FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080

ORDERS

THE COURT ORDERS THAT:

1.    The further hearing of the application be listed at 11.00 am on 13 August 2018.

2.    On or before 31 July 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 9 August 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:

1    The applicant, the Australian Building and Construction Commissioner (“the Commissioner”), brings this proceeding against two respondents, the Construction, Forestry, Mining and Energy Union (“the CFMEU”) (as that organisation was known at relevant times) and Mr Richard Hassett, an organiser employed by the CFMEU.

2    The Commissioner alleges that each of the respondents contravened s 500 of the Fair Work Act 2009 (Cth) (“the Act”) on multiple occasions in 2015.

3    The relevant events occurred on a construction project known as Parliament Square, Stage 1A, in Salamanca Place in Hobart. The head contractor was Hansen Yuncken Pty Ltd (“Hansen Yuncken”).

4    Hansen Yuncken had engaged Stephen Little Constructions Pty Ltd (“SLC”) to install concrete formwork on the project.

PROCEDURAL MATTERS

5    The trial of the proceeding took place over three days from 13 to 15 June 2017. The parties filed written submissions in July, August and October 2017. During this period, and subsequently, there were a number of cases, pending in the Court and elsewhere, which related to legal issues raised by the parties’ submissions.

6    An application for special leave to appeal to the High Court from the Full Court’s decision in Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470; [2017] FCAFC 89 (Allsop CJ, White and O’Callaghan JJ) was pending. That case dealt with the issue of whether entry to construction premises under the Occupational Health and Safety Act 2004 (Vic) was subject to Part 3-4 of the Act. The application for special leave was dismissed by the High Court on 17 November 2017: see Powell v Australian Building and Construction Commissioner [2017] HCATrans 239. The issues in Powell are relevant, by analogy, to this case, given that Mr Hassett’s last entry was said to have taken place under the Work Health and Safety Act 2012 (Tas) (“the WHS Act”’).

7    Also during this period a series of judgments was handed down by the Court dealing with the accessorial liability of organisations for contraventions of provisions of Part 3-4 of the Act. These authorities raised questions about the construction and application of ss 550 and 793 of the Act and the prospect that organisations might also be vicariously liable at common law. These authorities are summarised in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) [2018] FCA 122 at [181]-[198] (Tracey J). These judgments are relevant to the Commissioner’s claim that the CFMEU is liable for any contraventions by Mr Hassett.

8    On 17 July 2017 the first instance decision in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 252 FCR 198; [2017] FCA 802 was handed down. The primary judge held that no contravention of s 500 could occur in circumstances in which permit holders had entered a construction site for the purposes of s 484 without giving prior notice under s 487. This decision was subject to appeal to a Full Court. On 14 June 2018 the Full Court allowed the appeal, holding that s 500 could be contravened in such circumstances: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88. The respondents, in this case, relied upon arguments based upon the primary judgment which was overturned on appeal.

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

THE EVIDENCE

10    The Commissioner called five witnesses. Those witnesses and the positions occupied by them at relevant times were:

    Mr Julian Proud, a construction manager on the project, employed by Hansen Yuncken;

    Mr Glen Sutton, a site safety officer on the project, employed by Hansen Yuncken;

    Mr Redves Julius, the senior site manager on the project, employed by Hansen Yuncken;

    Mr Colin Curlewis, the site foreman on the project, employed by Hansen Yuncken; and

    Mr Stephen Little, a director of SLC.

11    Each of these witnesses was cross-examined. Each of them strove to give an accurate account of what had transpired on the project site some two years earlier. Not surprisingly there were details which they could not recall or some uncertainty about the sequence in which some interactions occurred. Some made appropriate concessions under cross-examination. Some of their recollections were supported by contemporaneous diary notes.

12    It is notable that a number of controversial factual assertions made by Mr Hassett which were inconsistent with the evidence given by witnesses called by the Commissioner were not put to those witnesses in cross-examination. They did not, therefore, have the opportunity to deal with those matters.

13    Mr Hassett was the only witness called by the respondents. He too was cross-examined. I found aspects of Mr Hassett’s evidence to be unsatisfactory. On a number of occasions he sought to change his evidence when confronted with incontrovertible facts which contradicted his account. His attempts to recast his evidence were unconvincing. A good example is provided by his claim that there existed a history of him being permitted, by Mr Julius, to enter the site without complying with the requirements imposed by ss 487 and 489 of the Act. The occasions on which these historical entries had occurred were dated between November 2014 and 26 July 2015. When confronted with the fact that Mr Julius did not commence employment with Hansen Yuncken until September 2015, Mr Hassett sought to attribute the granting of permission to other Hansen Yuncken managers, one of whom was Mr Curlewis. These claims were inconsistent with other evidence which suggested that there had been no interactions between Mr Hassett and the managers at the relevant times. Mr Hassett’s revised claims were not put to the witnesses called by the Commissioner.

14    To the extent that there were discrepancies between the evidence of Mr Hassett and the Commissioner’s witnesses, I prefer the evidence of this latter group. I would add that the resolution of the claims made by the Commissioner do not, ultimately, turn on the outcome of the factual disputes raised by the competing evidence.

