He maintained that he had only taken photos of Mr Ireland when he was stepping down from the large step at the base of the scaffold. He agreed that he had taken the police to his car, which was parked out the front of the site, because that was where the permits were and in order to prevent Mr Ireland from seeing them. When asked about why he did not show his permits to Mr Ireland after the police arrived, he conceded that he did not think Mr Ireland should see the permits at that time. He said that he could not be sure that the police did not ask him to show his permit to Mr Ireland.

47    Mr Davies was also asked the following questions in cross-examination about the purpose of his visit on 22 July 2014:

[W]e’re back on 22 July, the first visit. When Mr Williams told you that he had a concern about the tagged scaffold – this is in your phone call – and he had a concerned that it wasn’t tagged, I think you said, or something to that effect? --- Yes. It was incomplete.

Yes. You decided that you would go to inspect that scaff? --- Yes.

Yes. And you knew that if it wasn’t tagged that it was a relevant breach of the relevant Act? --- Yes.

And you knew that when he rang you and he brought it to your attention that that would be a breach if it wasn’t tagged? --- Yes.

And you went on the site to investigate that breach? ---Yes.

And you suspected a contravention of the OH and S Act when you were going onto the site? --- Yes.

And you went on for the purpose of inquiring into that contravention? --- Yes.

48    In re-examination, counsel for the respondents addressed the same subject matter:

MS KELLY: Mr Davies, again, you’ve given some evidence earlier about the difference between being invited on under section 58 and entering to investigate a suspected contravention? --- Yes.

What were you doing on 22 July? --- I was invited on to inspect the scaffold that we believed that was incomplete and wasn’t safe for workers to be on.

When you say you were invited on, who did the inviting? ---The invitation was from Mr Williams, which is the elected occupational health and safety rep.

And what words did Mr Williams use? --- He wanted me to have a look at the scaffold. He was – he wasn’t too sure.

Once you’ve gone on site, whether it’s under 58 or an ARREO … what do you do differently? … We’ll if I’m invited on by the rep the rep will take me to the – to the source of the problem and see if we can actually rectify it, identify it and speak to management thereafter.

And if you go on using your ARREO procedure, what do you do then? --- I would obviously have the rep involved as well as site management, and I would issue them with the – with the appropriate paperwork and the suspected contravention.

49    In re-examination, Mr Davies also explained that he might have given the impression he was taking photographs of Mr Ireland: “I had the phone in my hand as – and I did take photos of Mr Ireland stepping down off the large step.” When asked about the distance between him and Mr Ireland at that time, he said: “As he was stepping off, I would say within three metres.”

The second entry — 29 July 2014

50    On 29 July 2014, at about 1.10 pm, Mr Davies again entered the site, this time accompanied by Mr Tadic. They both signed the visitors’ register at the time of entry. It was common ground that the entry of both Mr Davies and Mr Tadic was in response to a request for assistance from the designated health and safety representative, Mr Williams, under s 58(1)(f) of the OHS Act.

51    It was conceded by the respondents that Mr Ireland had requested that Mr Davies produce his entry permit and that Mr Davies had failed to produce it in response to that request (“the first refusal”). Following that refusal to produce the permit, Mr Ireland had directed Mr Davies to leave the site. Mr Davies refused to leave and stated, “We’re not leaving the site”. He had then walked with Mr Tadic to inspect the scaffold on the site. At about 1.30 pm, Victoria Police officers arrived at the site. Upon the request of those officers, Mr Davies and Mr Tadic each produced their two entry permits under the FW Act and the OHS Act for inspection by the police. At the time of producing their permits to the police, they were standing approximately 50 metres away from Mr Ireland. They did not produce their permits to Mr Ireland.

Mr Ireland’s evidence

52    Once again, an extract of Mr Ireland’s hand-written diary was in evidence. The entry for 29 July 2014 stated:

•    @ approx 1.00 pm I arrived at site to see Nigel Davies and another CMFEU [sic] person at the site sheds with HSR Kent Williams.

•    I requested what they were doing onsite and they stated under section 58 of the OH+S act they were coming to site to inspect scaffold.

•    Nigel was requested to produce his federal permit but he refused to on the basis that the OH+S act s 58 did not require him to do so.

•    He was requested to leave site but refused to, walking over to the scaffold. John Shelly [sic], Kent Williams, Alex (Tsiando), Nigel Davies and myself walking over there.

•    The police were called and arrived @ 1.30 pm.

•    The police, Danny Walter, Paul Chase, Jason Hawk and Lindsay Riley arrived to site and did not know or were confused at how to deal with the situation in terms of allowing the CFEU [sic] organisers onsite.

•    The CFMEU organisers showed Federal Permit to police by refuse to those these to CCS.

•    CCS (Simon) requested to see contravention notice.

•    CMFEU [sic] refused to do this.

•    @ 2.45 Alex (CMFEU [sic]) said he was not going to waste anymore [sic] time and will be back this week with WorkSafe and a new book to shut down this place which is a fucking disaster. Advised me not to book anything in.

•    CMFEU [sic] left site. Police took down statement of events from Alex.

(Errors in original.)

53    Mr Ireland deposed that he had called the police to the site that day. Mr Davies did not show Mr Ireland his permit when the police were there or after they left. Nor had Mr Davies given CCS any notice of his intention to enter the site that day. Mr Ireland was not cross-examined about his evidence concerning the events on 29 July 2014.

Sergeant Hawke’s evidence

54    Sergeant Hawke, a member of Victoria Police, gave evidence that he attended the site on 29 July 2014. He attended with Sergeant Lindsay Reilly, Senior Constable Danny Wolters and Leading Senior Constable Paul Chase in response to a complaint that there were some people on site who were not supposed to be there. He recalled speaking with Messrs Ireland, Williams, Davies and Tadic. Once Sergeant Hawke arrived at the site, Mr Ireland told him that Mr Tadic and Mr Davies came onto the site at the request of Mr Williams. There were some issues with scaffolding they had to look at. Mr Ireland told Sergeant Hawke that they were looking at other things as well, which was why Mr Ireland asked them to leave the site. Sergeant Hawke gave the following evidence in examination-in-chief:

And did you ask Mr Davies and Mr Tadic to show their permits to Mr Ireland? --- Yes.

And did they? --- No. They said – they might have said an [A]ct on the day, but I can’t remember, but they said, “Under the Act we don’t have to. We don’t need to show him.”

And did you ask them to show them to you? --- Yes. After that, I asked if they would be able to show them to me and – which they did.

…

Where did they show you the permits? --- It was in their car which was – it was about 50 metres in a car park from where we were standing out the front of the building.

And did you see them at any time show their permits to Mr Ireland? --- No.

55    Mr Ireland agreed to accept that Mr Davies and Mr Tadic had valid permits on the basis that Sergeant Hawke had sighted them. Immediately after the incident, and when he was in his car, Sergeant Hawke made a note of the visit. This note was annexed to the statement he had given to the Commissioner and was in evidence.

56    In cross-examination, Sergeant Hawke clarified that he was not suggesting that Mr Tadic had said to him that he was wasting his (Mr Tadic’s) time. He said that he heard the word “fuck” every day in the workplace among his colleagues and said that “[i]t’s very common English now.”

57    Sergeant Hawke was not re-examined.

Mr Williams’ evidence

58    Mr Williams gave evidence that Mr Davies and Mr Tadic came back to the site on 29 July 2014. Mr Williams had telephoned Mr Davies and asked him to come on that day and Mr Davies had indicated that he would be there. He had told Mr Davies: “Nigel, you need to come back and have another look. I’m not happy.” And further: “Look, Nige, you’re going to come back and have another look. They’ve put a tag on [the scaffold], but I think that’s all they’ve done to it. I still don’t think it’s right.” Mr Davies had said: “No worries.”

59    Under cross-examination, Mr Williams said that he had verbally let the site manager know beforehand in the morning that Mr Davies was coming that day. Mr Williams had met Mr Davies and Mr Tadic at the gate when they arrived. They had a discussion and then headed to the scaffold. When the police arrived, they were on the scaffold. The police came up the scaffold, at which time Mr Davies and Mr Tadic informed them that they should not be up there because they were not wearing the correct personal protective equipment. It was suggested by somebody, possibly a member of the police, that the conversation should continue on the ground. They then exited the scaffold and went down to near the front gate. Mr Williams initially said that the police did not ask Mr Davies and Mr Tadic to show their papers to Mr Ireland. Mr Williams later admitted that he was not privy to all of the conversations and so would not disagree with Sergeant Hawke’s evidence that he had requested that the officers show their permits to Mr Ireland.

60    In re-examination, Mr Williams emphasised that he told Victoria Police that he invited Mr Davies and Mr Tadic on to the site: “I went and got my OH&S Act out of my office, opened it up to section 58, and said, ‘This – this is why these two people are on site. I’ve invited them on.’”

Mr Davies’ evidence

61    Mr Davies gave evidence that he attended the site on 29 July 2014 following telephone calls from Mr Williams on that morning and on the previous day. Mr Williams told him that he believed the scaffold was still incomplete even though it had now been signed off and deemed safe to work on. Specifically, Mr Williams was concerned that there was still a handrail missing and that there were issues concerning the pieces at the top of the scaffold. Mr Davies said that he would be there as soon as he could. Mr Tadic attended the site with him as they often worked together. They arrived after lunch or possibly a bit later.

62    The police were also called to the site that day. A lengthy discussion with the police ensued in relation to paperwork. Mr Davies sought to explain to the police that Mr Williams had invited them onto the site. The police had difficulty grasping the concept of s 58 of the OHS Act and that they were there under that section to assist Mr Williams. Mr Williams, Mr Tadic, Mr Ireland and Mr Shelley were all present during the conversation with the police. The police asked Mr Davies to produce his permit to them, which he did. He did not think that the police asked him to produce his permit to Mr Ireland and in any event he did not do so. He did not produce it to Mr Ireland because he believed he was there under s 58 of the OHS Act assisting the health and safety representative on site and that he was not required to produce the permit in those circumstances.

63    In cross-examination he reiterated that he had arrived with Mr Tadic at the site after lunch. Mr Williams had telephoned him before they attended. He had not given CCS prior notice before attending. At the site, Mr Williams met them at the front gate and talked about some of his safety concerns. The following exchange with the Commissioner’s counsel occurred:

... You came to look at that scaffold again? --- Yes.

And Mr Williams had already caused you to be concerned that it wasn’t – still wasn’t compliant ---Yes.

And you strongly suspected that it wasn’t? --- Yes.

And you went on to investigate the non-compliance? --- Yes.

