FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) [2018] FCA 1081

ORDERS

THE COURT ORDERS THAT:

1.    The further hearing of the application be listed at 2.15 pm 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    This proceeding arises from alleged contraventions of the Fair Work Act (2009) (Cth) (“the FW Act”) by the respondents. The proceeding is brought by the Australian Building and Construction Commissioner (“the Commissioner”) against the Construction, Forestry, Maritime, Mining and Energy Union (“the CFMMEU”) and two of its employed officials, Mr Kevin Harkins and Mr Richard Hassett. In 2016 these officials were employed by the Construction, Forestry, Mining and Energy Union (“the CFMEU”). Following a subsequent amalgamation the CFMMEU became the successor to the CFMEU.

2    The alleged contraventions occurred in October 2016 on a road building project on the Brooker Highway near Hobart.

3    Mr Harkins is alleged to have contravened s 494 of the FW Act and Mr Hassett is alleged to have contravened s 500. The CFMMEU is alleged to be liable for these contraventions by its officials.

THE BACKGROUND FACTS

4    The circumstances in which the alleged offending occurred were, for the most part, uncontroversial. As a result of admissions made by the respondents in their further amended defence, which was filed by leave at the commencement of the trial, and unchallenged evidence called by the Commissioner, the following facts were undisputed.

5    The Commissioner:

(1)    was, at the relevant time, a statutory appointee of the Commonwealth, appointed by the Minister for Employment by written instrument pursuant to s 22 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (“the BCIIP Act”);

(2)    is, by operation of s 66(3) of the BCIIP Act, an Australian Building and Construction Inspector; and

(3)    is, by operation of s 111 of the BCIIP Act and s 539 of the FW Act, authorised to bring these proceedings.

6    The CFMMEU (and its predecessor the CFMEU) is and was at all material times:

(1)    an association of employees registered as an organisation pursuant to s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) and, by reason of s 27 of that Act, a body corporate capable of being sued in its registered name;

(2)    an industrial association within the meaning of s 12 of the FW Act, whose membership rules allow membership by persons whose employment consists of, or includes, “building work” within the meaning of s 6 of the BCIIP Act; and

(3)    a building association and a building industry participant within the meaning of s 5 of the BCIIP Act.

7    The second respondent, Mr Harkins, is and was at all material times:

(1)    employed by the CFMEU as an organiser;

(2)    an “officer” of the CFMEU for the purposes of s 12 of the FW Act;

(3)    a “building industry participant” within the meaning of s 5 of the BCIIP Act; and

(4)    the holder of an entry permit under Part 7 of the Work Health and Safety Act 2012 (Tas) (“the WHS Act”) (“a State entry permit”). This permit is in writing and is valid for the period from 6 September 2016 to 6 September 2019.

8    As at 12 and 13 October 2016, Mr Harkins was not 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 (“a Federal entry permit”).

9    Mr Harkins received a certificate issued by the Australian Council of Trade Unions, about the rights and responsibilities of a Federal permit holder, on 5 November 2009. He also received a certificate issued by Unions Tasmania on 10 August 2016.

10    The third respondent, Mr Hassett, is and was at all material times:

(1)    employed by the CFMEU as an organiser;

(2)    an “officer” of the CFMEU for the purposes of s 12 of the FW Act;

(3)    a “building industry participant” within the meaning of s 5 of the BCIIP Act;

(4)    the holder of a Federal entry permit, which is in writing and is valid for the period from 18 March 2016 to 18 March 2019; and

(5)    the holder of a State entry permit, which is in writing and is valid for the period from 11 February 2016 to 11 February 2019.

11    At all material times, Hazell Bros Group Pty Ltd (“HBG”) was:

(1)    the head contractor for the Brooker Highway – Elwick Road to Howard Road upgrade roadwork project (“the project”);

(2)    operating a site office and other facilities associated with the project in the vicinity of 1 Acton Crescent in Goodwood, Tasmania (“the premises”);

(3)    a company incorporated pursuant to the Corporations Act 2001 (Cth);

(4)    a “constitutional corporation” within the meaning of s 12 of the FW Act;

(5)    a “building employer” within the meaning of s 5 of the BCIIP Act;

(6)    a “building contractor” within the meaning of s 5 of the BCIIP Act; and

(7)    a “building industry participant” within the meaning of s 5 of the BCIIP Act.

12    The project was funded by the State and Federal governments and involved construction costs in the vicinity of $21,839,501.20. At all material times, the project consisted of “building work” within the meaning of s 6 of the BCIIP Act. The project consisted of the demolition, construction, alteration and extension of a roadway and associated structures, together with operations preparatory to such work.

13    At all material times, HBG employed the following persons (“the HBG staff”):

(1)    Mr Ian Birchall as the Human Resources Business Partner;

(2)    Mr Jonathon Schwaiger as the Human Resources Manager;

(3)    Mr Jesse Brunskill as the Construction Manager;

(4)    Mr Mathew Prendergast as the Project Safety Advisor; and

(5)    Mr Thomas Finney as the Senior Project Manager.

14    At all material times, HBG contracted with Xite Consulting Pty Ltd to provide project management services to the project, which were provided by Mr James Atkinson.

15    In around late September 2016, Mr Hassett contacted Mr Birchall by telephone and informed him that representatives of the CFMEU would visit various HBG sites in the near future, including the project.

16    On or around 4 October 2016 at around 11.30 am, Mr Harkins visited the premises and spoke to Mr Atkinson. The following occurred:

(1)    Mr Harkins came to the door of the site office at the premises.

(2)    Among other things, Mr Harkins told Mr Atkinson that he wanted “to catch up with the boys … I’m thinking Wednesday next week”.

(3)    Mr Atkinson told Mr Harkins to follow the correct process and asked Mr Harkins if he knew the process for arranging to enter the premises and who to contact.

(4)    Mr Harkins responded with words to the effect that he did understand the process and knew the contact to be Mr Schwaiger.

(5)    Mr Atkinson told Mr Harkins to observe the notification period.

(6)    Mr Harkins responded with words to the effect of: “We don’t need to worry about that bit.”

(7)    Mr Atkinson reiterated that Mr Harkins should follow the process for entering the premises.

(8)    Mr Harkins left the premises immediately after the conversation with Mr Atkinson.

17    On or around 5 October 2016 at around 11.00 am, Messrs Brunskill and Schwaiger attended a meeting with Messrs Harkins and Hassett. The meeting was held at a CFMEU office in New Town, Tasmania. The meeting was held to discuss pay rates on another HBG project.

(1)    During the meeting, Mr Harkins said words to the effect that he had arranged to attend the project on the following Wednesday to discuss renewal of the enterprise agreement.

(2)    Mr Harkins stated that Mr Atkinson had invited him to visit the premises.

(3)    Mr Schwaiger stated that HBG would require Messrs Harkins and Hassett to follow the right of entry provisions in the FW Act, the Building Code and the relevant regulations.

(4)    Mr Harkins said words to the effect of:

“You know we don’t do that. My boss is bigger than your boss. This is a bullshit law and why would we comply with it?”

“We can get around it. We can be a pain in the arse.”

(5)    Mr Hassett said words to the effect of:

“We don’t have problems with compliance, you can invite us on. We don’t recognise the Code and you know you’re not going to get Right of Entry notices so you’re just causing a fight.”

“You don’t want to get on the bad list.”

18    On or around 5 October 2016 Mr Harkins informed Messrs Brunskill and Schwaiger that:

(1)    he had been invited onto the premises for the purposes of having discussions with the workers; and

(2)    Mr Atkinson had agreed to Messrs Harkins and Hassett visiting the premises the following Wednesday to hold discussions with employees.