15    The following sections of my reasons record my findings about the material events on each of the three relevant days.

Events on 28 July 2015

16    Mr Hassett entered the project site at about 1.30 pm. About five minutes later Mr Sutton saw Mr Hassett walking near the site office building. Mr Sutton approached Mr Hassett and asked why Mr Hassett needed to be on the site. At the time Mr Sutton was holding an iPad on which he recorded entries onto the site. Mr Hassett responded: “Glen, I’m not in the fucking mood so put your fucking iPad away. I’m here to talk to the blokes and I will be gone in a couple of minutes.” Mr Sutton replied: “You need to give 24 hours’ notice.” He reminded Mr Hassett that discussions could only take place during meal breaks. Mr Hassett said, “No”, and kept walking through the site.

17    At about the same time Mr Curlewis approached Mr Hassett and asked Mr Hassett what he was doing. Mr Hassett said that he was on the site “to see a couple of blokes”. Mr Curlewis told Mr Hassett that he “couldn’t see the blokes because it was outside of lunchtime”. Mr Hassett responded: “You can’t fucking stop me.” Mr Hassett walked away from Mr Curlewis and into the lunchroom.

18    Once in the lunchroom Mr Hassett had a discussion with two workers, Mr Pat Pullen (an employee of SLC) and Mr Grant Woolley (an apprentice on site). A union delegate, employed by SLC, was also present. Discussions took place about the benefits of workers being in the union and Messrs Pullen and Woolley each filled out union membership application forms.

19    Following this interlude in the lunchroom Mr Hassett proceeded to the site entrance. He there spoke to Mr Proud. Mr Proud also asked Mr Hassett what Mr Hassett was doing on the site. Mr Hassett responded, “I’ve come to see an apprentice about not being able to work on Saturdays.” There was some evidence that the apprentice to whom he had referred was Mr Woolley. Mr Sutton then joined them. Mr Sutton told Mr Hassett that, “If we’re going to be talking industrial relations to the guys, you need to give us 24 hours’ and the guys can be docked four hours because it’s not within their designated meal breaks.” Mr Hassett responded by saying: “Well, you go and fucking tell them all that then.” Mr Sutton responded: “Well, I will be reporting this to the Fair Work Commission.” Mr Hassett then said that he would spread the word that Mr Sutton was responsible for “[writing] the CFMEU up”.

Events on 21 October 2015

20    On Tuesday 20 October 2015 Mr Hassett telephoned Mr Proud. According to a diary entry, made by Mr Proud, Mr Hassett requested that an election for a new health and safety representative take place on the following Tuesday. Mr Proud intimated that this would be satisfactory. Mr Hassett had then asked if it was proposed that work would occur on the site on Friday. Mr Proud told him that SLC wanted to pour concrete on that day. Mr Hassett said that he was not happy with this proposal and that he would have a safety inspection on site on some unnamed date. Mr Proud denied having agreed, during this conversation, to allowing Mr Hassett to enter the site on Wednesday 21 October 2015. I accept this denial.

21    Mr Hassett’s account of the conversation was that he had told Mr Proud that he would be at the site on the next day (21 October 2015) to speak to workers about their rostered days off. Mr Proud had not said anything in response.

22    In the event it appears that each of the topics identified by Messrs Proud and Hassett were pursued by Mr Hassett on the following day.

23    Mr Hassett entered the site at about 6.30 am on 21 October 2015. He went to the site office building. He told Mr Julius that he wanted to have “a meeting with employees in the lunch rooms to discuss working rostered days”. Mr Julius asked Mr Hassett if he had a right of entry to talk to the employees. Mr Hassett said, “No”. Mr Julius told Mr Hassett that he could not stop him conducting such a meeting but maintained that Mr Hassett should not be on the site. Mr Hassett said that he told Mr Julius that he had spoken to Mr Proud on the previous day and that Mr Proud had no problem with Mr Hassett coming to the site to speak to the workers. This suggestion was not put to Mr Julius in cross-examination.

24    Mr Hassett proceeded to the lunchroom and conducted discussions with a number of SLC employees. An election for a new health and safety representative was conducted. There was also discussion about an upcoming rostered day off, and about tea and coffee supplies for employees.

25    After the meeting in the lunchroom Mr Hassett returned to the site office. He there met with Messrs Julius, Curlewis and Sutton and told them about his discussions with the workers about the election, the rostered day off, and tea and coffee supplies.

Events on 5 November 2015

26    On 5 November 2015 Mr Hassett entered the site on three occasions. The first entry occurred at about 8.52 am. He had a meeting with Messrs Julius, Curlewis and Proud. Mr Hassett raised the question of penalty rates to be paid on the next rostered day off. Mr Hassett said that he wanted to talk to the men about taking that day off. Mr Proud responded that Mr Hassett would not be able to see the workers unless he first provided 24 hours’ notice in accordance with the Act.