And you went onto site to inquire into the suspected contravention of the OH&S Act? --- Yes.

And when the police arrived, they came up the scaffold; is that correct? --- Yes.

… You were, by then, up the scaffold? --- Yes.

And the police came up? --- Yes.

Yes. And they – you all eventually came down and went to near the entranceway? --- That’s right.

And at that time, the police asked you to show Ireland the permits? --- We showed the police the permits. Yes.

They asked you to show Ireland the permits? --- Yes.

Yes. And you didn’t show Ireland your permit at any stage, did you? --- No.

No. He asked for them, but you didn’t show him during that visit? --- No.

No. He asked you to leave, during the visit, a couple of times? --- Yes.

And you didn’t leave when he asked? --- No.

64    In re-examination, Mr Davies said the following about his entry onto the site:

Now, in relation to 29 July, it was put to you that you suspected this scaffold was a contravention of the Occupational Health and Safety Act? --- Yes.

What rights do you have to investigate a suspected contravention of the Occupational Health and Safety Act? --- What rights? Well I was invited on from the – Mr Williams which is the Occupational Health and Safety rep – the elected Occupational Health and Safety rep on the job and he had concerns so he invited me on.

And if, for example, if he hadn’t invited you on, do you have any other right to investigate a safety matter? --- Yes.

And can you tell me what that right is? --- That would be issue my paperwork and – a suspected contravention - - -

And on the - - - ? --- - - an ARREO.

I’m sorry? --- Which is an ARREO. I – I understand it to be an ARREO. I don’t know the full terminology.

And on 29 July, which were you doing? --- I was there under section 58 of the OH&S Act.

Mr Tadic

65    Mr Tadic did not give evidence in relation to the events of 29 July 2014.

The third entry — 1 August 2014

66    On 1 August 2014, Mr Davies and Mr Tadic again entered the site. It was conceded by the respondents in their second further amended defence that this entry, by Mr Tadic, was for the purpose of exercising “a State or Territory OHS right” within the meaning of that term in Part 3-4 of the FW Act, in investigating suspected contraventions of the OHS Act.

67    Mr Davies and Mr Tadic admitted that they did not sign the visitors register at the time of entry on 1 August 2014, but rather signed it after 8.00 am, when they recorded that their time of entry was 6.45 am. Shortly after their arrival, at about 6.50 am, Mr Tadic told Mr Shelley words to the effect of, “You have a few safety issues on site. The first being egress to and from [the] site.” Mr Tadic issued a notice of a suspected contravention under the OHS Act relating to that issue. A second notice pertaining to fencing was also issued at some point on that day.

68    They proceeded to the scaffold and to the fly tower at the top of the scaffold. It was common ground that Mr Ireland had approached Mr Tadic at the fly tower at about 7.20 am and asked him what he was doing. Mr Tadic admitted that he had complained about the state of the lighting on the fly tower. The other events on the fly tower were disputed.

Mr Ireland’s evidence

69    Mr Ireland gave evidence that he had approached Mr Tadic on the fly tower. At this time, they were standing on the fly grid, which was an elevated section of the fly tower. Around them were a number of plasterers as well as Mr Williams, Mr Shelley and Mr Davies. They were all on the grid in a radius of about eight metres of each other. Mr Ireland told Mr Tadic that he needed to see his permits. Mr Ireland said that Mr Tadic responded by saying, in an aggressive and forceful manner, “I’m not dealing with a fucking pen pusher” and that Mr Tadic had told Mr Ireland to “fuck off”. Mr Ireland said that Mr Tadic had said, “This place is an F-ing disaster”, which complaint was directed to issues concerning the lighting on the fly tower. Mr Ireland said that Mr Tadic had “carried on with” “five or six minutes of a rant”, that he was “out of control” and “having a tantrum”, that he was shouting with his hands up in the air, that he talked over Mr Ireland with a raised voice, and that he was videoing or recording with his mobile phone or a video camera what he had identified as safety issues. Mr Ireland considered that Mr Tadic’s conduct was a performance directed at “management”, namely Mr Ireland. Mr Ireland described the situation as one of “volatility” and said that he had decided that his (Mr Ireland’s) presence was inflammatory and, concerned that there were potential safety issues if he stayed, he had left the fly tower and gone back to his office while Mr Tadic continued to be escorted by Mr Shelley and Mr Williams.

70    Mr Ireland was asked whether the way Mr Tadic spoke to him had any particular effect on him. Mr Ireland replied, “I was shaken”. This question and the answer were objected to by counsel for the respondents on the ground that the effect of Mr Tadic’s words on Mr Ireland was irrelevant to the case as pleaded.

71    A copy of Mr Ireland’s diary for 1 August 2017 was in evidence. This entry relevantly stated:

•    6.52 am – call from JS. Informed me that Nigel [Davies] + Alex [Tadic] were onsite and had shown them their Federal Permit and issue notice of suspected contravention re access + egress to and from site.

•    I stated that the light would be adequate in 10 mins time and there should be no issue regarding work.

•    7.18 – arrived onsite and JS was with CCS labour cleaning up slabs to zone A. I asked where Nigel + Alex were and he said they were in flytower. Confirmed again that permit had been shown and witnessed notice.

•    I went to Flytower top level and Nigel, Alex and Kent were there.

•    I approached Alex who had video camera and asked him why he was here. He stated that he is not dealing with a fucken pen pusher told me to fuck off. He proceeded to say that there were lighting issues specifically emergency lighting and asked what the issue would be if an accident … occurred.

•    he then verbally attacked me and accused me of compromising the welfare of workers and told me I was a fucken disgrace. He continued berating me in front of Nigel, Kent, John and plasterers who were also in area.

•    I asked him to act professionally and that this is a workplace and his abuse directed at me was an OH+S issue in itself. He clearly did not understand what he was doing in the workplace and continued to tell me that I was a disgrace to get back in my office.

...

•    I then made a call to Travis Cox at 7:36 am and explained the situation. We discussed the issue and specifically SJTA sending their men home.

•    Travis stated that it was illegal for S/C to leave site due to CFMEU pressure. I was asked to call Rod or meet with him.

•    Rod … stated that due to workers in area (plumbing excavation) he did not have any works to continue on with.

•    Notices of contraventions issues which I got copies of.

•    John Shelley worked towards rectifying them (C/notices).

•    CFMEU left site early afternoon.

(Errors in original.)

72    The following exchange occurred in cross-examination:

Now, Mr Tadic had a video of some kind, and he was filming as you approached. That’s correct, isn’t it? – Correct.

…

What did it appear to you that he was filming? --- Safety issues in his mind that he considered to be safety issues, specifically lighting.

And what he said to you was not that he was not dealing with a fucking pen pusher, but there was no point in dealing with a pen pusher. That’s what he said, isn’t it? --- Can I refer to my statement, please? I cannot remember the exact words.

You can’t remember is enough. Thank you. And he didn’t tell you to fuck off, did he? What he said was that the site was a fucking disgrace? --- He would have told me to fuck off a number of times at that point.

You’ve said he would have. I’m asking you what you specifically recall him saying? --- He said, “The place is a fucking disaster. I’m not dealing with a pen pusher”, is my recollection, “Fuck off”.

So your evidence is he said, “The place is a fucking disaster. I’m not dealing with a pen pusher, and then said, “Fuck off”? --- A number of times in various orders.

73    Counsel for the respondents challenged Mr Ireland about the reason his written statement, given on 27 August 2014 about the events on 1 August 2014, only referred to Mr Tadic telling him to “fuck off” once, rather than multiple times. Mr Ireland stated that there was “no reason” he did not tell Mr Cravino that Mr Tadic had told him to “fuck off” more than once. In re-examination he agreed that the statement did not record every single word that he had said to Mr Cravino.

74    Mr Ireland was pressed under cross-examination about Mr Tadic’s tone of voice, which he agreed was raised. He maintained that Mr Tadic was speaking “aggressively”, rather than merely firmly, and that he was very animated. Mr Ireland maintained that their interaction continued for five or six minutes rather than two or three.

75    In re-examination, the following exchange occurred:

You’ve in response to my friend said that he called you a pen pusher. Did he just call you a pen pusher, or did he use any other words in that description of you? --- “Fucking pen pusher”, I think it was.

You think or you know? --- I know.

You know. And it was suggested to you that he had called you a disgrace. Did he just call you a disgrace or did he use other words in that description of you? --- “Fucking disgrace.”

MS KELLY: The difficulty with that question, your Honour, is that I didn’t put that Mr Tadic called him a disgrace. He called the site was a disgrace.

MS WALSH: No. You actually said the site was a disaster. But I will clarify that, then.

When Mr Tadic was talking to you and he said, “You’re a disgrace,” did he just say, “You’re a disgrace”, or did he use other words in that description of you? --- Other words.

And what were those other words? --- “Fucking disgrace.”

76    Mr Ireland described Mr Tadic’s conduct when he was speaking to him as “[t]hrowing his arms up in the air, shouting, berating, general conduct that shouldn’t be in the workplace”.

77    During his visit at the site on 1 August 2014, Mr Tadic issued CCS with two notices of suspected contraventions of the OHS Act. The first notice described the suspected contraventions as: “access and egress onto site and all work area’s” [sic]. The second notice described the suspected contraventions as follows: “Temporey [sic] fencing around the whole site does not comply to manufactures [sic] specifications also no sign off on shade cloth on fencing.”

Mr Tadic

78    Mr Tadic invoked the privilege against self-exposure to a penalty and did not give evidence at the hearing in this proceeding. In his defence, he admitted that he complained about the state of the lights on the site but denied that he had called Mr Ireland a “fucking disgrace”. He denied that he had acted in an aggressive and abusive manner towards Mr Ireland for approximately five minutes or at all.

Mr Williams’ evidence

79    Mr Williams was not asked, in examination-in-chief, about his recollection of the events of 1 August 2014. In cross-examination, Mr Williams agreed that he heard Mr Ireland ask Mr Tadic what he was doing and Mr Tadic complain to Mr Ireland about the lighting on the site. He said that his recollection of the relevant exchange was that Mr Tadic had said to Mr Ireland, “there was no point dealing with a pen pusher”. He agreed that Mr Tadic had used a “rude word” in that particular exchange but said that he did not know if Mr Tadic said, “eff off”. He agreed that Mr Tadic was generally shouting and swearing at Mr Ireland. When asked what sort of swear words Mr Tadic was generally using towards Mr Ireland, he stated: “Mostly the eff bomb which is every second word.” When asked whether Mr Ireland could get much of a word in, he said: “No. There wasn’t a great deal coming back. Simon [Ireland] was trying to get his point across which he did. But Alex [Tadic] was quite animated.”