19    At around 2.41 pm on 5 October 2016, Mr Schwaiger sent an email to the CFMEU and Messrs Harkins and Hassett about their proposed visit. Mr Schwaiger wrote that:

(1)    Mr Atkinson had denied inviting Messrs Harkins and Hassett onto the premises, but had stated that there would be no issue if the right of entry process was followed; and

(2)    the FW Act right of entry provisions applied to the project.

20    On 12 October 2016, Mr Harkins and Mr Hassett attended at and entered the premises. Mr Hassett did not give notice to HBG in accordance with s 487 of the FW Act. Neither HBG nor any of its employees or representatives received a notice from Mr Hassett or anyone on his behalf in respect of this entry. Nor did Mr Hassett give any notice of entry to HBG in accordance with s 122 of the WHS Act.

21    At around 12.30 pm on 12 October 2016, Mr Schwaiger saw them arrive at the site carpark and walk up to the site office. They proceeded to enter the building site without permission.

22    On entering the premises, Mr Hassett used insulting, demeaning, indecent and profane language, and acted in an aggressive and demeaning manner towards HBG staff (“the abuse”).

(1)    Mr Hassett said to Mr Harkins about Mr Schwaiger words to the effect of:

“As soon as I saw him walking in I knew we would have trouble. He has always been trouble.”

“He is a fuckin’ incompetent cunt. Always using his words to push the code compliance and Fair Work bullshit to me.”

(2)    Mr Hassett then said to Mr Schwaiger words to the effect of:

“Other companies let us on. You are the only ones being pricks.”

“Don’t make me get angry Jon I’m sick of your bullshit.”

“You’re an idiot Jon. Why are you here Jon? We do have a safety issue. We’re going onto the site to talk to the workers about it.”

“We will do it the hard way. I am advising you that we are here for safety breaches as there is a fuckin’ safety issue on this site.”

“Oh fucking shit. This place is hopeless. Toilets leaking sewerage everywhere. Fucking disgrace. Look leaking taps. I’m closing the amenities fucking down. What do you say to that little Johnnie? God you are a dickhead. Fucking incompetent cunt.”

“How come your hair looks like it does all the time. Johnnie fuckin’ perfect. It’s a toupee I bet.”

(3)    Mr Hassett said to workers present on the premises, referring to the switchboard, words to the effect of: “Shut it down. Fucking gold. This is great.”

(4)    Mr Hassett said to Mr Schwaiger words to the effect of: “You know nothing Schwaiger. You’re not an electrician. You’re just a stupid cunt. This is great to find.”

(5)    Mr Hassett said to Mr Harkins, in the presence of Schwaiger, words to the effect of: “Look at his hair. He looks like a stupid cunt.”

(6)    Mr Hassett then said to Mr Schwaiger words to the effect of:

“I bet you hair is a toupee. Stupid HR dickhead.”

“I fuckin’ have all the power, you HR dick don’t know the regulations or OHS.”

(7)    After turning off the power, Mr Hassett said in Mr Schwaiger’s presence words to the effect of:

“I shut it fucking down. There is no power and so everyone has to go fucking home. Thank you incompetent dick-fuck Johnnie. Little Johnnie fucks himself up.”

(8)    Mr Hassett said to Mr Harkens, in the presence of Mr Schwaiger: “Told ya he’s incompetent. Hadn’t known HB had plumbers as employees.”

(9)    Mr Hassett said to Mr Schwaiger words to the effect of: “You’re incompetent.”

23    Various persons present stated objections to the abuse:

(1)    Mr Harkins said to Mr Hassett words to the effect of: “By the way Richie, watch some words in your language a bit. There are some women here.”

(2)    Mr Schwaiger said to Mr Hassett words to the effect of:

“Yes Richie. Please do not use that language. It is not appropriate.”

“Please do not use that language. I have asked you before. It is not appropriate.”

“Please do not use foul language. I have asked you numerous times. There is no need. It is offensive.”

“Richie please do not keep swearing abuse. It’s not acceptable, Richie, in a workplace.”

(3)    Mr Schwaiger said to Mr Hassett and Mr Harkins words to the effect of:

“I am not particularly phased by immature, offensive, personal attacks and nasty malicious behaviour towards me, but it is unlawful bullying and wrong and we do not have to tolerate it and there are other people here who can be offended too.”

24    Mr Hassett continued with the abuse after the objections were made. By the abuse, Mr Hassett disrupted Messrs Schwaiger and Prendergast for approximately two hours from any other work at the premises. Mr Hassett and Mr Harkins remained on the premises for approximately two hours. They attended different areas of the building site. Messrs Schwaiger and Prendergast were required to follow and attend to Mr Hassett during this time. At one point during the visit, Mr Harkins said to Mr Finney words to the effect of: “We’ll be back in the morning to check that the work has been done.”

25    On 13 October 2016, Messrs Harkins and Hassett entered the premises once more. Mr Finney observed their entry. While he was on the premises Mr Harkins:

(1)    walked to the switchboard and inspected it briefly;

(2)    stated to Mr Finney words to the effect of: “This is what it should have looked like in the first place”; and

(3)    departed the premises immediately on completing his inspection of the switchboard.

26    The respondents also relied, in their submissions, upon the fact that neither Mr Harkins nor Mr Hassett had given notice under s 119 of the WHS Act in relation to any safety issues on either day. The fact that such notices were not given was not challenged by the Commissioner.

27    There were a few other relevant factual matters which were also not among those expressly agreed by the parties to not be in dispute. I have referred to these matters below.

28    Two factual issues were contested at trial. The first related to whether or not Messrs Harkins and Hassett showed Mr Schwaiger their State WHS entry permits while they were on the premises on 12 October 2016. The second dispute was whether it was Mr Hassett or Mr Schwaiger who had first raised the question of site safety on 12 October 2016. I will return to these matters shortly. It is first, however, necessary to say something about the course of the trial.

THE EVIDENCE AT TRIAL

29    Prior to the trial the Commissioner filed outlines of evidence from Messrs Schwaiger, Brunskill, Birchall, Atkinson, Prendergast and Finney.

30    The respondents required Messrs Schwaiger and Finney to attend and give oral evidence at trial. Each gave evidence and was cross-examined.

31    The respondents also wished to have Mr Prendergast attend Court and give evidence. As a result of a family medical emergency Mr Prendergast was unable to do so. The parties agreed that some of the material contained in his witness statement, provided to the Commissioner on 23 November 2016, should be admitted into evidence and the subpoena, requiring his attendance, was discharged.

32    As a result of the admissions made by the respondents the Commissioner no longer needed to call or rely upon the evidence of Messrs Brunskill and Birchall. Mr Atkinson was not required to give evidence and the parties agreed that his witness statement should stand as his evidence subject to the omission of part of one paragraph which was not read.

33    The respondents tendered documentary evidence relating to the permits held by Messrs Hassett and Harkins and training undertaken by them in relation to the exercise of rights of entry.

34    No oral evidence was called on behalf of the respondents.

35    In light of the agreement between the parties of the facts recorded above, it is largely unnecessary to refer to the evidence given at trial by these witnesses. I do, however, note the following further findings which supplement those facts which were not in dispute.

36    Mr Schwaiger gave the following evidence, which I accept, about the entry by Messrs Hassett and Harkins to the premises on 12 October 2016:

(1)    They advised the managers that they were there to hold discussions with employees.

(2)    Mr Schwaiger told them that they could not hold discussions as they had not given a right of entry notice under the FW Act.

(3)    They said that they were present to deal with safety issues. They did not, at that point, identify any particular safety issues.

(4)    Mr Hassett said, “We will do it the hard way, I am advising you that we are here for safety breaches as there is a fuckin’ safety issue on this site” (which was not disputed). Mr Harkins made statements to the same effect.