27    At about 9.35 am Mr Proud and Mr Hassett left the meeting and walked together to the gate. As they walked together Mr Hassett asked Mr Proud if Mr Proud would let him back on to the site at lunch time on the day. Mr Proud had responded: “If you go through the correct process, the Fair Work Act, yes, no problem. Otherwise, no.” Mr Hassett then said, “That’s fucked. You’re fucking joking. You’re fucked.” Mr Hassett thereupon announced was that he was “coming back at lunchtime”. He then left the site.

28    As foreshadowed, Mr Hassett returned and entered the site again at about 12.08 pm. Mr Hassett told Mr Curlewis that he wanted to continue his discussions with the managers and to speak to the “blokes” about the rostered day off. This led to an argument about him speaking to the workers. Despite this disagreement Mr Hassett went into the lunchroom. Mr Proud followed. At this point Mr Proud asked for Mr Hassett’s notice of entry and Mr Hassett said: “Here we go.” When Mr Hassett failed to produce the notice Mr Proud told Mr Hassett to leave the site and advised Mr Hassett that he would be trespassing if he did not leave. Mr Hassett responded saying: “Fuck off.” Mr Proud said that he did not wish to call the police but Mr Hassett goaded him saying: “Call the police, just go ahead and do it.” Initially Mr Proud made a pretence of calling the police but, when Mr Hassett did not leave the site, Mr Proud made a call to the police station. After this Mr Hassett left the site. He did not sign out. He went to his car and completed a notice under s 117 of the WHS Act. Having completed the notice he returned to and entered the site once again where he conducted a safety inspection. He was accompanied by Messrs Julius and Curlewis and site health and safety representatives. No urgent safety issues were identified.

29    When Mr Hassett later left the site, he registered his departure in the visitor’s book at about 1.02 pm. At about this time he told Mr Reynolds, a project manager employed by Hansen Yuncken, that he (Mr Reynolds) was a “fucking cunt”. Mr Reynolds made a diary note which recorded this statement. Mr Proud gave evidence that the note formed part of the records of Hansen Yuncken kept in the usual course of its business. Mr Hassett said that he had advised Mr Reynolds: “Stop being a fucking grub.” This was because, he said, Mr Reynolds had been impeding him from moving through a gate (by standing at the gate and holding it) and had therefore prevented him from signing out in the visitor’s book.

THE LEGISLATION

30    It is convenient at this point to set out some of the provisions in the Act and the WHS Act that are relevant to this proceeding.

31    Section 512 of the 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.

A person to whom such a permit is issued is a “permit holder” for the purposes of the Act: see s 12.

32    Section 484 of the Act relevantly 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 … :

(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.

This is the only section in Subdivision B of Division 2 of Part 3-4.

33    Subdivision C of Division 2 contains a series of requirements which are to be observed by permit holders when exercising rights under Part 3-4. Sections 487 and 489 appear in Subdivision C.

34    Section 487 of the Act relevantly 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:

…

(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 … 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.

…

35    Section 489 of the 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.

36    Section 490(2) provides that a permit holder “may hold discussions under s 484 only during meal times or other breaks.”

37    Section 490(3) of the Act provides that a permit holder may only enter premises, pursuant to the provisions appearing in Subdivision B, on a day specified in the entry notice.

38    Section 486 deals with the consequences of the failure, by a permit holder, to comply with requirements imposed by Subdivision C. It provides that provisions in Subdivision B, including s 484, “do not authorise a permit holder to enter or remain on premises, or exercise any other right, if he or she contravenes this Subdivision … in exercising that right”.

39    Section 494 relevantly provides that:

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 … 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;

…

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.

40    The WHS Act is a prescribed law for the purposes of s 494(3): see Fair Work Regulations 2009 (Cth) reg 3.25 item 5.

41    Section 500 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.

42    Section 500 appears in Part 3-4 of the 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.

43    Section 500 is a civil remedy provision: see s 539.

44    Certain provisions of the WHS Act should also be mentioned. They appear in Part 7 and have some relevance to the Commissioner’s claims arising from Mr Hassett’s conduct on 5 November 2015. The first is s 117. It confers the relevant right for the purposes of s 494(2) of the Act:

117    Entry to inquire into suspected contraventions

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

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

45    Entry by a permit holder, under s 117, is conditioned upon notice requirements (s 119), the permit holder also holding an entry permit under the Act (s 124(a)) and compliance with limits on the timing and place of exercise of the right (ss 126 and 127).

CONTRAVENTIONS OF S 500

46    As already noted, s 500 is a civil penalty provision. That being so the provisions of s 140 of the Evidence Act 1995 (Cth) apply and, in determining whether the elements of a contravention have been proved to the satisfaction of the Court on the balance of probabilities, the Court is required to have regard to the seriousness of the allegations made and the consequences for a respondent of adverse findings being made: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 at [60]-[62] (Flick J).

47    In order to make good his complaints of the various contraventions of s 500 the Commissioner must prove that, on each of the relevant occasions, Mr Hassett:

    was a permit holder;

    was exercising or seeking to exercise rights in accordance with Part 3-4 of the Act; and

    acted in an improper manner.

48    There was no dispute that Mr Hassett was a permit holder under s 512 of the Act at all relevant times, that the construction site was a “premises” within the meaning of the Act (see s 12) and that Hansen Yuncken was the occupier of the site and a constitutional corporation.