80    In re-examination, Mr Williams described Mr Tadic’s physical behaviour during the interaction as follows:

Standing, shouting, not so much arm waving or anything like that. There could have been a finger point. Actually, later on in the conversation I remember a finger point. But there was a good gap between them. There was no in your face, if you know what I mean.

He clarified that the gap between the two men was probably three or four feet. Mr Tadic was using a tone of voice that involved both shouting to be heard over the background noise as well as some general shouting. It was necessary to shout to be heard about the background noise which was a “little bit below a dull roar”.

81    He said that the interaction between Mr Tadic and Mr Ireland on the fly tower took “three minutes tops”. He said that Mr Tadic’s swearing was “in the conversation” and “wasn’t directed” except to the extent that it was used to underscore safety issues identified by Mr Tadic on the site. He explained that Mr Tadic’s swearing involved phrases similar to the following: “That’s a fucking disgrace. That’s no fucking good. That’s fucking broken. Somebody could fucking fall down there and kill themselves.”

82    When asked by counsel for the respondents how much of Mr Tadic’s discussion with Mr Ireland was about safety, Mr Williams replied:

Well, apart from probably the first sentence where he said, “There’s no point talking to a pen pusher or an effing pen pusher.” The rest of it was safety and he reeled off – I would hate to think how many alleged infractions.

Mr Davies’ evidence

83    Mr Davies gave evidence that he was up the fly tower with Mr Williams, Mr Shelley, Mr Tadic and Mr Ireland. There were also a number of workers up there. He was not really able to hear any conversation that took place between Mr Tadic and Mr Ireland. He said that he was more concerned about the workers who were working in the dark part of the grid because it was very poorly lit. He did hear Mr Tadic raise his voice but could not say to whom he was speaking; he assumed that he had raised his voice because he was concerned for the workers who were in conditions 30 or 40 metres in the air in a poorly lit environment where nobody should be working. He did not hear Mr Tadic yell. The ambient noise was pretty high because workers were plastering, cutting timber and had their radios going. He did not hear Mr Tadic say to Mr Ireland, “I’m not dealing with a fucking pen pusher. Fuck off.” Nor did he hear Mr Tadic say that Mr Ireland “was a fucking disgrace” or see Mr Tadic behave in an aggressive or abusive manner to Mr Ireland. Mr Davies was not close enough to observe Mr Tadic at all times. He conceded that it was possible that things were said but that he didn’t hear them.

84    Under cross-examination, Mr Davies admitted that he did not give CCS prior notice of his attendance at the site on that day. He went to the site on his own volition to follow up on the site issues identified on 29 July 2017. He did not make a file note or diary note of the day’s events.

85    He maintained that, on the fly tower, he did not hear Mr Tadic say to Mr Ireland, “I’m not dealing with a fucking pen-pusher. Fuck off.” He denied hearing Mr Tadic express frustration with Mr Ireland about the state of the lighting, but agreed that he heard Mr Tadic expressing to Mr Ireland his frustrations with the job and management in general. He denied that these expressions of frustration were about Mr Ireland in particular.

86    He said that did not hear Mr Tadic getting aggressive, shouting or swearing at Mr Ireland. He denied that he heard Mr Tadic liberally using the “F word” but conceded that it was “possible” that he did. He agreed that he heard Mr Tadic swearing about the site. He denied that Mr Tadic did more than shout to be heard above the background noise and denied that he heard Mr Tadic shouting at Mr Ireland specifically. He maintained that he did not hear Mr Tadic say to Mr Ireland that “the site was a fucking disgrace”. Mr Davies agreed that Mr Ireland was not aggressive in his dealings with him and that he didn’t hear him use the “F word” during the visits.

87    Mr Davies was asked about his relationship with Mr Tadic and agreed that he had given evidence in relation to Mr Tadic’s behaviour on prior occasions. He denied that he called Mr Tadic to sites when he needed sites to “fall into line” or when people like Mr Ireland asked for permits or got in his way. He said that he called Mr Tadic when people let safety slip on a site.

88    In re-examination, Mr Davies repeated that it was not possible for everything to be heard on the fly grid because of the background noise. When asked to give an example of Mr Tadic swearing on the site, he said: “he would have said that the site was a disgrace and it was a disgrace.” He did not positively recall him saying those words. In his view, the work site was plagued with a lot of safety issues. There was a near fatality at the bottom of the scaffold which occurred subsequent to these visits. That worker had not been inducted for the purposes of the job and had not signed in on three occasions. Mr Davies said his relationship with Mr Tadic was that of work colleagues. He invited Mr Tadic to sites when safety slipped because Mr Tadic was probably the most experienced person in the construction industry and that, in his experience, when Mr Tadic came on site, safety improved out of sight.

Legislation

89    It is convenient at this point to set out some of the legislative provisions in the FW Act and the OHS Act that are relevant to this proceeding.

90    Section 512 of the FW Act provides as follows :

512 FWC may issue entry permits

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.

91    Section 494 provides:

494 Official must be permit holder to exercise State or Territory OHS right

Official must be permit holder

(1)    An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.

Note: This subsection is a civil remedy provision (see Part 4-1).

Meaning of State or Territory OHS right

(2)    A right to enter premises, or to inspect or otherwise access an employee record of an employee that is on premises, is a State or Territory OHS right if the right is conferred by a State or Territory OHS law, and:

(a)    the premises are occupied or otherwise controlled by any of the following:

(i)    a constitutional corporation;

(ii)    a body corporate incorporated in a Territory;

(iii)    the Commonwealth;

(iv)    a Commonwealth authority; or

(b)    the premises are located in a Territory; or

(c)    the premises are, or are located in, a Commonwealth place; or

(d)    the right relates to requirements to be met, action taken, or activity undertaken or controlled, by any of the following in its capacity as an employer:

(i)    a constitutional corporation;

(ii)    a body corporate incorporated in a Territory;

(iii)    the Commonwealth;

(iv)    a Commonwealth authority; or

(e)    the right relates to requirements to be met, action taken, or activity undertaken or controlled, by an employee of, or an independent contractor providing services for, any of the following:

(i)    a constitutional corporation;

(ii)    a body corporate incorporated in a Territory;

(iii)    the Commonwealth;

(iv)    a Commonwealth authority; or

(f)    the exercise of the right will have a direct effect on any of the following in its capacity as an employer:

(i)    a constitutional corporation;

(ii)    a body corporate incorporated in a Territory;

(iii)    the Commonwealth;

(iv)    a Commonwealth authority; or

(g)    the exercise of the right will have a direct effect on a person who is employed by, or who is an independent contractor providing services for, any of the following:

(i)    a constitutional corporation;

(ii)    a body corporate incorporated in a Territory;

(iii)    the Commonwealth;

(iv)     a Commonwealth authority.

Meaning of State or Territory OHS law

(3)    A State or Territory OHS law is a law of a State or a Territory prescribed by the regulations.

92    The OHS Act is a prescribed law for the purposes of s 494(3): see Fair Work Regulations 2009 (Cth) reg 3.25, Item 2.

93    Section 484 of the FW Act provides as follows:

484 Entry to hold discussions

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.

Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section

94    Section 487 of the FW Act provides:

487 Giving entry notice or exemption certificate

Entry under Subdivision A or B

(1)    Unless the FWC has issued an exemption certificate for the entry, the permit holder must:

(a)    before entering premises under Subdivision A—give the occupier of the premises and any affected employer an entry notice for the entry; and

(b)    before entering premises under Subdivision B—give the occupier of the premises an entry notice for the entry.

(2)    An entry notice for an entry is a notice that complies with section 518.

(3)    An entry notice for an entry under Subdivision A or B must be given during working hours at least 24 hours, but not more than 14 days, before the entry.

(4)    If the FWC has issued an exemption certificate for the entry, the permit holder must, either before or as soon as practicable after entering the premises, give a copy of the certificate to:

(a)    the occupier of the premises or another person who apparently represents the occupier; and

(b)    any affected employer or another person who apparently represents the employer;

if the occupier, employer or other person is present at the premises.

Entry under Subdivision AA

(5)    If the permit holder enters premises under Subdivision AA, the permit holder must, either before or as soon as practicable after entering the premises, give an entry notice for the entry to the occupier of the premises or another person who apparently represents the occupier if the occupier or other person is present at the premises.

95    Section 489 of the FW Act relevantly provides:

489 Producing authority documents

…

(2)    If the permit holder has entered premises under Subdivision B, the permit holder must produce his or her authority documents for inspection by the occupier of the premises on request.

(3)    Authority documents, for an entry under Subdivision … B, means:

(a)    the permit holder’s entry permit; and

(b)    either:

(i)    a copy of the entry notice for the entry; or

(ii)    if the FWC has issued an exemption certificate for the entry—the certificate.

96    Section 497 of the FW Act provides as follows:

497 Producing entry permit

A permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer.

Note: This section is a civil remedy provision (see Part 4-1).

97    Section 500 relevantly provides:

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.

Note 1: This section is a civil remedy provision (see Part 4-1).

Note 2: A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.

Note 3: A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).

98    Section 500 appears in Part 3-4 of the FW Act. That Part “is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act and under State or Territory OHS laws”: s 478.

99    Sections 497 and 500 are civil remedy provisions: see s 539(2).

100    Provisions of the OHS Act are also relevant. Section 58 provides:

58 Powers of health and safety representatives

(1)    A health and safety representative for a designated work group may do any of the following—

…

(f)    whenever necessary, seek the assistance of any person.

(2)    However, a health and safety representative may do those things only for the purpose of—

(a)    representing the members of the designated work group, or persons mentioned in section 44(1)(e) or 48(1)(e) whom the representative is authorised to represent, concerning health or safety; or

(b)    monitoring the measures taken by the employer or employers in compliance with this Act or the regulations; or

(c)    enquiring into anything that poses, or may pose, a risk to the health or safety of members of the designated work group, or of persons mentioned in section 44(1)(e) or 48(1)(e) whom the representative is authorised to represent, at the workplace or workplaces or arising from the conduct of the undertaking of the employer or undertakings of the employers; or

(d)    attempting to resolve (in accordance with section 73) with the employer concerned or its representative any issues concerning the health or safety of members of the designated work group, or of persons mentioned in section 44(1)(e) or 48(1)(e) whom the representative is authorised to represent, that arise at the workplace or workplaces or from the conduct of the undertaking of the employer.

(3)    Nothing in this Act or the regulations imposes, or is to be taken to impose, a function or duty on a health and safety representative in that capacity.