(5)    Mr Schwaiger asked Mr Hassett to identify the specific issue and queried whether he was making up this claim.

(6)    Mr Harkins said that he had seen “safety issues” from the street, that they would find more when they went on a “safety walk”, that he would commence that walk now and then convey those issues to Mr Schwaiger.

(7)    Mr Harkins told Mr Schwaiger that:

“This could have been easy, 15 minute chat with the blokes, tell them what the construction industry in Tas is going to be paying. But no, you are the only one that sticks to this Fair Work shit. You may as well call the police if that’s what you are going to do.”

(8)    Messrs Harkins and Hassett inspected the site and identified alleged safety faults in relation to the toilet block, crib room and the switchboard. Mr Harkins called the regulator to deal with the switchboard issue. Mr Hassett turned the power switch off.

(9)    Mr Harkins’ comment that, “We’ll be back in the morning to check the work has been done”, which was not disputed, was made in relation to the switchboard.

(10)    The abusive words spoken by Mr Hassett to Mr Schwaiger (which were not disputed) were, at times, spoken in an aggressive manner which involved shouting. Mr Hassett’s body language was, at times, “in his face”; he was very close to Mr Schwaiger and pointed at him.

(11)    Mr Schwaiger felt intimidated by Mr Hassett’s behaviour. He felt anxious and his heart rate increased. He slept poorly on a number of nights following that day. His heart rate increased when he saw Mr Hassett on subsequent occasions at the premises.

THE DISPUTED FACTS

37    Mr Schwaiger gave evidence that both Mr Hassett and Mr Harkins had showed him their State WHS permit cards while they were on the premises on 12 October 2016. This evidence was given in his first witness statement provided to the Commissioner’s predecessor on 21 October 2016 and was confirmed in the course of his evidence-in-chief at trial, where he stated that these cards were laminated and worn in lanyards around their necks. In a second statement dated 12 July 2017 Mr Schwaiger said that he had asked Mr Hassett for his Federal permit, which Mr Hassett had shown to him. This occurred at the same time that Mr Harkins provided him with his work WHS card. He recalled in his second statement that Mr Hassett was wearing his WHS card around his neck.

38    The respondents invited the Court to reject Mr Schwaiger’s evidence on this issue and to find that there was no evidence that either Mr Harkins or Mr Hassett had shown Mr Schwaiger his WHS permit on 12 October 2016.

39    This challenge to Mr Schwaiger’s evidence was founded on credit grounds. It was said that his evidence relating to the production of the permits should not be accepted because:

    He made supposedly inconsistent accounts in his two statements.

    He failed, in the first witness statement, to mention that he had asked Messrs Hassett and Harkins to produce their Federal right of entry permits and that Mr Hassett had responded by handing him a scrunched up piece of paper that appeared to be a permit.

    Mr Schwaiger had not been frank about his reasons for attending the work site on 12 October 2016. His evidence in his first witness statement was that he had attended the premises on that day because he had arranged to undertake a site tour and talk to the workers generally with other human resources personnel. This was said to be inconsistent with evidence, given by Mr Prendergast, that Mr Schwaiger had told him that morning that “some union officials might be visiting the site that day”.

    He had not stated in his first witness statement that he was on the premises on 12 October 2016 because of the anticipated visit by Messrs Harkins and Hassett.

40    I do not consider that this evidence was inconsistent or that, even if it was, it provides a reason for rejecting Mr Schwaiger’s evidence that both Mr Harkins and Mr Hassett showed him their WHS permits on 12 October 2016. In particular Mr Schwaiger’s initial failure to record that he was at the premises on that day because of a possible visit by representatives of the CFMEU is not indicative of any lack of candour. Furthermore, the fact that Mr Hassett (or Mr Harkins) was wearing his permit around his neck does not tend against a finding that it was shown to Mr Schwaiger.

41    I accept Mr Schwaiger’s evidence that both Mr Harkins and Mr Hassett showed him their State WHS permits at the premises on 12 October 2016.

42    The second issue in dispute was whether it was Mr Schwaiger or Mr Hassett who had first raised the question of site safety in the course of their discussions on 12 October 2016. Mr Schwaiger gave evidence that it was Mr Hassett who had first raised the issue. This was said to be inconsistent with Mr Prendergast’s evidence that:

Schwaiger said “Unless you have a safety issue, you are not going on to the site.”

Harkins replied “We do have a safety issue Jon. We’ve got one. We’re going out on to the site to discuss it with the workers.”

43    I do not regard Mr Prendergast’s evidence to be inconsistent with that given by Mr Schwaiger. Even on Mr Prendergast’s account Mr Schwaiger did not suggest there were any safety concerns on the premises. It was Mr Harkins who asserted that such concerns existed and thereby sought to justify his and Mr Hassett’s entry to the premises on safety grounds. In any event nothing turns on who first mentioned safety on 12 October 2016.

THE ISSUES

44    The parties agreed that four issues arose for determination. They were:

(1)    Did Mr Harkins, who admits he was not a Federal permit holder, exercise a right under the WHS Act to enter the premises on 12 and 13 October 2016 in contravention of the prohibition in s 494(1) of the FW Act?

(2)    Did Mr Hassett, who admits he was a Federal permit holder, exercise or seek to exercise rights in accordance with Part 3-4 of the FW Act on 12 October 2016?

(3)    If the answer to question (2) is “yes”, did Mr Hassett act in an improper manner in contravention of s 500 of the FW Act?

(4)    Is the CFMMEU liable for any breaches committed by Messrs Harkins and Hassett?

THE LEGISLATION

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

46    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.

A person to whom such a permit is issued is a “permit holder” for the purposes of the FW Act: see s 12. The acronym “FWC” refers to the Fair Work Commission.

47    Section 484 of the FW Act relevantly provides as follows:

Subdivision B—Entry to hold discussions

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.

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

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

48    Section 486 of the FW Act provides:

486    Permit holder must not contravene this Subdivision

Subdivisions A, AA and B do not authorise a permit holder to enter or remain on premises, or exercise any other right, if he or she contravenes this Subdivision, or regulations prescribed under section 521, in exercising that right.

49    Section 487 of the FW Act relevantly provides:

487    Giving entry notice or exemption certificate

Entry under Subdivision … 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.

…

50    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.

51    Section 494 appears in Division 3 of Part 3-4 of the FW Act. It 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, 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;

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.

52    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.

53    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.

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).

54    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.

55    Sections 494 and 500 are civil remedy provisions: see s 539.

56    Some provisions of the WHS Act are also relevant. Reference should be made to the following sections which appear in Part 7 of that Act. Section 117 provides:

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.

57    The term “relevant worker” is defined, in s 116, to mean a worker:

(a)    who is a member, or eligible to be a member, of a relevant union; and

(b)    whose industrial interests the relevant union is entitled to represent; and

(c)    who works at that workplace.

58    A “relevant union” is defined in the same section to mean “the union that a WHS entry permit holder represents”.

59    Section 118 provides:

118    Rights that may be exercised while at workplace

(1)    While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act:

(a)    inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;

(b)    consult with the relevant workers in relation to the suspected contravention;

(c)    consult with the relevant person conducting a business or undertaking about the suspected contravention;

(d)    require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that —

(i)    is kept at the workplace; or

(ii)    is accessible from a computer that is kept at the workplace;

(e)    warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk.

(2)    However, the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.

(3)    A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d).

WHS civil penalty provision.

Penalty: In the case of –

(a)    an individual, a fine not exceeding $10 000; or

(b)    a body corporate, a fine not exceeding $50 000.