49    The provisions of the Act, relied on by the Commissioner, in respect to rights conferred by Parts 3-4, were s 484 and, in respect of the last entry by Mr Hassett on 5 November 2015, s 494(2).

50    I turn first to s 484. It permits a permit holder to enter premises for the purposes of holding discussions with employees who satisfy certain prescribed criteria. An objective test determines whether entry has been effected for the relevant purpose.

51    The “purpose” of a permit holder’s entry is to be assessed objectively having regard to all the circumstances, including a person’s stated purposes in seeking entry: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 (“the Lend Lease Case”). White J there held (at [71]) that:

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

52    In Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147 Charlesworth J rejected a submission that she should not follow White J on this point. Her Honour said that:

109    It was submitted on behalf of Mr Sloane that this passage should not be followed because it advances an objective test for the assessment of a permit holder’s purpose for entering premises. The passage, it was submitted, is inconsistent with the reasons of Dowsett J in [Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88; [2010] FCAFC 90] on appeal, as approved by the Full Court in [Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46; [2016] FCAFC 64]. …

110    I proceed on the basis that the word “purpose” in s 484 of the FW Act is a reference to the subjective purpose of the permit holder and that the enquiry to be undertaken is one involving an assessment of the permit holder’s state of mind. Although it is not necessary for the Director to prove, as an element of a contravention of s 500 of the FW Act, that the workers at the Site objectively had the characteristics prescribed in s 484 of the FW Act, the characteristics of the workers, as understood by the alleged contravenor, will be relevant in determining whether the contravenor exercised or was seeking to exercise a right of entry to premises for the subjective purpose of holding discussions with them: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287, [156]–[158] (White J).

111    It is trite to say that a finding as to a person’s state of mind is a finding of fact to be made upon an assessment of all the surrounding circumstances. Read in the context of his Honour’s reasons for judgment in DFWBII v CFMEU as a whole, I do not understand the passage of White J … to express any principle to the contrary.

53    The prescribed purpose need not be the only purpose which actuates a permit holder: see McDermott at [103], [104] and [115].

54    The term “discussions” is not susceptible to narrow construction. No formality is required and the exchanges between the permit holder and workers may be very brief: see the Lend Lease Case at [72].

55    A right of entry may be effected, pursuant to s 484, without the permit holder having first complied with the requirements of Subdivision C of Division 2 of Part 3-4: see The Laverton North and Cheltenham Premises Case at [2]-[5] (Allsop CJ), [48]-[100] (Tracey J), [179], [181]-[188] (White J). If the permit holder enters a site for the purpose of holding discussions with members who satisfy the criteria prescribed by s 484, he or she may be found to have exercised or to have been seeking to exercise the right of entry: ibid; see also Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2017) 251 FCR 528 at 534-535; [2017] FCAFC 77 at [30]-[31] (Flick J, with whom Besanko and North JJ agreed).

56    I turn next to s 500.

57    The Full Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15 at [39]-[42] (Dowsett, Tracey and Charlesworth JJ) endorsed the decisions in earlier cases that impropriety, for the purposes of s 500, arises if there is “a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case”. This test was adapted from the High Court’s decision in R v Byrnes (1995) 183 CLR 501 at 514-515 (Brennan, Deane, Toohey, Gaudron JJ). See 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]-[107] (Mansfield J).

58    The phrase “act in an improper manner” is to be construed in its normal grammatical sense. In particular, the word “manner” is to be understood as “a way of doing, being done, or happening; mode of action, occurrence, etc” and, as a result, what is said “and its effect, and how [the permit holder] spoke”, all may, potentially, be relevant to the assessment of whether conduct falls under the phrase: see Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (2017) 270 IR 190 at 231; [2017] FCA 847 at [169]-[170] (Barker J); see also the Castlemaine Police Station Case at [41].

59    In the Castlemaine Police Station Case, the Full Court held that the fact that a person to whom offensive language is directed is, by reason of mental strength and fortitude, not intimidated by such conduct does not mean that the conduct is not improper; that fact “can have no bearing on the making of an objective assessment under s 500”: at [45]-[47]. I do not, however, take this to be a finding that it is impermissible for a court to have regard to the effect of the impugned conduct on a recipient when making an objective assessment of whether a permit holder has acted in an improper manner. The fact that a person on the receiving end of certain conduct is shaken or alters their behaviour in a particular way, for example, may be a factor to be taken into account in assessing the propriety of the manner of that conduct: see the Bendigo Theatre Case at [174] (Tracey J).

60    Where, as in cases such as the present, impropriety is alleged to have arisen, in part, from the use of foul language, regard will be had to the status of the permit holder, the rights being exercised and the impact of the language employed on those exposed to it. As the Full Court said in the Castlemaine Police Station Case at [55]:

The propriety of [the permit holder’s] conduct is to be assessed having regard to the circumstance that he had been granted rights by the statute to enter and remain on private property for limited statutory purposes. Viewed in that context, [the official’s] liberal use of swear words is clearly a relevant circumstance bearing on the question of whether his overall conduct was improper. The question of whether his language fairly reflected his passionate opinions is a consideration that may bear on the penalty that might be imposed for the contravention, but it does not bear on the objective assessment of whether he acted in an improper manner.