101    Section 70 of the OHS Act provides:

70 Obligation to persons assisting health and safety representatives

(1)    An employer, any of whose employees are members of a designated work group must allow a person assisting a health and safety representative access to the workplace unless the employer considers that the person is not a suitable person to assist the representative because of insufficient knowledge of occupational health and safety.

(2)    If an employer does not allow a person assisting a health and safety representative access to the workplace, the representative may apply to the Magistrates’ Court for an order—

(a)    directing the employer to allow that access; and

(b)    specifying the terms and conditions of that access.

102    Section 83 of the OHS Act provides as follows:

83 Issue of entry permits

(1)    A member of the committee of management of a registered employee organisation, or of a branch of such an organisation, may apply to the Magistrates’ Court for an entry permit to be issued to a person who is an officer or employee of the organisation as an authorised representative of the organisation.

(2)    An application for an entry permit must specify the person who is to hold the entry permit and include a statutory declaration or affidavit declaring or deposing—

(a)    that the person is qualified under section 81 to hold an entry permit; and

(b)    that the issue of the entry permit would not exceed the limit set out in the Minister's determination (if any) under section 80; and

(c)    whether—

(i)    any entry permits issued to the person have been revoked; or

(ii)    the person has been convicted or found guilty of an offence against this Part; or

(iii)    the person has been convicted or found guilty of any indictable offence within the previous 5 years.

(3)    The Magistrates’ Court may issue an entry permit to a person if it is satisfied about each of the matters in subsections (2)(a) and (b) and has had regard to the matters in subsection (2)(c).

(4)    An entry permit must include the information (if any) prescribed by the regulations.

(5)    A person who holds an entry permit is an authorised representative of the registered employee organisation that applied for the permit.

103    Section 87 of the OHS Act provides:

87 Entry powers of authorised representatives

(1)    This section applies if an authorised representative of a registered employee organisation reasonably suspects that a contravention of this Act or the regulations has occurred or is occurring at a place that is a workplace and any of the following paragraphs applies—

(a)    the suspected contravention relates to or affects work that is being carried out by one or more members of the registered employee organisation or relates to or affects any of those members;

(b)    the suspected contravention relates to or affects work that is being carried out by one or more persons whose employment is subject to a collective agreement, a certified agreement or an enterprise agreement, or relates to or affects any of those persons, and that agreement applies to the registered employee organisation;

(c)    the suspected contravention relates to or affects work that is being carried out by one or more persons—

(i)    who are eligible to be members of the registered employee organisation; and

(ii)    whose employment is not subject to a collective agreement, a certified agreement or an enterprise agreement which applies to any registered employee organisation—

or relates to or affects any of those persons.

Note

Place is defined in section 5 as including a car, truck, ship, boat, airplane and any other vehicle.

(2)    The authorised representative may enter the place, during working hours, for the purpose only of enquiring into the suspected contravention.

(3)    Nothing in this section requires an authorised representative of a registered employee organisation to disclose to another person the names of persons who are members of that organisation.

(4)    In this section—

certified agreement means a pre-reform certified agreement that continues in existence as a transitional instrument under the Fair Work Transition Act;

collective agreement means a workplace agreement that is a collective agreement that continues in existence as a transitional instrument under the Fair Work Transition Act;

enterprise agreement means an enterprise agreement made under the Commonwealth Fair Work Act.

Note

Section 90 provides certain limitations on the exercise of the powers conferred by this section.

104    Section 88 of the OHS Act provides:

88 Announcement on entry

(1)    Immediately on entering a place under section 87, an authorised representative of a registered employee organisation must take all reasonable steps to give a notice to and produce his or her entry permit for inspection by—

(a)    the employer who has, or a person who on behalf of the employer has, the management and control of the work at the place; and

(b)    if members of a designated work group are affected in any way by the entry, a health and safety representative for that group.

(2)    The notice must be in the form approved (in writing) by the Authority and include a description of the suspected contravention.

105    Section 89 of the OHS Act provides:

89 Powers on entry

(1)    An authorised representative of a registered employee organisation who enters a place under section 87 may do any of the following but only to the extent that it is reasonable for the purpose of enquiring into the suspected contravention—

(a)    inspect any plant, substance or other thing at the place;

(b)    observe work carried on at the place;

(c)    consult with one or more employees (with their consent) at the place who are members or are eligible to be members of the registered employee organisation;

(d)    consult with any employer at the place about anything relevant to the matter into which the representative is enquiring.

(2)    The authorised representative must produce his or her entry permit for inspection if asked to do so when exercising any of the powers under subsection (1).

(3)    If, while the authorised representative is at the place, an issue arises between the authorised representative and the employer who has, or a person who on behalf of the employer has, the management and control of the work at the place about the exercise of any of those powers, either of those persons may ask the Authority to arrange for an inspector to attend at the place to enquire into the issue.

(4)    The Authority must ensure that an inspector attends the place as soon as possible after the request is made and the inspector—

(a)    must as soon as possible enquire into the issue; and

(b)    may perform any of his or her functions or exercise any of his or her powers under this Act that the inspector considers reasonably necessary in the circumstances.

The SINGLE alleged contravention of s 497 by Mr Davies ON 29 JULY 2014

106    The Commissioner alleges that, during the second entry on 29 July 2014, Mr Davies committed a single contravention of s 497. This was said to have occurred when Mr Davies “continu[ed] to exercise the State or Territory OHS right after failing/refusing to comply with the 29 July Permit Request” made by Mr Ireland.

107    For the Commissioner to make good the allegation against Mr Davies in relation to the alleged breach of s 497, it is necessary for him to establish the following:

(1)    Mr Davies was a permit holder under the FW Act.

(2)    The occupier of the premises or an affected employer requested that Mr Davies produce his entry permit for inspection. The Commissioner claimed that CCS was the occupier of the premises and that Mr Ireland’s conduct could be attributed to CCS by reason of s 793 of the FW Act.

(3)    Mr Davies failed to produce his entry permit for inspection when requested to do so.

(4)    Mr Davies was exercising a State or Territory OHS right.

108    The Commissioner, in his FASOC, particularised the nature of the State or Territory OHS right at [32]:

Davies’ entry on to the Site on 29 July 2014 was for the purpose of exercising a State or Territory OHS right within the meaning of that term in the FW Act.

Particulars

The State or territory OHS right was conferred by a State or Territory OHS law, namely the OHS Act which is prescribed by regulation 3.25 of the Fair Work Regulations 2009 for the purposes of s 494(3) of the FW Act.

Davies’ purpose on 29 July 2014 is to be found or inferred from his conduct and statements made on 29 July 2014 at the Site including, but not limited to, Davies’ express indication that he had been invited on the Site by Kent [Williams] pursuant to s 58(1)(f) of the OHS Act.

Pursuant to s 70(1) of the OHS Act an employer must allow a person assisting a health and safety representative access to the workplace.

(Emphasis in original.)

109    Mr Davies denied that he had contravened s 497 as pleaded. In relation to each of the elements:

(1)    Mr Davies admitted that, on 29 July 2014, he was a permit holder within the meaning of s 12 of the FW Act, being a holder of an entry permit issued under s 512 of the FW Act in his capacity as an official of the CFMEU. Copies of these permits were in evidence.

(2)    He admitted that, on 29 July 2014, Mr Ireland requested that he produce his entry permit. In his closing submissions, he accepted that the Commissioner had established that CCS was the occupier of the premises and that Mr Ireland’s conduct should be taken to be conduct of CCS pursuant to s 793 of the FW Act.

(3)    He admitted that he failed and/or refused to produce an entry permit in response to the request by Mr Ireland.

(4)    He denied that his entry on to the site on 29 July 2014 was for the purpose of exercising a State or Territory OHS right and denied that he commenced exercising such a right when entering the site and walking through it. He admitted that he remained on the site after refusing to produce his entry permit but denied that he continued to exercise a State or Territory OHS right. He submitted that his entry had been pursuant to s 58 of the OHS Act but that this did not involve the exercise of a State or Territory OHS right for the purposes of Part 3-4 of the FW Act.

110    The areas of dispute between the parties are thus:

(1)    whether Mr Davies was exercising a State or Territory OHS right when he entered and walked through the site on 29 July 2014; and

(2)    whether he continued to exercise such a right after he failed to produce his entry permit in response to Mr Ireland’s request to inspect it.

The Commissioner’s submissions

111    The Commissioner submitted that CCS was the “occupier” of the site within the meaning of s 12 of the FW Act. The general conditions of contract between CCS and the Victorian Department of Education and Early Childhood Development, which were in evidence, were said to demonstrate this.

112    The Commissioner submitted that Mr Davies was exercising a State or Territory OHS right on 29 July 2017 which arose from s 58(1)(f) of the OHS Act. This section was said to confer a right on Mr Davies to enter the site at the invitation of, and for the purposes of assisting, Mr Williams as the health and safety representative.

113    The Commissioner contended that, to the extent that Bromberg J’s judgment in Powell held that s 58 did not confer a “right” for the purposes of s 494, it was clearly wrong and should not be followed. In any event, the Commissioner submitted that Bromberg J’s judgment was distinguishable from the present case because it concerned a breach of s 494, which breach was not pleaded in this proceeding.

114    The Commissioner also submitted that Mr Davies had exercised a right pursuant to s 87(2) of the OHS Act for the purpose of enquiring into a suspected contravention of the OHS Act. In response to the respondents’ claim that this constituted impermissible reliance upon a particular not pleaded in [32] of the FASOC (which paragraph is extracted above at [108]), the Commissioner suggested this was an “unduly technical” view of the pleadings in circumstances where [32] used the words “including but not limited to”.

The respondents’ submissions

115    The respondents submitted that, on 29 July 2017, Mr Davies entered the site pursuant to a request for assistance by Mr Williams made under s 58(1)(f) of the OHS Act. This was evident from the evidence of Mr Williams and Mr Davies about the telephone call that Mr Williams had made to Mr Davies asking him to attend the site and “run [his] eye” over the scaffold for him. Section 58(1)(f) did not confer a “right” upon Mr Davies but rather empowered Mr Williams, as a health and safety representative, to, “whenever necessary, seek the assistance of any person”.

116    The respondents contended that this request enlivened s 70(1) of the OHS Act which requires that an employer allow a person assisting a health and safety representative “access to the workplace” unless the employer considers that the person is not a suitable person to assist the representative because of insufficient knowledge of occupational health and safety. This subsection was the lawful basis upon which Mr Davies entered and remained on the site. The question was then whether this entry, regulated by s 70, was the exercise of a State or Territory OHS “right” for the purposes of s 494.