(4)    Subsection (3) places an evidential burden on the defendant to show a reasonable excuse.

Notes

1    At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking. See section 120.

2    The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth.

60    Section 119 provides:

119    Notice of entry

(1)    A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this Division, give notice of the entry and the suspected contravention, in accordance with the regulations, to –

(a)    the relevant person conducting a business or undertaking; and

(b)    the person with management or control of the workplace.

(2)     Subsection (1) does not apply if to give the notice would –

(a)    defeat the purpose of the entry to the workplace; or

(b)    unreasonably delay the WHS entry permit holder in an urgent case.

(3)    Subsection (1) does not apply to an entry to a workplace under this Division to inspect or make copies of documents referred to in section 120 .

61    Section 121 and 122 appear in Division 3 of Part 7 of the WHS Act:

Division 3 — Entry to consult and advise workers

121    Entry to consult and advise workers

(1)    A WHS entry permit holder may enter a workplace to consult on work health and safety matters with, and provide advice on those matters to, 1 or more relevant workers who wish to participate in the discussions.

(2)    A WHS entry permit holder may, after entering a workplace under this Division, warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk.

122    Notice of entry

(1)    Before entering a workplace under this Division, a WHS entry permit holder must give notice of the proposed entry to the relevant person conducting a business or undertaking.

(2)    The notice must comply with the regulations.

(3)    The notice must be given during the usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry.

62    Sections 124 to 127 appear in Division 4 of the WHS Act which provides for “requirements for WHS entry permit holders”. Those sections provide:

124    WHS entry permit holder must also hold permit under other law

A WHS entry permit holder must not enter a workplace unless he or she —

(a)    also holds an entry permit under the Fair Work Act relevant to that workplace; or

(b)    is entitled to enter that workplace pursuant to section 77 of the Industrial Relations Act 1984.

WHS civil penalty provision.

Penalty:    Fine not exceeding $10 000.

125    WHS entry permit to be available for inspection

A WHS entry permit holder must, at all times that he or she is at a workplace under a right of entry under Division 2 or 3 of this Part, have his or her WHS entry permit and photographic identification available for inspection by any person on request.

WHS civil penalty provision.

Penalty:    Fine not exceeding $10 000.

126    When right may be exercised

A WHS entry permit holder may exercise a right under Division 2 or 3 of this Part only during the usual working hours at the workplace.

WHS civil penalty provision.

Penalty:    Fine not exceeding $10 000.

127    Where the right may be exercised

A WHS entry permit holder may exercise a right of entry to a workplace only in relation to —

(a)    the area of the workplace where the relevant workers work; or

(b)    any other work area that directly affects the health or safety of those workers.

LIABILITY OF MR HARKINS

63    The Commissioner’s pleaded case was that Mr Harkins entered the premises on 12 October 2016 for the purposes of:

(a)    holding discussions with one or more employees performing work at the Premises in accordance with section 484 of the FW Act; and/or

(b)    exercising a State or Territory OHS right within the meaning of subsection 494(2) of the FW Act … by inquiring under ss 117 and 118 of the WHS Act into suspected contraventions of the WHS Act.

64    There followed a general allegation that:

By attending at and entering the Premises on 12 October 2016 Harkins exercised, or sought to exercise, rights in accordance with Part 3-4 of the FW Act.

65    It was alleged that, in entering under his WHS Act permit without holding a Federal entry permit, Mr Harkins had contravened s 494(1) of the FW Act. No allegation was made of any contravention by him arising from his alleged entry for the purposes of s 484 of the FW Act.

66    Similar allegations were made in respect of Mr Harkins’ attendance at the premises on 13 October 2016 save that no reliance was placed on entry for the purposes of s 484.

67    The Commissioner submitted that the evidence established that, on both days, Mr Harkins had entered the premises for the purpose of inquiring into suspected safety contraventions. He relied on various statements made by Mr Harkins and on some of his conduct whilst on site.

68    In respect of Mr Harkin’s alleged purpose in making the 12 October 2016 entry the Commissioner relied on:

    Mr Harkins’ statement to Mr Schwaiger that he (Mr Harkins) had seen “safety issues” from the street, that he would find issues when he walked around the site and that he was going to go for a “safety walk”. Once that was done he would tell Mr Schwaiger what the safety problems were.

    Mr Harkins’ statement to Mr Schwaiger that he and Mr Hassett were at the premises because of a safety issue.

    When advising Mr Schwaiger that he was present on site to deal with safety breaches he showed Mr Schwaiger his State WHS entry permit.

    Mr Harkins had inspected the site, found safety faults, including with the switchboard, and called the regulator to deal with this alleged issue.

69    In respect to Mr Harkins’ entry on 13 October 2016 the Commissioner referred to:

    Mr Harkins’ statement to Mr Finney on 12 October 2016, that “we’ll be back in the morning to check the work has been done”, which was made in relation to the switchboard.

    Mr Harkins return to the premises on 13 October 2016 when he inspected the switchboard and told Mr Finney that, “This is what it should have looked like in the first place”.

70    The respondents’ first, and most fundamental objection to the Commissioner’s case was that the Commissioner could not establish a contravention of s 494(1) of the FW Act by Mr Harkins because he could not demonstrate that Mr Harkins, on either day, had lawfully exercised a State OHS right.

71    The respondents’ other defences to the Commissioner’s allegations against Mr Harkins were that the Commissioner’s pleaded case was deficient and that, in any event, the evidence did not support adverse findings.

72    The respondents noted that the exercise of a State OHS right of entry, conferred by s 117(1) of the WHS Act, was for a narrower purpose than that pleaded by the Commissioner. It was not sufficient to plead that the relevant purpose was one of “inquiring into suspected contraventions of the WHS Act”; the suspected contravention had to relate to or affect “a relevant worker” as defined in s 116 of that Act. The Commissioner was thus required, but had failed, they submitted, to plead or establish that there was any member of the CFMEU or any worker eligible to be a member of that union working at the premises when the entry occurred.

73    A further alleged deficiency in the Commissioner’s pleading was the absence of any allegation that Mr Harkins knew or thought that there were “relevant workers” at the premises on the two days.

74    In addition, it was objected that the Commissioner had failed to plead that Mr Harkins reasonably suspected, before he had entered the premises on the two days, that a contravention of the WHS Act had occurred or was occurring: see s 117(2) of the WHS Act.

75    The respondents submitted that the evidence, adduced by the Commissioner, did not establish that, when Mr Harkins entered the premises on 12 October 2016, he suspected that any contravention of the WHS Act that related to or affected a relevant worker had occurred or was occurring and that he had a reasonable basis for so suspecting.

76    On the contrary, the respondents contended that the evidence did not support the Commissioner’s case. That contradictory evidence relating to 12 October 2016 was that:

    At the meeting on 5 October 2016, in the union office, Messrs Hassett and Harkins had said that they would not, on their proposed visit to the premises, be complying with right of entry requirements which they branded as “a bullshit law”. No mention had been made at that meeting of any health and safety issue at the site.

    Once Messrs Hassett and Harkins had entered the premises on 12 October 2016 they advised the managers that they were there to hold discussions with employees. It was only after they had been told by Mr Schwaiger that they would not be permitted entry, because they had not complied with notice requirements under the FW Act, that Mr Harkins told Mr Schwaiger that:

“This could have been easy, 15 minute chat with the blokes, tell them what the construction industry in Tas is going to be paying. But no, you are the only one that sticks to this Fair Work shit. You may as well call the police is that’s what you are going to do.”