Even if it be accepted that swearing and the use of foul language is common on construction sites among employees and contractors, it does not, therefore, follow, that similar latitude is to be extended to permit holders when they are exercising rights (and undertaking associated responsibilities) conferred on them by Part 3-4 of the Act.

61    Another question which arises when contraventions of s 500 are alleged is whether a mere failure to comply with one of the requirements in Subdivision C of Division 2 of Part 3-4 is sufficient to support a finding that the section has been contravened.

62    In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 (“the SAHMRI Case”) White J dealt with an allegation that an individual, who was a permit holder and a union official, had entered a site for the purpose of exercising or seeking to exercise rights under s 484 of the Act and had done so without giving any notice under s 487.

63    His Honour accepted that the Byrnes test applied (at [170]-[172]). He then turned (at [173]) to deal with an argument, advanced by counsel for the permit holder, that entry to premises, for a purpose comprehended by s 484, without the giving of prior notice should not be regarded as “improper” because s 487 was not a civil remedy provision. In rejecting that submission his Honour said (at [174]) that:

I do not accept that submission. Section 487 is directed to that which a permit holder must do before entering premises, and not to the consequence of the permit holder entering without having provided notice of entry in accordance with its terms. Further, I am not able to identify any reason why an entry on to premises without there having been antecedent compliance with s 487 may not, in conjunction with other circumstances, amount to improper conduct for the purposes of s 500.

64    His Honour held that the permit holder had acted in an “improper” manner and had contravened s 500. He said (at [178]) that:

On my assessment, however, Mr Kirner’s conduct does warrant being characterised as “improper”, although it is far from being the most egregious conduct of that kind. That is because Mr Kirner entered the site without providing a notice of entry, and without completing all of the formalities in the Visitors’ Book. He thought that he could “get away with it” as he had on previous occasions and, when confronted by Mr Bickerdike, did not leave the site immediately. Instead, he was the cause of an unpleasant interchange.

65    White J’s decision was considered by Charlesworth J in McDermott. Her Honour held (at [119]-[120]) that:

119    In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [173]-[174], White J held that the failure to provide an entry notice in accordance with s 487 of the FW Act constituted acting in an improper manner in exercising or seeking to exercise the right of entry under s 484 of the FW Act.

120    I am mindful that the failure to provide a notice of entry in compliance with s 487 of the FW Act is a circumstance that deprived Mr Sloane of the authorisation to enter the Site under s 484 of the FW Act at all: s 486 of the FW Act. In my opinion, that circumstance does not preclude the Court from categorising his act of entering the Site without such a notice as “improper” within the meaning of s 500 of the FW Act. It is sufficient to found a contravention of s 500 that the permit holder acts in an improper manner when seeking to exercise rights in accordance with Pt 3.4 of the Act, including by seeking to exercise the right of entry conferred under s 484. The word “seeking” in my opinion is broad enough to encompass a circumstance in which a permit holder purports to, or subjectively intends to, exercise a right that he or she objectively does not have.

66    In The Laverton North and Cheltenham Premises Case at [196]-[197] White J said that Charlesworth J had misunderstood his earlier decision and that he did not consider that the conduct in the SAHMRI Case was confined to a mere failure by a permit holder to provide notice prior to entry.

67    There are conflicting dicta, in the authorities, as to whether a failure of a permit holder to comply with one or more of the requirements of Subdivision C of Division 2 of Part 3-4, without more, may constitute acting in an improper manner for the purposes of s 500: see the Bendigo Theatre Case at [149] (Tracey J); The Laverton North and Cheltenham Premises Case at [122] (Tracey J); McDermott at [119]-[120] (Charlesworth J); cf The Laverton North and Cheltenham Premises Case at [7] (Allsop CJ, with whom White J agreed at [200]-[201]).

68    There is, however, clear authority that such non-compliance “in conjunction with other circumstances” may constitute improper conduct for the purpose of s 500: the SAHMRI Case at [173]-[174] (White J); The Laverton North and Cheltenham Premises Case at [7] (Allsop CJ), [123] (Tracey J) and [194]-[199] (White J).

69    A contravention of s 500 may be established even if the relevant conduct does not give rise to any “practical detriment” to those affected by it: see Castlemaine Police Station Case at [31], [48]-[49].

THE COMMISSIONER’S CASE AND THE DEFENCES

70    Stripped to its essentials the Commissioner’s case, in respect of each entry (save the last) by Mr Hassett, was that he had, as a permit holder, entered the project site for the purpose of holding discussions with one or more of the employees who met the criteria prescribed by s 484 of the Act. On each of those occasions he was exercising, or seeking to exercise, rights under s 484 and, in doing so, acted in an improper manner, contrary to s 500 of the Act. In respect of the last entry, the Commissioner’s case was that he had entered while exercising a right under s 494(2) for the purpose of inquiring into a suspected contravention of the WHS Act under s 117 of that Act.