117    The respondents submitted that ss 58 and 70 created “a mere permission” to enter rather than a “right”. They relied on Bromberg J’s decision in Powell to argue that s 494 was not engaged by the entry of Mr Davies pursuant to ss 58 and 70 of the OHS Act: see Powell at [32], [104]-[105]. I was invited to follow Bromberg J’s judgment in Powell for reasons of comity and because it was not plainly wrong. The respondents submitted that it followed that Mr Davies was not, on 29 July 2014, exercising a State or Territory OHS right and the case against him under s 497 must be dismissed.

118    In relation to the Commissioner’s reliance upon s 87, the respondents contended that the Commissioner did not plead that Mr Davies’ entry on 29 July 2014 was made pursuant to that section and should not now be permitted to change the nature of his case. The particulars at [32] of the FASOC refer only to ss 58(1)(f) and 70(1) of the OHS Act. No further particulars were provided and the Commissioner should not now be permitted to rely upon s 87.

Consideration

119    The undisputed evidence satisfies me that, on 29 July 2014, Mr Davies was the holder of an entry permit, issued to him under s 512 of the FW Act. I am further satisfied that CCS was the occupier of the site and that Mr Ireland’s conduct was attributable to his employer, CCS.

120    As mentioned above, the Full Court allowed the Commissioner’s appeal in Powell. It held that ss 58(1)(f) and 70(1) of the OHS Act provide a “right” for the purposes of the FW Act: Australian Building and Construction Commissioner v Powell [2017] FCAFC 89 at [59]-[61] (Allsop CJ, White and O’Callaghan JJ). The practical result of the Full Court’s construction of Part 3-4 is that, if an official of a federally registered union (such as the CFMEU) asserts a right of entry to a construction site, he or she must comply with the provisions of that Part. An application for special leave to appeal from the Full Court’s judgment to the High Court was, as already noted, dismissed by the High Court.

121    The OHS Act is a prescribed “State or Territory OHS law” for the purposes of s 494(3) of the FW Act.

122    In light of the respondents’ concession that Mr Davies entered the site on 29 July 2014 pursuant to ss 58(1)(f) and 70(1) of the OHS Act, the evidence of Mr Davies that he entered pursuant to these provisions (recorded at [64] above), and the Full Court’s decision in Powell, Mr Davies’ entry to the site could not occur, consistently with s 497 of the FW Act, unless he produced his entry permit when requested to do so by Mr Ireland. He was so requested and, on that occasion, he declined or failed to produce his permit. On and after that request, and the failure to comply with it, Mr Davies was precluded from exercising or seeking to exercise any rights under the OHS Act. By persisting with his inspection of the scaffolding he contravened s 497 of the FW Act.

123    Because of this finding, it is unnecessary for me to determine whether Mr Davies also entered the site for the purposes of s 87 of the OHS Act.

The FIVE alleged CONTRAVENTIONS of s 500 by Mr Davies on 22 JULY 2014 and 29 july 2014

124    The Commissioner alleged that Mr Davies committed four contraventions of s 500 during the first entry on 22 July 2014 and one contravention of s 500 during the second entry on 29 July 2014 by acting in an improper manner when exercising, or seeking to exercise, a State or Territory OHS right.

125    The relevant elements that the Commissioner must prove in relation to the alleged breaches of s 500 are that, on each of the relevant occasions:

(1)    Mr Davies was a permit holder;

(2)    Mr Davies was exercising, or seeking or exercise, rights in accordance with Part 3-4 of the FW Act; and

(3)    Mr Davies acted in an improper manner.

126    In relation to the first element, Mr Davies admitted that, on 22 and 29 July 2014, he was a “permit holder” within the meaning of s 12 of the FW Act, being the holder of an entry permit issued under s 512 of the FW Act in his capacity as an official of the CFMEU.

127    In relation to the second element, Mr Davies admitted that he attended and entered the site on 22 and 29 July 2014. He denied that his entry on 22 July 2014 was made for the purpose of holding discussions with employees performing work on site in accordance with s 484 of the FW Act or that it was for the purpose of exercising a State or Territory OHS right in accordance with s 87 of the OHS Act. Rather, Mr Davies pleaded that his entry was undertaken pursuant to ss 58(1)(f) and 70(1) of the OHS Act, which provisions empowered Mr Williams to seek his assistance and required CCS to permit him to access the site. Those sections did not, he contended, confer a “right” on him for the purposes of Part 3-4 of the FW Act. Mr Williams had sought his assistance in relation to safety concerns pertaining to dangerous and incomplete scaffolding and the lack of a safety sign off by a licensed scaffolder. He admitted that, on 29 July 2014, his entry occurred pursuant to ss 58(1)(f) and 70(1) of the OHS Act.

128    In relation to the third element, the Commissioner alleged, and Mr Davies denied, four instances where Mr Davies was alleged to have acted in an improper manner on 22 July 2014 and one instance on 29 July 2014. Mr Davies was said to have contravened s 500 by:

(1)    on 22 July 2014, failing to give an entry notice at least 24 hours prior to the entry in breach of s 487 of the FW Act, failing to present himself at the site office and sign the visitors’ book, thrice refusing to comply with Mr Ireland’s requests to produce his entry permit for inspection in contravention of s 489(2) of the FW Act, and using indecent and profane language to Mr Ireland by telling Mr Ireland to “fuck off” when asked to produce his entry permit;

(2)    on 22 July 2014, refusing to comply with a reasonable direction to leave the site, which had been issued by Mr Ireland in response to Mr Davies’ refusal to show his permit. The direction was said to be reasonable because, pursuant to s 486 of the FW Act, a permit holder is not authorised to remain on a premises if he or she contravenes Subdivision C of Division 2 of Part 3-4 of the FW Act. Sections 487 and 489 appear in that subdivision;

(3)    on 22 July 2014, saying to Mr Ireland, “Why are you following me? Just go away”, and by not leaving the site in response to a second direction to leave issued by Mr Ireland;

(4)    on 22 July 2014, holding a mobile phone in close proximity to Mr Ireland’s face and taking close-up photos of Mr Ireland and continuing to refuse to produce his entry permit for inspection by Mr Ireland; and

(5)    on 29 July 2014, refusing to leave the site in the face of a direction to leave issued by Mr Ireland and, after he produced his entry permit for inspection by Victoria Police, his continuing refusal to produce his entry permit for inspection by Mr Ireland.

129    Mr Davies admitted some of the Commissioner’s allegations but denied others:

(1)    In relation to the first alleged contravention, Mr Davies admitted that, on 22 July 2014, he did not provide the entry notice (although he denied that he breached s 487) or present himself to the site office or sign the visitors’ book. He admitted that Mr Ireland requested that he produce his entry permit, that he failed to produce his entry permit initially or at all, and that he told Mr Ireland to “fuck off”. In his written defence, he pleaded that he did not recall the number of times that Mr Ireland requested that he show his entry permit. He denied that this conduct constituted a contravention of s 500.

(2)    In relation to the second alleged contravention, Mr Davies admitted that, on 22 July 2014, Mr Ireland directed him to leave the site when he failed to show his permit and that he did not leave in response to that first direction. He denied that this constituted a contravention of s 500.

(3)    In relation to the third alleged contravention, Mr Davies admitted saying to Mr Ireland on 22 July 2014, in response to his second direction to leave the site, “Why are you following me? Just go away.” He denied that this constituted a contravention of s 500.

(4)    In relation to the fourth alleged contravention, Mr Davies denied that, on 22 July 2014, he held a mobile phone in close proximity to Mr Ireland’s face and took close-up photos of Mr Ireland. He admitted that he produced his entry permit only for the attention of Victoria Police but did not plead to the allegation that he continued to refuse to produce his entry permit for inspection by Mr Ireland. He denied that he had contravened s 500.

(5)    In relation to the fifth alleged contravention, Mr Davies denied that he had contravened s 500 on 29 July 2014. While he admitted that he refused to produce his entry permit upon the request of Mr Ireland, he invoked the privilege against self-exposure to a civil penalty and did not plead to the allegation that he continued to refuse to produce his permit for inspection by Mr Ireland. He admitted that he produced his entry permits under both the FW Act and the OHS Act for inspection by attending police whilst being approximately 50 metres away from Mr Ireland. He admitted that he did not comply with the request by Mr Davies to leave the site and that he walked with Mr Tadic to inspect the scaffold.

130    The Commissioner also pleaded, in the alternative, that the alleged conduct of 22 July 2014 identified at [128], when taken in its totality, was improper and constituted a single contravention of s 500. Mr Davies denied this allegation.

131    He also pleaded, again in the alternative, that the conduct, said to constitute a separate contravention of s 497 on 29 July 2014, when considered with the conduct alleged to contravene s 500 on that day, constituted a single contravention of s 500. Mr Davies denied this allegation.

132    Three principal areas of dispute emerge from these pleadings:

(1)    whether, on 22 and 29 July 2014, Mr Davies was exercising, or seeking or exercise, rights in accordance with Part 3-4 of the FW Act;

(2)    whether Mr Davies engaged in the conduct alleged against him on 22 and 29 July 2014 (except for the conduct already admitted); and

(3)    if he did so, whether engaging in that conduct constituted acting in an “improper manner” for the purposes of s 500.

The Commissioner’s submissions

133    The Commissioner submitted that, on 22 July 2014, Mr Davies entered the site for the purpose of holding discussions with employees pursuant to s 484 of the FW Act and for the purpose of enquiring into a suspected contravention of the OHS Act under s 87(2) of that Act. The Commissioner submitted that Mr Davies’ entry on 22 July 2014 had also occurred pursuant to an invitation under s 58(1)(f) of the OHS Act, although that particular section had not been relied on in his pleadings. Mr Davies’ entry on 29 July 2014 was said to be undertaken pursuant to ss 58 and 87 of the OHS Act, although only the former section had been specified in the Commissioner’s pleadings.

134    The Commissioner submitted that the evidence supported findings of four breaches of s 500 on the part of Mr Davies on 22 July 2014 and one breach of that section on 29 July 2014 as identified above at [128].

The respondents’ submissions

135    The respondents submitted that Mr Davies’ entries on 22 and 29 July 2014 were in response to a request made pursuant to s 58 of the OHS Act. They denied that either entry had occurred pursuant to s 87 of the OHS Act. While the respondents accepted that there is overlap between the conduct that might be engaged in when a person enters pursuant to a request under s 58(1)(f) and pursuant to s 87, the relevant question is the purpose of the entry. On both occasions, Mr Davies had entered in response to the telephone call from Mr Williams which requested his assistance with dealing with his concerns about the scaffold on the site. The respondents denied that, on 22 July 2014, Mr Davies entered to hold discussions with employees pursuant to s 484: the interaction with the plasterers was unplanned and Mr Davies had responded “out of politeness” to a spontaneous approach before going on to provide assistance to Mr Williams.