    It was only after this exchange, and after Messrs Hassett and Harkins had been on the premises for some 10 minutes, that Mr Hassett said that the two officials were present to deal with safety issues and that there was a safety issue at the site. When asked what that issue was neither Messrs Hassett or Harkins identified any such issue. Mr Schwaiger accused them of making a bogus claim. It was only then that the two officials said that they had observed an issue from the street and on any inspection they would find one.

    Messrs Hassett and Harkins subsequently identified two safety issues. They related to the water supply in the toilet block and crib room and electrical problems centred on the switchboard. Neither of these alleged faults could have been observed from outside the premises.

77    The evidence relating to Mr Harkins’ entry on 13 October 2016 disclosed that he had entered the premises and walked directly to the switchboard, examined it, and made the comment about it looking like what it should have done on the previous day. He then left the premises.

No contravention of s 494

78    Section 494(1) of the FW Act provides that an official of an organisation, such as Mr Harkins, must not exercise a State or Territory OHS right unless he or she is a permit holder under s 512 of the FW Act.

79    The relevant State OHS right, said to have been exercised by Mr Harkins on the two days, was identified by the Commissioner as a right conferred by ss 117 and 118 of the WHS Act.

80    It was common ground that Mr Harkins was not, at relevant times, a permit holder under the FW Act. In addition, there was no dispute that Mr Harkins had failed to give any notice of his entry on either day, as required by s 119 of the WHS Act. As he did not hold an entry permit, granted under the FW Act, Mr Harkins would also appear to have contravened s 124(a) of the WHS Act.

81    These failures to comply with notice requirements meant, so it was argued, that entry had not been effected pursuant to s 117 on either day and that, accordingly, no relevant exercise of a right had occurred for the purposes of s 494(1) of the FW Act. This was because s 494(1) was to be construed as applying only to lawful exercises of State OHS rights and that Mr Harkins’ failure to comply with notice requirements, prescribed by the WHS Act, rendered any purported exercise of State OHS rights of entry unlawful.

82    Support for this contention was said to be found in decisions of Full Courts of this Court in Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470; [2017] FCAFC 89 and Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46; [2016] FCAFC 64 and in an earlier decision, endorsed in Bragdon, of Moore J in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) (2009) 178 FCR 461; [2009] FCA 645.

83    The question which arose in Powell was whether a union official, who did not hold a permit under the FW Act but who had been invited to come onto a construction site to assist a union health and safety representative working on the site, could exercise a State OHS entry right. The Full Court held that s 494(1) precluded him from doing so. The invitation was provided for in the State legislation (s 58(1)(f) of the Occupational Health and Safety Act 2004 (Vic)) and another provision of that Act, s 70, imposed an obligation on an employer to allow the person assisting the health and safety representative to have access to the relevant worksite. This, it was held, gave the assisting person a right of entry.

84    In passages relied on by the respondents the Full Court in Powell held (at 476-477 [29]-[30]) that:

29    The relevant question is whether Mr Powell (as an official of an organisation as defined in the FW Act) exercised a State or Territory OHS right. Inserting the meaning of the phrase “State or Territory OHS right” from s 494(2), the question is whether Mr Powell exercised a right to enter premises that is conferred by the 2004 Victorian Act.

30    The answering of that question requires the FW Act, and in particular s 494 to be construed, but also requires ss 58(1)(f) and 70 of the 2004 Victorian Act to be construed and characterised to decide whether there is “a right to enter premises” conferred by that Act, in accordance with the meaning of that phrase in the FW Act.

85    Later in its reasons the Court said (at 481-482 [57] and [59]) that:

57    To apply the words of s 494(1) and (2) to the operation of ss 58(1)(f) and 70 of the 2004 Victorian Act in no way undermines the statutory object of s 494 and Pt 3-4 set out in s 480. Indeed it reinforces it. The plain purpose is to regulate by permit the lawful entry of officials of organisations on to workplace sites in respect of rights of entry given by Commonwealth, State or Territory legislation. There is no reason of policy or commonsense why one would distinguish between differently worded conditions that by their operation provided a right to enter premises for occupational health and safety reasons, to require a permit if the official has a reasonable suspicion of a contravention of a State or Territory or Commonwealth law about occupational health and safety, but not to require a permit if the official is asked to assist an HS representative deal with an issue about occupational health and safety, which may or may not have a connection with such a contravention.

…

59    The plain words of s 494(1) and (2) and the construction of ss 58(1)(f) and 70 of the 2004 Victorian Act mean that Mr Powell as an official of an organisation required a permit under the FW Act to enter the premises because he was exercising his right to enter the premises or the HS representative’s right to have him enter the premises to assist the HS representative in his task.

86    The respondents directed particular attention to a question posed about whether the official had “exercised a right” conferred by the Victorian OHS legislation (at [29]) and the reference to “lawful entry” (at [57]).

87    Neither passage supports the respondents’ argument. The “right” referred to in s 494(1) is a right to enter premises which is conferred by a State OHS law: see s 494(2). That is the right referred to by the Full Court in Powell at [29]. In identifying the purpose of the section (“to regulate by permit the lawful entry of officials”) the Full Court (at [57]) is not to be understood as determining that a failure by a State permit holder to give prior notice of his or her entry to premises removes his right of entry under the State OHS law, such that s 494(1) is not engaged. This is so even if a failure to give notice might make the exercise of that right entry “unlawful” in the sense that the State laws regulating its exercise (such as a requirement to give notice) have not been complied with. The right continues to subsist. The issue presently under consideration was not squarely raised in Powell.

88    In Bragdon, two union organisers entered a worksite and directed workers to stop a concrete pour because it was said to be unsafe. Neither official held a permit, granted under the New South Wales equivalent of the WHS Act. Although they held Federal permits there was no evidence that they were seeking entry under s 484. At no point did either organiser assert that he was exercising any rights under the FW Act or the New South Wales WHS Act. Each repeatedly ignored requests to produce their entry permits.

89    They were alleged to have contravened ss 497, 500 and 503 of the FW Act. Section 497 provided that a permit holder “must not exercise a State …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 …”. The Court held that s 497 had not been infringed. This was because the failure or refusal of an official to produce a Federal entry permit when asked operated as a bar to the exercise, by the official, of a State OHS right, but it did not provide a separate or independent foundation for the imposition of a civil penalty under the FW Act (at [40]). The Court also found that s 500 had not been infringed because that section was only engaged where a person, as a matter of fact, exercises or seeks to exercise a State OHS power. The two officials did not have any right to exercise such a power and they did not assert, mistakenly or otherwise, that they had such a right.

90    In the course of the Court’s reasons it referred to John Holland with approval. In a passage, on which the respondents relied, the Court in Bragdon said (at 55-56 [48]-[51]) that:

48    In John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (NSW Branch) (2009) 178 FCR 461 (John Holland), Moore J discussed Pine v Doyle and distinguished it. Moore J found that two union organisers did not have relevant entry permits under the Occupational Health and Safety Act 2000 (NSW). In those circumstances, his Honour found (at [50]):

50    In my opinion, there are material differences between the provisions Merkel J considered in Pine and those that arise in the present case. Section 756 identifies a class of union official upon whom Div 5 operates with the effect of the Division being to impose conditions on the exercise of the right of entry and to prohibit certain conduct when exercising it. That class of union official is constituted by those who hold a permit under Pt 15 and have a right to enter under an OHS law. The existence of the right to enter under an OHS law confers a legal status on the permit holder which engages various provisions in Div 5. It is unlikely that the provisions which limit the way in which the right of entry might be exercised were intended to operate in relation to a union official who did not have that status because they did not have (though they may have mistakenly believed they did) a right to enter under an OHS law. In particular, s 758 is not intended to operate on a permit holder who does not have a right of entry under an OHS law. The section contemplates that the person on whom it operates might enter or might remain on premises “under an OHS law” but shall not enter or shall not remain if a reasonable request is made by the occupier. If the request is not complied with then the permit holder contravenes the section. In my opinion, there was no contravention of s 758 by either respondent.