71    The respondents denied that any contravention of s 500 had occurred. In respect of the last entry, they argued that the manner of Mr Hassett’s conduct was not improper. In respect of the other entries, in their written submissions filed after the hearing, they argued that an essential element of s 500 was not satisfied: he was not, on any of those occasions, “exercising, or seeking to exercise, rights in accordance with” Part 3-4 of the Act. He was not acting “in accordance with” Part 3-4 because, by failing to give notice, he had not conformed to the requirements of that Part. He was not “exercising … rights” because, by failing to give notice, he had not satisfied a precondition to the existence and exercise of a right under s 484. Nor was he “seeking” to exercise such a right because the evidence did not show that he held a subjective intention to exercise that right in conformity with Part 3-4. The Commissioner submitted that, as the respondents had not earlier raised these points, they should not now be permitted to rely upon them. The respondents submitted that it was clear from their further amended defence that they contested that this element of s 500 had been satisfied. In any event, these arguments were made in reliance upon the judgment from which an appeal was subsequently allowed by the Full Court in The Laverton North and Cheltenham Premises Case. Those arguments cannot, therefore, succeed.

The 28 July 2015 entry

72    The Commissioner submitted that, on this occasion, Mr Hassett had entered the project site for the purpose of holding discussions with (at least) Mr Pullen, who was an employee of SLC, and who satisfied the criteria prescribed by s 484. There was no dispute that Mr Hassett had failed to give notice to Hansen Yuncken of his proposed entry in accordance with the requirements of s 487 of the Act and to comply with the requirements of subsections 490(2) and (3). The failures to meet these requirements, in each case, the Commissioner contended, amounted to acting “in an improper manner” for the purposes of s 500. The Commissioner also pointed to other aspects of Mr Hassett’s conduct on the site that day (such as using rude and offensive language) which, he argued, also evidenced his acting in an improper manner.

73    The respondents did not seek to challenge all of these assertions. They contended that Mr Hassett had not entered the site for the purpose of holding discussions with an employee and that, as a result, the entry did not occur for a s 484 purpose. They further argued that he was not exercising a right of entry under s 484 because he did not need to do so: Mr Julius had consented to him coming on to the site on the day in question. Mr Hassett had assumed, not unreasonably, it was said, that on 28 July 2015 the “usual practice” of entrance to the site under licence would continue. They also denied that Mr Hassett had acted in an improper manner during his time on the project site on the basis that the word “fuck” and its derivatives were commonly used and were not considered to be offensive on the site.

74    The respondents pleaded that Mr Hassett entered the construction site for the purpose of meeting with a foreman of one of the contractors. He wished to ask the foreman about whether an apprentice, who was working at the site, was permitted to work on weekends. There was a specific denial that Mr Hassett entered the site for the purposes of holding discussions with Mr Pullen and Mr Woolley. The Commissioner did not ultimately press his claim that Mr Woolley had the status of an employee.

75    Shortly after he had entered the site Mr Hassett had discussions with both Mr Sutton and Mr Curlewis. In both of those conversations, Mr Hassett said that he was there to talk to “the blokes”. He then proceeded to have discussions with both Mr Pullen and Mr Woolley about union membership. He did not mention to either Mr Sutton or Mr Curlewis that he wanted to raise an issue with the foreman about an apprentice working at weekends. That issue was not raised until Mr Hassett spoke to Mr Proud as Mr Hassett was preparing to leave the site.

76    I am, accordingly, satisfied that a purpose, if not the sole purpose, of Mr Hassett’s entry to the site on 28 July 2015 was to hold discussions with, relevantly, Mr Pullen. He was, therefore, exercising a right under s 484 of the Act without having complied with the notice requirement, imposed by s 487. He also failed to comply with the requirements under s 490(2) to hold the discussions during a meal time or other break and under s 490(3) to enter only on a day specified in the entry notice.

77    When challenged, by Mr Curlewis, about his asserted right to attend the site to talk to “the blokes” and reminded of his statutory obligations, he responded dismissively, using foul language. Despite being advised, by Mr Sutton, that his failure to give prior notice disentitled him to pursue discussions with workers, he proceeded to do so.

78    Having regard to both the contravention of s 487 and the surrounding circumstances (including his failure to comply with s 490 and his foul language) I find that Mr Hassett contravened s 500 of the Act.

79    I do not accept that Mr Hassett was entitled to enter the site by reason of permission granted, in advance, by Mr Julius (or any other manager) who was employed by Hansen Yuncken prior to the date of his contravention or by an alleged established practice whereby Mr Hassett had, on a number of previous occasions, been able to enter the site without having complied with the requirements of the Act.

80    The lawful exercise of a right of entry under s 484 is conditioned upon satisfaction of requirements (including those imposed by s 487) which are collected in Subdivision C of Division 2 of Part 3-4 of the Act. Compliance with these obligations is mandatory and is not, in my view, susceptible to waiver by the occupiers of premises.