136    The respondents submitted that the alleged contraventions of s 500 by Mr Davies must be dismissed if the first instance decision in Powell were to be followed. This was because, according to that judgment, Mr Davies, in entering pursuant to ss 58 and 70 of the OHS Act, was not exercising a right for the purposes of Part 3-4 of the FW Act. If that were not to be accepted, the respondents submitted that the evidence fell short of supporting the alleged contraventions of s 500 by Mr Davies. The respondents emphasised that it is only the pleaded case that they must answer and that they cannot be required to meet what they said was an expanded case run by the Commissioner at trial.

Consideration

137    On both 22 and 29 July 2014 Mr Davies was a permit holder for the purposes of the FW Act. He was, consistently with the Full Court’s decision in Powell, exercising or seeking to exercise rights in accordance with Part 3-4 of the FW Act. Those rights were State or Territory OHS rights conferred, as he contended, pursuant to ss 58 and 70 of the OHS Act. In relation to 29 July 2014, entry pursuant to those sections had been pleaded by the Commissioner and admitted by the respondents.

138    I note that, in relation to the entry on 22 July 2014, the Commissioner’s pleadings did not, in terms, invoke ss 58 and 70 of the OHS Act. Despite this the case was conducted on the basis that entry had occurred pursuant to these provisions and falls to be assessed on that basis: Qantas Airways Ltd v Licensed Aircraft Engineers Association (2012) 202 FCR 244 at 260; [2012] FCAFC 63 at [82]-[83] (Gray, North and Besanko JJ). It is, therefore, unnecessary to determine whether entry on that day was also effected pursuant to s 484 of the FW Act (to hold discussions with the plasterers) or s 87(2) of the OHS Act (enquiring after suspected safety breaches).

139    There remains the question of whether Mr Davies’ conduct on either or both of the two days was “improper” within the meaning of s 500 of the FW Act.

140    It is now well established that, in determining whether or not a permit holder has acted “in an improper manner” within the meaning of s 500 of the FW Act, an objective assessment of the person’s conduct is required: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15 at [39]; Director of the Fair Work Building Industry Inspectorate v Bragdon (2015) 147 ALD 373 at 394; [2015] FCA 668 at [97] (Flick J); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106] (Mansfield J).

141    In Bragdon (at [97]) Flick J held that “improper conduct” is conduct “which falls below that standard which can reasonably be expected of those who occupy positions of responsibility.”

142    In Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847 at [169] Barker J observed that the dictionary definition of the word “manner” refers to a “way of doing, being done or happening; mode of action, occurrence, etc”. As a result, what the permit holder says “and its effect, and how he spoke, all may potentially comprise conduct falling under the ruling ‘act in an improper manner’”: at [170].

143    As the Full Court held in the Castlemaine Police Station Case at [42] the question which falls for determination is whether Mr Davies’ conduct breached the standards that would be expected of a union official by reasonable persons with relevant knowledge of the duties of such an official in respect of the maintenance of health and safety on construction sites.

144    It was not in dispute that Mr Davies entered the site on 22 July 2014 at the invitation of Mr Williams and for the purpose of assisting Mr Williams in dealing with perceived occupational health and safety issues under ss 58(1)(f) and 70(1) of the OHS Act. Mr Davies did not provide CCS with any prior notice of his intention to enter the site. He did not enter the site office. He did not sign the visitors’ book. When requested, at least twice, by Mr Ireland to produce his entry permit he refused to do so and told Mr Ireland to “fuck off”. He failed to comply with a direction from Mr Ireland that he leave the site. When Mr Ireland continued to observe Mr Davies and issued a second direction that he leave the site, Mr Davies said, dismissively, “Why are you following me? Just go away”.

145    I am also satisfied that Mr Davies placed his mobile phone close to Mr Davies’ face when Mr Davies was stepping down from the scaffolding access step. I do not accept Mr Davies’ explanation that he was simply recording the height of the step; he could have taken the photograph easily before or after Mr Ireland came to be standing on the step.

146    These events on 22 July 2014, both individually and collectively, constituted conduct which fell below the standard which reasonably could be expected of a permit holder. Mr Davies effectively asserted an entitlement to unrestricted access to the site without regard to the statutory obligations which attach to such an entry. He had determined that he would not acknowledge any attempt by site management to exercise some lawful control over his movements. He had determined that he would not comply with any request by site management to produce his entry permit. He persisted in that refusal despite multiple requests to him to produce the permit. He could easily have done so. He had the permit in his possession and later showed it to police officers. In rejecting attempts to have him produce the permit he directed foul and dismissive language to Mr Ireland. He did not comply with Mr Ireland’s directions to leave the site. He offered no viable explanation to Mr Ireland for his refusal to comply with Mr Ireland’s requests.

147    In my view such conduct was “improper” within the meaning of s 500 and Mr Davies thereby contravened that section on 22 July 2014.

148    Mr Davies attended the site again on 29 July 2014. He did so in the company of Mr Tadic. They attended in response to another request from Mr Williams for assistance in relation to a health and safety issue under ss 58(1)(f) and 70(1) of the OHS Act. Mr Davies had not given any prior notice of his intention to attend on that day. They both signed the visitors’ register. Mr Davies refused a request from Mr Ireland to produce his permit although he had it with him. He failed to comply with at least one direction from Mr Ireland that he should leave the site. He proceeded to accompany Mr Tadic on an inspection of parts of the site.

149    As I have already held, Mr Davies’ refusal to produce his permit when requested to do so by Mr Ireland constituted a contravention of s 497 of the Act on 29 July 2014. Such a contravention might also (as it did here) constitute “improper” conduct within the meaning of s 500: cf Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2016] FCA 872 at [69].

150    For these reasons I consider that Mr Davies also contravened s 500 on 29 July 2014.

The SINGLE alleged CONTRAVENTION of s 500 by Mr Tadic on 1 august 2014

151    The Commissioner alleged a single contravention of s 500 by Mr Tadic during the third entry on 1 August 2014. The Commissioner alleged that Mr Tadic had breached this section by acting in an improper manner. As already noted, the relevant elements that the Commissioner must prove in relation to s 500 are that:

(1)    Mr Tadic was a permit holder;

(2)    Mr Tadic was exercising, or seeking or exercise, rights in accordance with Part 3-4 of the FW Act; and

(3)    Mr Tadic acted in an improper manner.

152    Mr Tadic admitted that he satisfied the first of these elements by reason of his status as a permit holder within the meaning of s 12 of the FW Act, being the holder of an entry permit issued under s 512 of the FW Act in his capacity as an official of the CFMEU.

153    In relation to the second element, Mr Tadic admitted that he had entered the site on 1 August 2014 and that this entry was for the purpose of exercising a State or Territory OHS right within the meaning of that term in the FW Act. In particular, he admitted that his purpose when entering the site was to be found or inferred from his conduct including, but not limited to, the fact that he issued a notice of a suspected contravention of the OHS Act. Two such notices, issued on that day by Mr Tadic, were in evidence.

154    In relation to the third element, the Commissioner submitted that Mr Tadic acted in an improper manner by his abusive behaviour, his use of indecent and profane language and by his aggressive manner. The impugned conduct was alleged to have been engaged in by Mr Tadic in the fly tower in response to Mr Ireland asking him what he was doing. Specifically, Mr Tadic was said to have:

(1)    responded to Mr Ireland with words to the effect of, “I am not dealing with a fucking pen pusher … fuck off”;

(2)    complained about the state of the lighting on site and said to Mr Ireland that he (Mr Ireland) was a “fucking disgrace”; and

(3)    acted in an aggressive and abusive manner towards Mr Ireland, over a period of approximately five minutes.

155    As I have mentioned, Mr Tadic invoked the privilege against self-exposure to a civil penalty and did not give evidence at the hearing in this proceeding. In reliance upon that privilege, he did not plead in relation to the first allegation that he had said to Mr Ireland words to the effect of, “I am not dealing with a fucking pen pusher … fuck off.” He did admit that, at about 7.20 am on 1 August 2017, he was approached by Mr Ireland at the fly tower. In relation to the second allegation, he admitted that he had complained about the state of the lights on the site but denied that he had described Mr Ireland personally as a “fucking disgrace”. He also denied the third allegation that he had acted in an aggressive and abusive manner towards Mr Ireland for approximately five minutes.

156    There were, therefore, two principal issues in dispute:

(1)    whether Mr Tadic engaged in the conduct described at [154] above (except for the complaint about the state of the lighting, which was admitted); and

(2)    if so, whether engaging in that conduct constituted acting in an “improper manner” for the purpose of s 500.

The Commissioner’s submissions

157    The Commissioner submitted that Mr Ireland’s evidence at the hearing in this proceeding was sufficient to establish that Mr Tadic had engaged in the alleged conduct summarised at [154]. Mr Williams’ evidence also supported the contention that Mr Tadic was shouting and swearing at Mr Ireland. In particular, Mr Williams had given evidence that Mr Tadic shouted at Mr Ireland, was swearing (“mostly the eff bomb which is every second word”) and did not let Mr Ireland get a word in. The respondents’ attempts to claim that there was insufficient evidence, to demonstrate that Mr Tadic said the precise words pleaded, were said to be of no effect in the face of this evidence.

158    The Commissioner also sought to rely upon certain other conduct of Mr Tadic on 1 August 2014 which was said to be improper. This included his admitted failure to sign the visitors’ book on entry and his backdating of the time of his entry. It was also alleged that Mr Tadic “verbally attacked” Mr Ireland around the time he called him a “fucking pen pusher”. The Commissioner conceded that the first of these matters had not been pleaded “specifically as a contravention”, but contended that because it was otherwise pleaded, and admitted by the respondents, there was no basis to disregard the behaviour nor the contravention arising from it. In relation to the second matter, the Commissioner submitted that the pleadings sufficiently supported the allegation because it was pleaded that Mr Tadic “act[ed] in an aggressive manner”.