49    His Honour went on (relevantly to matters to be discussed shortly):

51    This leads to a consideration of whether there was contravention of s 767 which provides:

(1)    A permit holder exercising, or seeking to exercise, rights:

(a)    under section 747, 748 or 760; or

(b)    under an OHS law in accordance with section 756 or 757;

must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

(2)    Subsection (1) is a civil remedy provision.

Note:    See Division 8 for enforcement.

(3)    …:

52    The applicants contend that the second and third respondents acted in an improper manner by entering the premises when permission to enter was denied and remaining on the premises when requested to leave. It can be seen that a permit holder can contravene this section by intentionally hindering or obstructing a person or acting in an improper manner in exercising or seeking to exercise rights under an OHS law in accordance with, relevantly, s 756. But as just discussed, s 756 operates on a person who has a right under an OHS law and, in that sense, identifies a person with a particular status on whom Div 5 operates. In my opinion it necessarily follows that the prohibition on, amongst other things, acting in an improper manner, concerns only a person with that status.

53    I accept that this construction of ss 756, 758 and 767 results in the various prohibitions or limitations not providing the complete protection of the type discussed by Merkel J in Pine (at [16] set out above). However in that matter the critical expression was “[a] a person exercising powers under [various provisions]”. His Honour was able to conclude that a person can be exercising those powers even if they were mistaken in believing that the power had been lawfully conferred by those other provisions. In the present case the language and structure of the various provisions are different. A person is given a status by virtue of having a right conferred by state law. It is only then that various consequential provisions are engaged.

54    In my opinion the second and third respondents could not have contravened and did not contravene ss 758 and 767 because neither had a right to enter premises under an OHS law.

50    A similar approach may be seen in the analysis in different proceedings in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 (per Spender J at [12], per Dowsett J at [41]).

51    In the present case the primary judge expressly preferred the approach taken by Merkel J in Pine v Doyle, to that of Moore J in John Holland. In our respectful view, that was an error.

91    The respondents contended that Bragdon and John Holland supported the proposition that s 494(1) of the FW Act only prevented officials who were not Federal permit holders from exercising State or Territory OHS entry rights if those rights were otherwise being exercised in a lawful way, that is, in compliance with all of the relevant requirements under the FW Act and State or Territory legislation.

92    It is first to be observed that the decisions in Bragdon and John Holland turned on the status (or lack of it) of the union officials involved. In neither case, unlike the present, did the officials hold rights of entry under State OHS legislation. The reason that the officials in those cases were found not to have a right to enter premises under State OHS law was because they did not hold relevant permits (in the case of Bragdon) or an equivalent authorisation (in the case of John Holland) under those laws.

93    As already noted, the “right” referred to in s 494(1) is a right to enter premises conferred by State OHS law. Relevantly, s 117(1) confers a right of entry, for the prescribed purposes, on a person, such as Mr Harkins, who holds the status of a WHS entry permit holder. The exercise of the right is qualified by a number of other provisions of the WHS Act. Section 117(2), for example, imposes the precondition that the permit holder must reasonably suspect that a contravention of the legislation is occurring or has occurred at a particular site. Notice requirements are also imposed on permit holders under the WHS Act (s 119). Other requirements relate to the need for permit holders to carry with them their WHS entry permits (s 125), the times during which the right may be exercised (s 126) and the parts of the construction site which may be examined (s 127).

94    There is no textual justification in either s 494 of the FW Act or s 117 of the WHS Act for a conclusion that a failure to comply with such conditions and requirements extinguishes the right of entry conferred on WHS entry permit holders. The failures may have consequences under the WHS Act but do not impinge on the right of entry conferred on WHS entry permit holders.

95    In Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2017) 251 FCR 528; [2017] FCAFC 77, a case in which the union officials concerned had asserted an entitlement to enter a construction site for the purpose identified in s 484 of the FW Act, Flick J (with whom Besanko and North JJ agreed) held (at 535 [31]) that the decision in Bragdon did “not support a conclusion that a ‘permit holder’ who fails to give a ‘notice for the entry’ is not ‘exercising, or seeking to exercise’ the right conferred by s 484 or a conclusion that entry in such circumstances is not ‘in accordance with’ Pt 3-4”: cf Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88 at [73]-[77], [84] and [97] (Tracey J, with whom Allsop CJ agreed at [2] and White J agreed at [180]-[181]).

96    There is, in my opinion, no justification for reading the word “lawful” into s 494(1) such that it is only engaged if a State permit holder has complied with every requirement regulating the exercise of his or her right under the State legislation. This subsection may be contravened by an official who holds a permit under State OHS legislation and who exercises a right of entry conferred by that legislation even if the official fails to comply with conditions or requirements which place constraints on the exercise of the right.

The pleadings issue

97    It is necessary, then, to return to the second issue, raised by the respondents, as to whether the Commissioner has pleaded sufficient facts to establish that the right comprehended by s 494 and conferred on WHS permit holders by s 117 of the WHS Act was a right enjoyed by Mr Harkins at the time of his attendances at the premises on 12 and 13 October 2016.

98    The Commissioner’s pleaded case was that, because he did not hold a Federal entry permit on 12 and 13 October 2016, Mr Harkins had contravened s 494(1) on these days by entering the premises for the purpose of exercising a State OHS right “by inquiring under ss 117 and 118 of the WHS Act into suspected contraventions of the WHS Act.”

99    The Commissioner’s amended statement was the subject of complaints by the respondents which included that there were no pleadings about: (1) the presence of “a relevant worker” on site on the relevant days, namely a member of the union or a worker eligible to be a member whose industrial interests the union was entitled to represent and who worked at that workplace; (2) that Mr Harkins knew or thought there was “a relevant worker” on site to whom the suspected contravention related or who would be affected by it; and (3) that Mr Harkins reasonably suspected, “before entering” the premises on each of the two days, that a contravention had occurred or was occurring.

100    It may first be observed that any right conferred by s 118 does not constitute a “State … OHS right” for the purposes of the definition in s 494(2) of the FW Act. That section does not confer a right of entry but rather lists rights that may be exercised after a permit holder has entered pursuant to s 117.

101    The right conferred by s 117 of the WHS Act is not a right of entry simpliciter. It is a right of entry for a purpose. That purpose is inquiring into a suspected contravention of the WHS Act. Such a contravention must be one that “relates to, or affects, a relevant worker”: s 117(1). The term “relevant worker” is defined in s 116. The permit holder must reasonably suspect “before entering” the workplace that the contravention has occurred or is occurring: s 117(2).

102    No mention was made in the pleadings of the “relevant worker” and “before entering” elements of s 117. Nor were any material facts pleaded which bear on those elements. There was no allegation that Mr Harkins’ purpose was to inquire into a suspected contravention of the WHS Act that related to or affected “a relevant worker” who he knew or believed to be on site. Nor was any attempt made to plead that Mr Harkins held a reasonable suspicion before entering the premises that a contravention had occurred or was occurring.

103    As a result, there was a failure to plead all the material facts necessary to establish a contravention of s 494.

104    I should add that I do not consider that it was necessary for the Commissioner to plead that “a relevant worker” was present on site at the relevant time.

105    In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 (“the SAHMRI Case”) White J held (at [156]-[158]) that a permit holder may be found to hold a purpose to enter under s 484 even if he or she is mistaken in his or her belief that there are persons on site who meet the description in the subsections of s 484. See also Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 (“the Lend Lease Case”) at [75]-[77] (White J); Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147 at [110] (Charlesworth J).