81    In any event, as I have found, Mr Julius did not purport to grant Mr Hassett a right to enter the site without first complying with the Act. Mr Julius was not engaged by Hansen Yuncken or on site until September 2015. Even if Mr Hassett had been granted permissive access on previous occasions (or this occasion) by a manager other than Mr Julius, both Mr Sutton and Mr Curlewis made it clear to Mr Hassett, shortly after Mr Hassett’s entry to the site on 28 July 2015, that his attendance on that day, for the avowed purpose of holding discussions with employees, was not permissible in the absence of a prior notice and without those discussions occurring during a break. Any prior approval (had there been any) was clearly and implicitly withdrawn at this point. Mr Hassett remained determined to proceed with his plans to speak to the workers and chose to disregard the managers’ objections.

The 21 October 2015 entry

82    The issues raised on the pleadings in relation to events on 21 October 2015 are substantially similar to those which have just been considered in relation to the 28 July 2015 entry.

83    The Commissioner submitted that, on 21 October 2015, Mr Hassett had entered the site for the purpose of holding discussions with employees covered by s 484. It was common ground that Mr Hassett had failed to give notice to Hansen Yuncken of his proposed entry. Again, the Commissioner contended, Mr Hassett had contravened ss 487, 490(2) and (3) of the Act. These failures, he submitted, constituted acting “in an improper manner” for the purposes of s 500.

84    The respondents’ defences pleaded that Mr Hassett did not seek to exercise his right of entry under s 484 because Mr Julius had expressly or impliedly given him permission to enter. Such permission was said to have arisen from past dealings between Messrs Hassett and Julius. At trial, however, Mr Hassett’s evidence was that he had entered pursuant to permission granted to him by Mr Proud on 20 October 2015.

85    Mr Proud’s evidence, which is supported by his contemporaneous note, suggests that the prospect of Mr Hassett entering the site on 21 October 2015 was not raised during their telephone conversation on the previous day. Mr Hassett had said that he wished to come the following week to conduct an election and, although he had intimated that he proposed to conduct a safety inspection, he did not identify any particular day on which that was to occur.

86    When Mr Hassett attended in the early morning of 21 October 2015, he told Mr Julius that he wished to have a meeting with employees to discuss working on rostered days off. Mr Julius then asked Mr Hassett if Mr Hassett had a right of entry to talk to the employees. Mr Hassett had said that he had not and Mr Julius then told Mr Hassett that he should not be on the site. Mr Hassett nonetheless went to the lunchroom and held discussions with a number of SLC employees. The discussions took place at a time which was not a meal time or other normal break in work.

87    In these circumstances I am satisfied that Mr Hassett exercised a right of entry under s 484 and that he had failed to satisfy the requirements of ss 487, 490(2) and (3).

88    I reject the respondents’ claim that Mr Hassett had been granted permission to enter the site on that day by either Messrs Julius or Proud. In the conversation he had with Mr Julius, shortly after entering the site, Mr Hassett was asked if he had a right of entry and, when he confirmed that he did not, he was told by Mr Julius that he should not be on the site. Despite this he proceeded to hold discussions with employees.

89    In doing so, in my opinion, he contravened s 500 of the Act. He failed to give prior notice of his entry and failed to enter on a day which had been specified in such a notice. Furthermore, he held discussions at a time which did not coincide with meal or other breaks. He dismissively ignored Mr Julius’s advice that he should not be on the site.

The 5 November 2015 entries

90    Mr Hassett made a series of entries to the site on 5 November 2015. The Commissioner makes complaints about two of these entries: the entry that occurred at about 12.08 pm and the subsequent one which finished at about 1.02 pm. I will refer to these, respectively, as the first and second entries.

91    The Commissioner contended that, on the first occasion, Mr Hassett had sought to exercise his right as a permit holder to hold discussions with employees of SLC. He had entered the site without prior notice and, whilst on the site, had failed or refused to produce his notice of entry when requested to do so. He had also failed to leave the site when asked to do so. The Commissioner also relied on other aspects of Mr Hassett’s conduct, including the use of what he described as rude and offensive language on multiple occasions.

92    The respondents’ defence denied that Mr Hassett was seeking to exercise a right under s 484 on this occasion. Their case was that he had entered the site for the purposes of holding discussions with management representatives about safety issues and not to speak to employees working on the site.

93    I reject this defence. It is clear on the evidence that one of Mr Hassett’s purposes for coming back to the site towards the middle of the day and effecting the first entry was to have discussions with employees engaged on the site. Mr Hassett had foreshadowed coming back for just such a purpose when he spoke to Messrs Julius, Curlewis and Proud earlier in the day. Shortly after he returned at 12.08 pm, Mr Hassett said that he wanted to speak to the “blokes” about working on a rostered day off. Mr Hassett himself accepted that one of his purposes for the first entry on 5 November 2015 was to speak to employees.

94    I, therefore, find that Mr Hassett on this occasion exercised a right of entry under s 484 of the Act and did so without having given the prior notice required by s 487 of the Act. He also failed to comply with s 489(2) when he failed to produce the entry notice when asked to do so by Mr Proud. He rebuffed Mr Proud’s request to leave the site by telling him to “fuck off”. Mr Hassett’s failure to satisfy the requirements of ss 487 and 489, together with his responses when challenged about these failures, including his refusal to leave the site when requested and his offensive language, gave rise to a contravention of s 500 of the Act.