159    The Commissioner submitted that the Court should draw an inference from Mr Tadic’s invocation of the privilege against self-exposure to a civil penalty that his evidence would not assist his case: see Jones v Dunkel (1959) 101 CLR 298. The availability of such an inference in civil penalty proceedings has been confirmed by the Full Court: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Protection Commission (2007) 162 FCR 466 at 489-490; [2007] FCAFC 132 at [74]-[76] (Weinberg, Bennett and Rares JJ). See also: Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228 at [147] (North, Dowsett and Rares JJ). It was submitted that Mr Tadic’s reliance on the privilege against self-exposure to a civil penalty meant that it was open to the Court to accept more readily the evidence of the witnesses called by the Commissioner: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Minister and Energy Union (No 2) [2016] FCA 607 at [106] (Besanko J); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 at [74], [79] (White J). An appeal from the latter judgment was dismissed: see Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77 at [53]-[62], [64] (Flick J, North and Besanko JJ agreeing).

160    The Commissioner submitted that s 500 was directed at conduct of the type alleged against Mr Tadic. A range of cases were referred to where the Court had made findings of improper conduct in relation to rude and disrespectful behaviour by permit holders in the construction industry: see, eg, Setka v Gregor (No 2) (2011) 195 FCR 203 at 204-205, 206, 209; [2011] FCAFC 90 at [5]-[10], [14]-[16] and [31] (Lander, Tracey and Yates JJ); Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 at [23] (Gilmour J); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 at [200]-[206] (White J).

The respondents’ submissions

161    Counsel for the respondents submitted that it is for the Commissioner to make good the allegations of fact pleaded against Mr Tadic and to establish that such conduct was improper within the meaning of the FW Act. It was contended that the evidence at trial did not rise to the level needed for the Commissioner to prove his case.

162    In relation to the first component of the pleaded conduct, the respondents submitted that, in the face of Mr Ireland’s concession under cross-examination that he could not recall the exact words spoken by Mr Tadic, this Court cannot be satisfied that Mr Tadic said, to Mr Ireland, “I’m not dealing with a fucking pen-pusher”. This admission was said to undermine Mr Ireland’s evidence-in-chief that Mr Tadic had uttered these words. The most the Court could conclude from Mr Ireland’s evidence was that Mr Tadic had said: “The place is a fucking disaster. I’m not dealing with a pen pusher.” Mr Ireland had positively stated, in cross-examination, that he recalled Mr Tadic using those words. It was submitted that there was nothing improper about those words and that s 500 is not directed to all conduct that one might find offensive or rude, but rather conduct which falls below an accepted standard of propriety, which varies depending on the particular circumstances. Mr Tadic spoke robustly to Mr Ireland when confronted with what he considered to be serious safety matters; he did not speak in an “improper manner” within the meaning of s 500 of the FW Act.

163    In relation to the second component of the pleaded conduct, the respondents submitted that Mr Ireland gave no evidence that Mr Tadic called him a “fucking disgrace” in either examination-in-chief or cross-examination. The evidence given by Mr Ireland in re-examination, that Mr Tadic had called him those words, was said to be problematic such that this Court should not rely upon it. The impugned exchange was identified as the following:

And it was – so it was suggested to you that he had called you a disgrace. Did he just call you a disgrace or did he use other words in that description of you? – “Fucking disgrace.”

MS KELLY: The difficulty with that question, your Honour, is I didn’t put that Mr Tadic called him a disgrace. He called the site a disgrace.

MS WALSH: No. You actually said the site was a disaster. But I will clarify that, then.

When Mr Tadic was talking to you and he said, “You’re a disgrace,” did he just say, “You’re a disgrace”, or did he use other words in that description of you? --- Other words.

And what were those other words? --- “Fucking disgrace.”

(Underlining added.)

164    Counsel for the respondents submitted that she did not describe the site as a disaster; she used the word “disgrace” while Mr Ireland used the word “disaster”. More importantly, she said, at the time that the underlined question was asked, there was no evidence from Mr Ireland or anyone else that Mr Tadic had called him (Mr Ireland) a disgrace. The question was said to be tainted because it was leading and assumed a fact not in evidence; the Court would err were it to rely on that evidence, particularly having regard to the provisions of s 140 of the Evidence Act 1995 (Cth). As a consequence, it was submitted, there was no evidence that Mr Tadic called Mr Ireland “a fucking disgrace” and the allegation cannot be made good.

165    In relation to the third component of the pleaded conduct, the respondents submitted that, while Mr Ireland’s evidence was that his interaction with Mr Tadic lasted for between five and six minutes, he offered no evidence in support of that assertion and he was unable to provide a narrative for five or six minutes of sustained dialogue by Mr Tadic. Mr Ireland had not asked Mr Tadic to modify his behaviour, which would be expected for an exchange of that duration, and had only offered two sentences to support the exchange. Mr Davies seemed to have hardly noticed the interaction, which makes it unlikely that the incident lasted for the length of time alleged. Mr Williams put the exchange, at most, at only three minutes.

166    Counsel for the respondents emphasised that the exchanges concerned safety: “It was not abuse directed at Mr Ireland, it was a robust commentary of the ‘disgraceful’ state of the workplace” (emphasis in original). Mr Williams’ evidence was that, apart from the “pen pusher” comment by Mr Tadic, the “rest of it was safety”. Counsel for the respondents sought to emphasise that swearing on a construction site is common.

167    The respondents submitted that the Commissioner’s failure to call Mr Shelley, despite a subpoena issuing to him, supported an inference that his evidence would not assist the Commissioner’s case. Mr Shelley was within an eight metre radius of Mr Ireland while the alleged interaction was occurring. No explanation was offered as to why Mr Shelley was not called.

168    The respondents also submitted that answers by Mr Ireland given in cross-examination about how Mr Tadic’s conduct made him feel were irrelevant and inadmissible. Counsel for the respondents noted that the Commissioner did not plead that Mr Tadic’s behaviour was improper because of the way in which Mr Tadic spoke to Mr Ireland. The pleading was confined to an allegation that his behaviour was improper because Mt Tadic engaged in the conduct (namely used the pleaded words). The question whether the conduct was improper within the meaning of s 500 is objective. Absent a pleading as to the effect of the conduct, Mr Ireland’s subjective response to the conduct was, it was contended, wholly irrelevant.

169    Counsel for the respondents submitted that, having regard to s 140(2)(c) of the Evidence Act 1995 (Cth) and the principles expounded in Briginshaw v Briginshaw (1938) 60 CLR 336 codified therein, the Court could not be satisfied that Mr Tadic acted in an aggressive and abusive manner for five or six minutes.

Consideration

170    As can be seen, it was common ground that Mr Tadic was a permit holder for the purposes of the FW Act, and that he had entered the site on 1 August 2014 for the purpose of exercising a State or Territory OHS right, which involved the issuing of two notices of a suspected contravention and the exercise of powers under s 89 of the OHS Act. This admission is sufficient to meet the requirement, in s 500, that Mr Tadic was exercising, or seeking or exercise, rights in accordance with Part 3-4 of the FW Act.

171    The factual issue which must be resolved is whether Mr Tadic engaged in the conduct described at [154] above, namely whether he said to Mr Ireland words to the effect of, “I am not dealing with a fucking pen pusher … fuck off”, that he called Mr Ireland a “fucking disgrace” and that he acted in an aggressive and abusive manner towards Mr Ireland for approximately five minutes. If he engaged in some or all of this conduct, it must then be determined whether the relevant conduct is “improper” for the purpose of s 500.

172    After Mr Tadic had entered the site he climbed to the top of the scaffolding. Mr Ireland approached him and asked him why he was there. Mr Ireland’s diary note for that day records that Mr Tadic had responded that he was “not dealing with a fucken pen pusher”. The diary entry also recorded that “[Mr Tadic] told me to fuck off.” In examination-in-chief, Mr Ireland confirmed that Mr Tadic had told him, “I’m not dealing with a fucking pen pusher.” In cross-examination, Mr Ireland dropped the adjective and said that Mr Tadic had told him, “I’m not dealing with a pen pusher” and “fuck off”. Moments later, still under cross-examination, he said that “words to that effect” had been said. In re-examination, he again asserted that the term “fucking pen pusher” had been used. At trial, Mr Williams recalled Mr Tadic saying: “there’s no point talking to a pen pusher or an effing pen pusher.” I am, therefore, satisfied that Mr Tadic made the statement attributed to him by Mr Ireland when Mr Ireland first approached him.

173    Mr Ireland’s contemporaneous diary note then recorded that Mr Tadic had “verbally attacked” him and told him he was “a fucken disgrace”. In examination-in-chief and under cross-examination, however, Mr Ireland recalled Mr Tadic saying that the construction site was “a fucking disaster”. Mr Williams gave evidence that Mr Tadic had called the site “a fucking disgrace”. The words attributed to Mr Tadic were uttered in the course of a heated exchange and against a noisy background. Both statements may have been made. I cannot, however, discount the possibility that Mr Ireland misunderstood a complaint by Mr Tadic that the site was a “fucking disaster” or a “fucking disgrace” as a personal attack. I am not, therefore, satisfied that Mr Tadic said that Mr Ireland was a “fucking disgrace”. I am, nonetheless, satisfied that he described the site as “a fucking disaster” or a “fucking disgrace”.

174    I reject the respondents’ objection that evidence of Mr Ireland’s reaction to Mr Tadic’s verbal attack was irrelevant and inadmissible. That evidence went to the propriety of the “manner” in which Mr Tadic conducted himself: cf The Gorgon Project Case at [170]. The Commissioner had pleaded that Mr Tadic had acted “aggressively”. Mr Ireland’s evidence was that the way in which Mr Tadic spoke to him on the fly tower had the particular effect of making him feel “shaken”. Similarly, one of the things said by Mr Tadic, recorded in Mr Ireland’s diary entry, was that Mr Ireland should leave the tower and go back to the office. The fact that Mr Ireland, after a period of minutes, did so is a relevant fact in issue.

175    I accept Mr Ireland’s evidence that, thereafter, Mr Tadic berated him for some minutes. There are different temporal estimates. Mr Williams thought the exchanges had gone on for “three minutes tops”. Mr Ireland thought that they might have continued for up to five or six minutes. Nobody timed the exchanges. In the course of what can fairly be described as a diatribe, Mr Tadic rounded on Mr Ireland alleging various safety breaches. He did so loudly and with accompanying body movements. He swore repeatedly. He told Mr Ireland that he should get back to his office. Mr Tadic’s verbal attack on Mr Ireland took place in the presence of other company and union representatives and other persons who were working on the fly tower. At some point, between three and five minutes after the tirade commenced, Mr Ireland was sufficiently affected as to withdraw from the fly tower.