106    By analogy, it is sufficient to establish that a State permit holder held the requisite purpose under s 117 if he or she believed that there were “relevant workers” on site who were affected by the suspected contravention or to whom the contravention related. Nonetheless, proof of the presence of such workers on site (and a pleading to that effect) may assist with proving that the relevant respondent held a belief about the presence and status of those workers and therefore entered with the requisite purpose: cf the Lend Lease Case at [81]; McDermott at [110].

107    In a proceeding in which respondents stand in jeopardy of the imposition of civil penalties, it is necessary that the case against them be pleaded comprehensively and clearly. As the Full Court recently observed in Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 at [19]:

Having regard to these observations and, in particular, to the provisions of s 361(1)(b), we consider that an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Part 3-1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent. As French J said in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173; [1991] FCA 557 at 6, “[a] material fact is one which is necessary to formulate a complete cause of action. … Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet.”

(Emphasis added).

108    A failure of the Commissioner to plead out all the elements of the allegation of a contravention of s 494(1) by Mr Harkins means that the Court is unable to conclude, consistently with the requirements of s 140 of the Evidence Act 1995 (Cth), that any contravention by Mr Harkins occurred on either 12 or 13 October 2016.

109    For this reason this claim must be dismissed.

The evidentiary issues

110    My conclusions relating to the pleadings issue make it unnecessary for me to deal in any detail with the complaints, made by the respondents, about the paucity of evidence to support the allegation against Mr Harkins and the contradictory nature of some of that evidence. I will, nonetheless, make some general observations about the state of the evidence on which the Commissioner relied to support the allegation of a contravention of s 494(1).

111    The evidence satisfied me that, when Messrs Hassett and Harkins came to the premises on 12 October 2016, they advised the managers to whom they spoke that they were there to hold discussions with employees. When told that they would not be permitted to do so because they had not given the required notice Mr Hassett became abusive. It was only after these exchanges had occurred and about 10 minutes had passed following their arrival that they suddenly announced that they were attending to deal with safety issues. This assertion was both a falsehood and a contrivance. There was no evidence to suggest the existence of any safety risks on the site which would have given rise, prior to their entry, to a suspicion, by either official, that there had been a contravention of the WHS Act. So much was confirmed when, having set out to find what they considered to be risks to safety, the only two which were found could not have been observed or noticed prior to the officials’ entry to the premises.

112    As a result I do not consider that the initial entry to the premises on 12 October 2016 was undertaken by Mr Harkins for the purposes referred to in s 117 of the WHS Act: cf Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 at [201] (Flick J).

113    I would have taken a different view in respect of Mr Harkins’ attendance at the premises on 13 October 2016. He was there for only a very short time. He went to the switchboard, appeared to satisfy himself that problems identified on the previous day had been rectified and then left the premises. That evidence would have supported the Commissioner’s claim of entry under s 117, had it been linked to other evidence about Mr Harkins’ knowledge or belief that there were relevant workers on the premises on that day who were affected by the suspected electrical safety issues (if there were any) or to whom such issues related.

114    To that end I note the respondents’ complaint that there was no evidence as to the content of the union’s rules that would entitle it to represent any of the workers present on site on the two days question. It may be accepted that the union’s registered rules were not tendered. However, it was not in dispute that the union’s eligibility rules cover persons whose employment consists of, or includes, “building work” within the meaning of s 6 of the BCIIP Act (see [6(2)] above) and that such “building work” was being undertaken on the project (see [12] above): cf the Lend Lease Case at [82].

LIABILITY OF MR HASSETT

115    In his amended statement of claim the Commissioner alleged that Mr Hassett had entered the premises on 12 October 2016 for the purpose (among others) of “holding discussions with one or more employees performing work at the premises in accordance with s 484 of the … Act.” There is some ambiguity in this pleading. The absence of punctuation allows the pleading to be construed as referring to the work of employees being performed in accordance with s 484. It is tolerably clear, however, that what was intended (having regard to the submissions made at trial) was that Mr Hassett’s purpose was to hold discussions with employees performing work at the site whose industrial interests the CFMEU was entitled to represent and who were willing to participate in such discussions.

116    The Commissioner also pleaded that Mr Hassett entered with the purpose of exercising a “State OHS right” by inquiring, under ss 117 and 118 of the WHS Act, into suspected contraventions of the WHS Act. He further alleged that the entry was for the purpose of exercising another “State OHS right” right by consulting with and advising workers on work health and safety matters under s 121 of the WHS Act.

117    The Commissioner contended that Mr Hassett had entered the premises on 12 October 2016 in the exercise of rights (or seeking to exercise rights) in accordance with Part 3-4 of the FW Act and, in doing so, had acted in an improper manner. He was alleged to have contravened s 500 of the FW Act four separate times by:

(1)    failing to give prior notice as required by s 487 of the FW Act (prior to his entry under s 484);

(2)    remaining on the premises and exercising rights under ss 117 and 118 of the WHS Act, contrary to s 486 of the FW Act;

(3)    failing to give prior notice of his entry as required by s 122 of the WHS Act (prior to his entry under s 121 of the WHS Act); and

(4)    acting in an aggressive, demeaning and abusive manner towards managers and others present whilst on the premises.

The Commissioner pleaded that, alternatively, the totality of this conduct constituted a single contravention of s 500 by Mr Hassett.

118    The respondents contended that the Commissioner had failed to establish that Mr Hassett had entered the premises for the purpose, under s 484, of holding discussions with one or more of the employees who were performing work at the site. They also submitted that the Commissioner had failed to establish that Mr Hassett had entered for the purpose of exercising “State OHS rights” under the WHS Act. They also relied upon the fact that Mr Hassett had not provided notices under s 487 of the FW Act or ss 119 and 122 of the WHS Act. They therefore denied that Mr Hassett had been seeking to exercise rights “in accordance with” Part 3-4 of the FW Act. They further contended that the mere failure to comply with requirements, imposed on permit holders by the FW Act and the WHS Act, could not give rise to contraventions of s 500.

Entry “in accordance with” Part 3-4

119    I first address the claim that Mr Hassett entered for the purpose of exercising a State OHS right as defined in s 494(2) of the FW Act. For the reasons earlier given in relation to the complaints made against Mr Harkins (at [111]-[112] above), I am not satisfied that entry to the premises on 12 October 2016 was effected by Mr Hassett for the purpose of exercising a State OHS right to inquire into a suspected contravention of the WHS Act under s 117 or to consult with workers on work health and safety matters under s 121. As I have said (at [100] above), s 118 does not confer a State OHS right of entry. I also note that the Commissioner’s pleadings in relation to Mr Hassett’s entry under the WHS Act suffered from the same deficiency as the pleadings concerning Mr Harkins by failing to refer to the “relevant worker” element in ss 117 and 121 of the WHS Act (see [97]-[108] above).

120    I now turn to s 484, which also appears in Part 3-4. It empowers a permit holder (such as Mr Hassett) to enter construction sites “for the purposes of holding discussions with one or more employees” who satisfy the criteria prescribed by the section.

121    The purpose of the permit holder at the time of any given entry to premises is to be assessed objectively.

122    The uncontested evidence was that:

    At the meeting in the union office on 5 October 2016 Mr Harkins, in the presence of Mr Hassett, told Messrs Brunskill and Schwaiger that he had arranged to attend the premises on the following Wednesday “to talk about renewal of the enterprise agreement”.

    Mr Schwaiger told Messrs Harkins and Hassett, both at the meeting and by e-mail later in the day, that Messrs Harkins and Hassett were not invited on to the premises and were required to comply with the notice provisions prescribed by the FW Act.

    Mr Hassett entered the premises on 12 October 2016 without giving any prior notice to HBG, the occupier of the premises.