95    I turn next to the second entry on 5 November 2015.

96    Before re-entering the site that afternoon Mr Hassett had prepared a notice which entitled him to enter the site under s 117 of the WHS Act.

97    It was common ground that Mr Hassett had exercised a right of entry under s 494(2) of the Act.

98    The only issue in dispute was whether Mr Hassett had acted in an improper manner when speaking to Mr Reynolds as Mr Hassett was about to leave the site. Mr Hassett’s evidence was that he had referred to Mr Reynolds as “a fucking grub”. Mr Reynolds’ written note attributed to Mr Hassett the words “fucking cunt”. I am satisfied that Mr Hassett used these words rather than those which he claimed to have uttered.

99    The Commissioner contended that, in uttering these words, Mr Hassett had acted in an improper manner. Mr Hassett denied doing so, claiming that the use of such robust language was common place on building sites and involved no impropriety. His language was said to reflect “the idiom” of the site. Mr Hassett had responded to Mr Proud’s “inappropriate and unnecessary act” of calling the police and what was said to be Mr Reynolds’ attempt to prevent Mr Hassett leaving the site.

100    The personal abuse directed at Mr Reynolds by Mr Hassett occurred as Mr Hassett was leaving the site having accomplished all that he had set out to achieve. It amounted to unnecessary and gratuitous abuse. There is no evidence as to Mr Reynolds’ reaction to what was said. I infer, however, that Mr Hassett’s demeanour, as he spoke, was aggressive rather than jocular. His utterance occurred at a time at which, he said, Mr Reynolds was seeking to prevent him from signing out on the visitor register. Mr Hassett did, in fact, sign out that afternoon at about 1.02 pm. Mr Hassett was exercising an important statutory right. The abuse was personal. It was also wholly unnecessary.

101    I consider that Mr Hassett’s conduct, in this instance, breached the standards of conduct that would be expected of a permit holder by reasonable persons who had relevant knowledge of the duties and responsibilities attaching to such an office. Whilst this may not be one of the more egregious acts of impropriety it, nonetheless, constituted a contravention of s 500 of the Act.

THE LIABILITY OF THE CFMEU

102    The Commissioner alleged that the CFMEU was liable for each of Mr Hassett’s contraventions of s 500. He contended that such liability was imposed on the CFMEU by operation of s 550 of the Act. That section 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.

Note:    If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

(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; or

…

103    The Commissioner’s case was that the CFMEU had been “involved in” Mr Hassett’s contraventions by being “knowingly concerned” in them within the meaning of s 550(2)(c). This required him to establish that the CFMEU was an intentional participant in Mr Hassett’s conduct, with knowledge of the essential elements of each contravention: see Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 at [101]-[103] (Charlesworth J).

104    The Commissioner also placed reliance on s 793 of the Act. It provides that:

793    Liability of bodies corporate

Conduct of a body corporate

(1)    Any conduct engaged in on behalf of a body corporate:

(a)    by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)    by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2)    If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)    that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)    that the person had that state of mind.

Meaning of state of mind

(3)    The state of mind of a person includes:

(a)    the knowledge, intention, opinion, belief or purpose of the person; and

(b)    the person’s reasons for the intention, opinion, belief or purpose.

Disapplication of Part 2.5 of the Criminal Code

(4)    Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.

Note:    Part 2.5 of the Criminal Code deals with corporate criminal responsibility.

(5)    In this section, employee has its ordinary meaning.

105    The CFMEU accepted that the statutory fiction, created by s 793, meant that it is to be taken to have engaged in Mr Hassett’s conduct and to have had knowledge of the essential facts relating to his contraventions. It denied, however, that it was knowingly concerned in Mr Hassett’s contraventions for the purposes of s 550(2)(c) of the Act. This was because the Commissioner was required, but had failed, to identify any separate and additional act or omission on the part of the CFMEU which attracted the operation of s 550.

106    This same submission was advanced to and rejected by Charlesworth J in McDermott (No 2). Her Honour said (at [121]-[122]) 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). …

107    Her Honour’s analysis was subsequently endorsed in Australian Building and Construction Commission v Huddy (No 2) [2017] FCA 1088 at [19]-[38] (White J) and in The Gorgon Project Case at [227]-[235] (Barker J). See also Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 at [300] (Flick J).

108    In the present proceeding the physical acts performed by Mr Hassett, which gave rise to his various contraventions of s 500, are to be taken to be the acts of the CFMEU. The findings which I have made in this judgment, in respect of each contravention, established that Mr Hassett knew of all the essential facts which gave rise to his contraventions. His knowledge is to be taken to have been the knowledge of the CFMEU. It was not necessary that the Commissioner go further and identify any separate act or omission on the part of the CFMEU in order to render it liable under s 550.

109    As a result, I find that the CFMEU is liable for the contraventions of s 500 which I have found to have been committed by Mr Hassett.

DISPOSITION

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

Associate:

Dated:    20 July 2018