176    Having regard to the principles which I have already summarised relating to the construction and application of s 500, I am comfortably satisfied that the conduct of Mr Tadic, on 1 August 2014, which I have found to have occurred, was “improper” in the necessary sense. Mr Tadic could have responded politely to Mr Ireland’s request to explain his presence. Instead he chose to respond rudely and aggressively using foul and abusive language. Mr Tadic could have pointed out to Mr Ireland what he perceived to be deficiencies in the health and safety regime on the fly tower. Instead he engaged in a lengthy and foul-mouthed tirade. Even when allowance is made for the need for Mr Tadic to raise his voice in order to be heard over the background noise the tirade was extremely loud.

177    For these reasons I find that Mr Tadic contravened s 500 of the FW Act on 1 August 2014.

the LIABILITY OF the CFMEU

178    The Commissioner relied upon a number of bases to assert that the CFMEU was also liable for the alleged contraventions of ss 497 and 500 of the FW Act.

179    The CFMEU’s liability in respect of both of those provisions was said to arise by reason of s 793 of the FW Act.

180    In relation to the alleged contraventions of s 500, the Commissioner pleaded that a further or alternative basis upon which it could be found that the CFMEU was liable was s 550(1) of the FW Act, which provides for the liability of a person “knowingly concerned in” a contravention. A further or alternative basis for liability was said to arise because the CFMEU was vicariously liable at common law for the acts of Messrs Davies and Tadic which constituted the alleged contraventions of s 500. I will consider these bases in turn.

Direct liability on the basis of s 793 of the Fair Work Act 2009 (Cth)

181    The Commissioner submitted that, pursuant to s 793 of the FW Act, the CFMEU should be taken to have contravened the same provisions as Messrs Davies and Tadic, namely ss 497 and 500, because s 793 attributes the conduct and states of mind of those officers to the CFMEU. In response, the CFMEU contended that it cannot be held liable on such a basis because a necessary element of those contraventions is that the contravener has the status of a permit holder. The CFMEU does not, and cannot (because it is not a natural person), have the status of a permit holder and therefore cannot contravene either s 497 or s 500.

182    I have recently had occasion to review the authorities which deal with the interaction between ss 500 and 793 of the FW Act: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2017] FCA 1555 at [7]-[13]. These authorities support the CFMEU’s contention that it cannot be held liable, pursuant to s 793, for contraventions, by its officials, of ss 497 or 500.

183    The principle of comity requires that, were it necessary for me to determine the Commissioner’s claim pursuant to of s 793, I ought to follow those authorities unless I consider them to be plainly wrong: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 131; [2007] HCA 22 at [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Re York Street Mezzanine Pty Ltd (in liq) (2007) 162 FCR 358 at 365; [2007] FCA 922 at [22]-[23] (Finkelstein J); Woodridge v Minister for Land and Water Conservation (NSW) (2002) 122 FCR 190 at 193; [2002] FCA 1109 at [14] (Hill J); Garrett v The Commissioner of Taxation (2015) 233 FCR 226 at 236; [2015] FCA 665 at [33] (Kenny J). As I held in The Footscray Station Case (at [13]) I respectfully consider the decisions of Siopis J in Australian Building and Construction Commissioner v Harris [2017] FCA 733 and Charlesworth J in Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 on this point to be correct. See also: Australian Building and Construction Commissioner v O’Connor (No 3) [2018] FCA 43 at [149] (Besanko J).

184    As a result I reject the Commissioner’s submission that liability falls upon the CFMEU for the contraventions of ss 497 or 500 by operation of s 793 of the FW Act.

Accessorial liability on the basis of s 550 of the Fair Work Act 2009 (Cth)

185    The Commissioner contended, in the alternative, that the CFMEU was liable as a person “involved in” the contraventions of s 500 on the basis that it had been “knowingly concerned in” those contraventions: see s 550(2)(c). The Commissioner, in his FASOC, confined his reliance upon s 550 to the alleged contraventions of s 500 and did not plead that s 550 also provided a basis upon which to fix the CFMEU for liability for the breach of s 497.

186    Section 550 relevantly 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:

…

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

187    The Commissioner relied on s 793(1) to attribute the conduct of Messrs Davies and Tadic to the CFMEU for the purposes of s 550(2)(c). Section 793(2) was relied upon to attribute to the CFMEU the requisite state of mind.

188    The respondents submitted that s 550 cannot make the CFMEU liable for a contravention of s 500. It was contended that, for the CFMEU to be knowingly concerned in a statutory contravention, it would need to have actual knowledge of the contravention; constructive or imputed knowledge would not be sufficient. The CFMEU argued that the Commissioner’s sole reliance upon s 793 to impute knowledge to the CFMEU was an insufficient basis upon which to base liability under s 550.

189    Subsequent to the hearing in this proceeding, a Full Court refrained from expressing a view as to whether s 550 is available to ground a contravention, by the CFMEU, of s 500: see Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77 at [52] (Flick J, North and Besanko JJ agreeing).

190    However, the question of whether s 550 can be relied upon to ground accessorial liability of a registered union was considered by Charlesworth J in McDermott (No 2). At [121] and [122] her Honour said that:

121.    To the extent that it is necessary to show that CFMEU involved itself in some tangible way in the contraventions of its officials, there is no reason why s 793 should not facilitate proof of that requirement. Section 793 is premised on an accepted fiction that a body corporate is a separate legal entity from those who participate in it: Salomon v A Salomon & Co Pty Ltd [1897] AC 22. Accepting that fiction, it does not matter that the deemed physical acts of the secondary participant are the same acts in fact engaged in by the primary contravener. CFMEU did not make any submission to the contrary. Accordingly, the physical acts of Mr McDermott and Mr Cartledge are, in each instance, taken also to be the acts of CFMEU. That is sufficient to demonstrate CFMEU’s participation in each contravention.

122.    For the purposes of establishing CFMEU’s knowledge it is enough to show that Mr McDermott and Mr Cartledge knew of all of the essential facts constituting their respective contraventions: see s 793(2). …

191    The issue was again considered by White J in Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 at [19]-[38]. His Honour followed Charlesworth J’s approach in McDermott (No 2) and at [38] concluded:

In short, I consider that the statutory fictions established by s 793 mean that the conduct of an official of a body corporate may constitute a primary contravention by the official and accessorial conduct by the body corporate. I am satisfied that the CFMEU should be taken to have contravened s 500 by reason of it having been directly or indirectly knowingly concerned in Mr Huddy’s contravention of s 500.

192    This approach was also followed by Barker J in The Gorgon Project Case at [235] where his Honour found that, because of the operation of s 793 when read with s 550, the CFMEU was taken to have contravened s 500 by reason of being directly or indirectly knowingly concerned in an official’s contravention of s 500. See also: O’Connor (No 3) at [149]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 at [300] (Flick J):

193    In the present proceeding the physical acts performed by Messrs Davies and Tadic which, in each instance, gave rise to contraventions of s 500 of the FW Act, can and should be taken to be the acts of the CFMEU. The findings which I have made in this judgment, in respect of each contravention, establish that Messrs Davies and Tadic knew of all the essential facts which gave rise to their various contraventions of s 500 of the FW Act.

194    I, therefore, find that the CFMEU is liable for the contraventions of s 500 which I have found to have been perpetrated by Messrs Davies and Tadic by operation of s 550(2)(c) of the FW Act.

195    In his FASOC, the Commissioner did not seek to rely on s 550 to attribute liability to the CFMEU for Mr Davies’ contravention of s 497. Nor did he do so in his oral or written submissions. I, therefore, make no adverse findings against the CFMEU on this aspect of the case.

Common law vicarious liability

196    Further or in the alternative, the Commissioner argued that the CFMEU was vicariously liable for the contraventions of s 500 under common law principles of attribution of liability. While only s 500 was referred to in the FASOC, the Commissioner, in his written submissions, also relied upon those principles to ground the CFMEU’s liability for the alleged contravention of s 497. He submitted that such liability was not precluded by the FW Act. The respondents’ counsel emphasised that the Commissioner would need to show that each of Mr Davies and Mr Tadic were acting pursuant to an authorisation from the CFMEU or that the CFMEU did not take proper steps to prevent the conduct. The respondents submitted that the Commissioner was required to, but had failed, to establish that such authority had been given to the two officials.

197    Because of my finding at [194] above that the operation of s 550, when read with s 793, establishes the CFMEU’s accessorial liability for the contraventions of s 500 by Mr Davies and Mr Tadic, it is not necessary for me to make a finding as to whether the CFMEU is also vicariously liable at common law. Nevertheless, I would note that this Court has held that vicarious liability is not available to ground the CFMEU’s liability in relation to contraventions by its officers of s 500 of the FW Act.

198    In McDermott (No 2), Charlesworth J also considered the question of vicarious liability in relation to contraventions of s 500 of the FW Act. At [88]-[93] her Honour said:

88.    I have already observed that Section 545 of the Act empowers the Court to grant certain remedies if satisfied that a person “has contravened” a civil remedy provision. The words “has contravened” to my mind indicate that the person in question must be shown to have actually (or otherwise deemed to have actually) contravened the prohibition in question. For an example of a deeming provision, see s 550 of the Act … . The text of s 545 tends against an outcome where a permit holder may pay a penalty for his or her contravention and a registered organisation also pay a penalty in respect of liability that is truly vicarious in its nature, rather than direct or deemed to be direct.

89.    Read as a whole, Pt 3.4 evinces an intention that the objectives of that Part (which advance the objectives of the Act as a whole) be achieved by the conferral of rights on certain natural persons on the one hand, and the imposition of responsibilities upon those same persons specifically affecting the manner of exercise of those personal rights. There may well have been other means by which to achieve the statutory objective, but that is the means Parliament has chosen.

90.    The Act then makes separate provision for consequences that may befall a registered organisation in the event that its officials misuse their personal rights. It is in that wider context that s 500 is to be considered.

91.    The “duty” of a permit holder not to act in an improper manner when exercising or seeking to exercise a right is not, in my view, a duty the breach of which can result in the imposition of vicarious liability upon any other person.

92.    If the imposition of vicarious liability on a non-permit holder for a contravention of s 500 of the Act is considered desirable from a policy perspective, Parliament may readily give effect to that policy by making its intention clear. As presently framed, however, the language of s 500, construed in the context of s 545 and Pt 3.4, tells against its imposition.

93.    This alleged basis for CFMEU’s liability should be rejected.

199    Had it been necessary, I would have followed this decision. I would not have accepted the Commissioner’s contention or attributed common law vicarious liability to the CFMEU for the contraventions of s 500.

DISPOSITION

200    I will give directions for the parties to make submissions relating to the relief sought by the Commissioner for the various contraventions of the FW Act which I have found to have occurred.

Associate:

Dated:    23 February 2018