123    The other evidence of relevance, which I have found to be established, is that:

    Messrs Hassett and Harkins told the managers on their arrival on 12 October 2016 that they were attending to hold discussions with employees.

    When told by Mr Schwaiger that they would not be permitted entry because of the failure to comply with the notice requirements Mr Harkins told Mr Schwaiger in the presence of Mr Hassett that: “This could have been easy, 15 minute chat with the blokes, tell them what the construction industry in Tas is going to be paying.”

124    Having regard to what the two officials said about their purpose in attending the premises and the circumstances which surrounded their visit I am satisfied that they entered for the purpose of holding discussions with members (“the blokes”) of the union which they represented. I readily infer from the subject of those proposed discussions that they entered with the purpose of speaking with persons whose industrial interests the CFMEU was entitled to represent.

125    The entry occurred under s 484 in accordance with Part 3-4 of the FW Act in the sense that it was “covered by” the requirements prescribed by the Part which attached to such entries: see The Laverton North and Cheltenham Premises Case at [73]-[77]. These requirements included the notice requirements imposed by s 487 of the FW Act.

Contravention of s 500

126    I have examined the relevant principles and authorities relating to the interaction of ss 484 and 500 and to liability under s 500 of the FW Act in another judgment, published today: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080 at [50]-[55]. I adopt what I there said for the purposes of my present reasons.

127    Once challenged about his right to hold discussions with employees, Mr Hassett (together with Mr Harkins) raised the prospect of safety issues and remained on the site for, approximately, a further two hours. During this period Mr Hassett used the insulting, demeaning, indecent and profane language recorded at [22] above. He did so in an aggressive manner towards HBG staff despite objections from Mr Schwaiger and, and on one occasion, by Mr Harkins. His presence on site distracted Mr Schwaiger and another manager from performing their normal duties.

128    There was no dispute that the entry had occurred without the giving of prior notice as required by s 487 of the FW Act. As a result he was precluded, by s 486, from lawfully remaining on the site or exercising any rights conferred by s 484 and other relevant provisions of Part 3-4. The undisputed evidence was that he had entered the premises and remained on the site for a period of approximately two hours on 12 October 2016.

129    The Commissioner also pleaded that Mr Hassett had exercised rights under ss 117 and 118 of the WHS Act while on site contrary to s 486 of the FW Act. I do not consider that s 486 operates so widely as to prohibit the exercise of State OHS rights. The prohibition which it contains is confined to the exercise of rights conferred under the earlier subdivisions of Division 2 of Part 3-4. Section 486 is in Subdivision C of Division 2 of Part 3-4 of the FW Act. Section 486 does not say that a person cannot exercise “any other right” arising from any part of the FW Act or from any other legislation, but rather that “Subdivisions A, AA and B do not authorise a permit holder to remain on premises, or exercise any other right, if he or she contravenes this Subdivision … in exercising that right” (emphasis added). The structure of the provision indicates that the “other right” is a right which, like the right to “enter or remain on premises”, arises from the preceding subdivisions of Division 2. For example, ss 482 and 483B, which appear in Subdivisions A and AA, respectively, of Division 2, set out rights that may be exercised while a permit holder is on a premises. In contrast, s 494, which defines State OHS rights, appears in Division 3. The exercise of State OHS rights is conditioned by the regime of requirements which are set out in that division. It follows that I do not consider that any exercise of rights under ss 117 and 118 of the WHS Act by Mr Hassett would engage s 486 of the FW Act.

130    Further, as I have already observed (at [119] above), I am not persuaded that Mr Hassett did, in fact, exercise a right of entry under s 117 of the WHS Act given that he lacked the requisite purpose of inquiring into a suspected contravention of the WHS Act and, in any event, the pleadings did not refer to the “relevant worker” element of that section.

131    Nor am I persuaded that Mr Hassett contravened s 122 of the WHS Act because, for the reasons earlier given in relation to the complaints made against Mr Harkins (at [111]-[112] above), I am not satisfied that entry to the premises on 12 October 2016 was effected by either Mr Harkins or Mr Hassett for the purpose of consultation on work health and safety matters with workers under s 121 of the WHS Act.

132    I accept the respondents’ submission that Mr Hassett’s failure to give prior notice of his attendance under s 487, standing alone, may not have given rise to a contravention of s 500: The Laverton North and Cheltenham Premises Case at [6]-[7] (Allsop CJ) and [200]-[201] (White J); cf at [122] (Tracey J). The failure to satisfy the notice requirement was, however, accompanied by other misconduct. He was dismissive of Mr Schwaiger’s advice about compliance with the requirements of the FW Act. When Mr Hassett was challenged as to his right to be on the site he failed to leave. He proceeded to embark on a safety inspection and his presence distracted two of the site managers from their normal duties.

133    Furthermore, whilst on the site, Mr Hassett acted in an improper manner over a protracted period. His aggressive approach and his repeated use of foul and abusive language, directed to the managers, departed from the standards of conduct that a reasonable person, with knowledge of the duties, powers and authorities of permit holders, would expect.

134    Mr Hassett’s language and demeanour on 12 October 2016 had the effect of increasing Mr Schwaiger’s anxiety and heart rate; he slept poorly on a number of nights following and he felt his heart rate increasing when he saw Mr Hassett on his subsequent attendances at the site. The fact that Mr Hassett’s conduct had this effect on one of those present supports the conclusion that he acted in an improper manner: see The Parliament Square Case at [59]. In any event, even absent such evidence, I would hold that the manner of Mr Hassett’s conduct was improper in this case, having regard to the words which he admitted were spoken and to the fact that he continued his tirade even after being asked to stop.

135    Mr Hassett contravened s 500 of the FW Act on 12 October 2016. I make this finding having regard to the failures of Mr Hassett to satisfy the relevant requirements of Subdivision C of Division 2 of Part 3-4 and to his aggressive and repeated use of foul and abusive language.

THE LIABILITY OF THE CFMMEU

136    The Commissioner submitted that the CFMMEU was liable for Mr Hassett’s contravention of s 500. He submitted that accessorial liability arose by operation of s 550 of the FW Act and by operation of the doctrine of vicarious liability at common law.

137    The respondents denied that the CFMMEU was liable as an accessory because the Commissioner had failed to demonstrate that the union had done something additional to that done by Mr Hassett. In doing so they acknowledged that their argument was inconsistent with a number of authorities in this Court including Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088.

138    The respondents also pointed to authorities which suggested that the doctrine of vicarious liability had no operation in a context such as the present: see, eg, Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797.

139    In The Parliament Square Case I reviewed the authorities relating to the establishment of accessorial liability through the interaction of ss 550 and 793 of the FW Act: see [102]-[108]. I do not repeat what I there said. Suffice it for present purposes to say that Huddy (No 2) and a number of other authorities there referred to established that a union principal maybe liable, under s 550, as an accessory for a contravention of s 500 by one of its officials, without the need for some additional act on the part of the principal. What must be established is that the particular official, in this case Mr Hassett, knew of all the essential facts which gave rise to his contravention. The findings which I have made in this judgment establish that Mr Hassett knew of all the essential facts which gave rise to his contravention of s 500.

140    I, therefore, find that the CFMMEU is liable for Mr Hassett’s contravention of s 500.

141    I accept the respondents’ submission that the CFMMEU is not vicariously liable under the common law for Mr Hassett’s contravention. I do so for the reasons I set out in the Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) [2018] FCA 122 at [196]-[199].

DISPOSITION

142    I will give directions for the parties to make submissions relating to the relief sought by the Commissioner for the contravention of the FW Act by Mr Hassett.

Associate:

Dated:    20 July 2018