Federal Court of Australia

Hanlon v Australian Building and Construction Commissioner [2021] FCAFC 221

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    The focus of this appeal is the unfortunate and unexplained 4 year, 4 month delay of the trial judge in giving his reasons for finding that the appellant, Rebel Hanlon, an organiser of the Construction, Forestry, Mining and Energy Union (CFMEU), had contravened s 500 of the Fair Work Act 2009 (Cth) on 11 August 2014 by entering a construction site at Riverbank Drive, The Ponds, in New South Wales, and having sought to exercise rights under Pt 3–4 of the Act remained on the site without giving notice of entry and failing to produce his entry permit.

2    The first ground of the amended notice of appeal asserted that that the trial judge erred in finding that Mr Hanlon had been requested to provide an entry permit but had not done so, in circumstances where the evidence as to the making of any request had been contested and his Honour had been required to make a credit finding in relation to competing versions of the event. The basis of this ground was the delay that occurred between the trial judge hearing the evidence of the witnesses, between 26 and 28 July 2016, and when he delivered reasons for judgment on 16 December 2020 (the liability reasons). The trial judge had a further day’s hearing on 7 November 2017 and appears to have reserved his decision then. He received further written submissions on 2 August 2018.

Delay

3     In Regina v Lawrence [1982] AC 510 at 517, Lord Hailsham of St Marylebone LC said:

My Lords, it is a truism to say that justice delayed is justice denied.

4    In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at 473 – 474 [5] – [6] Gleeson CJ said (and see also at 493–494 [78], and 496 [85]–[86] per Kirby J, and at 524–525 [166]–[167] per Callinan and Heydon JJ):

Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare…. A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself (See Monie v The Commonwealth (2005) 63 NSWLR 729, and the authorities there collected).

The context in which delay occurs will affect any legal consequences that may flow.

(emphasis added)

5    In Expectation Pty Limited v PRD Realty Pty Limited (2004) 140 FCR 17 at 32 [69], 33 [73], 35 [81] Carr, Emmett and Gyles JJ said:

[69] Delay between the taking of evidence and the making of a decision is not, of itself, a ground of appeal, unless the judge could no longer produce a proper judgment or the parties are unable to obtain from the decision the benefit which they should (cf Boodhoo v Attorney-General of Trinidad and Tobago [2004] 1 WLR 1689 at [11]-[12]). Nor does such delay of itself indicate that a trial has miscarried or that a verdict is in any manner unsafe. However, where there is significant delay in giving judgment, it is incumbent upon an appellate court to look with special care at any finding of fact challenged on appeal. In ordinary circumstances, where there is a conflict of evidence, the trial judge who has seen and heard the witnesses, has an advantage.

…

[73] Of course, where the trial judge, notwithstanding significant delay, demonstrates by his or her reasons that full consideration has been given to all of the evidence, the parties and the public may be satisfied that the delay has not affected the decision. More specifically, if the reasons demonstrate that the delay has not weakened the trial judge’s advantage, confidence will be maintained in the decision. For example, it would be open to a trial judge to explain in the course of giving reasons that contemporaneous notes were made of impressions formed as evidence was given by witnesses of importance (see R v Maxwell (unreported, Court of Criminal Appeal, NSW, Spigelman CJ, Sperling and Hidden JJ, No 60282 of 1998, 23 December 1998)).

…

In the absence of some special circumstances where his Honour rejected the evidence of the witnesses on grounds of lack of credit, one would expect him to explain how, despite the delay, he was well­able to recollect the oral testimony. Also, as a general rule, if part of that rejection depended upon contemporary documents or the lack of such contemporary documents, his Honour should, in his reasons, have gone to those documents and, (in the latter case), stated with the requisite satisfaction that there were no such contemporaneous documents.

Statutory Context

6    The issues on the appeal arise in the following statutory context under Pt 3–4 of the Act. Part 3–4 of the Act is headed “Right of entry”. The guide to Pt 3–4 in s 478 states that, in exercising rights under Div 2, “permit holders must comply with the requirements set out in the Division”. Section 480 sets out the object of Pt 3–4, which is to establish a framework for officials of organisations to enter premises that balances, relevantly, the right of occupiers of premises and employers to go about their business without undue inconvenience. Next, s 484, which comprises Subdiv B of Div 2 of Pt 3–4 provides:

484    Entry to hold discussions

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

(a)    who perform work on the premises; and

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

(c)    who wish to participate in those discussions.

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

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

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

7    Unless the Fair Work Commission has issued an exemption certificate for the entry, which is not applicable here, s 487(1) requires a permit­holder, before entering premises under s 484, to give the occupier of the premises an entry notice for the entry. An entry notice must comply with the requirements in s 518. In the case of an entry under s 484, s 518(3) requires an entry notice to specify that section as the provision that authorises entry, contains a declaration by the permit holder for the entry that his or her organisation is entitled to represent the industrial interests of the employee or a TCF award worker who performs work on the premises and specifies the provision of the organisation’s rules that entitles it to represent the employee or TCF award worker. An entry notice for entry under s 484 must be given during working hours, at least 24 hours but not more than 14 days, before the entry (s 487(3)). Next, s 489 provides:

(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 A, AA or 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.

8    Unlike s 500, set out below, none of ss 484, 487 or 489 is a civil remedy provision.

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).

Background

9    The trial judge delivered his reasons for imposing a penalty on 23 April 2021 (the penalty reasons) with more alacrity, within three weeks of the penalty hearing. He imposed a penalty on Mr Hanlon of $3060, being 30 per cent of the maximum for a contravention of s 500 of the Act.

10    Mr Hanlon appeals against both the declaration of his contravention and the imposition of the penalty. Mr Hanlon accepted in argument during the appeal that his second and third grounds of appeal were contingent on the first ground being made out and need not be considered if it failed. It is not necessary to consider these grounds because I have concluded that the first ground fails.

11    At the trial, there were another two respondents, Brian Parker, who was then the State secretary of the Construction and General NSW Divisional Branch of the CFMEU and the CFMEU itself. Mr Hanlon had accompanied Mr Parker, together with another officer, Tom Rigby, to The Ponds site on 11 August 2014. The head contractor at the site was Richard Crookes Constructions Pty Ltd (RCC). Andrew Buchanan was RCC’s site manager. The trial judge adopted in [6] of his penalty reasons the following summary of his liability findings prepared by the respondent, the Australian Building and Construction Commissioner (ABCC):

7. Richard Crookes Construction Pty Ltd (RCC) was the principal contractor for the construction of The Ponds School at Riverbank Drive, the Ponds in New South Wales (Ponds site), which involved the construction of three new schools for the Ponds community. RCC engaged subcontractors Austar Plaster Pty Ltd (Austar) to provide plastering services at the Ponds site.

8. The case concerns events that occurred on 11 August 2014, at the Pond [sic] Site.

9. On 11 August 2014, Mr Hanlon and Mr Parker entered the Ponds site. Both Mr Hanlon and Mr Parker were officials and employees of the Construction, Forestry, Mining and Energy Union and permit holders.

10. A purpose of Mr Hanlon and Mr Parker’s visit to the site was to hold “discussions” with Austar workers.

11. While on site, Mr Hanlon and Mr Parker met with Mr Andrew Buchanan, RCC Project Manager. Mr Hanlon and Mr Parker were asked by Mr Buchanan to provide their entry notice and produce their entry permits. They did not produce their entry permits as requested by Mr Buchanan, in accordance with s 489 of the FW Act.

12. Mr Hanlon and Mr Parker were required by s 487 of the FW Act to provide RCC with an entry notice at least 24 hours before their entry onto the Ponds site on 11 August 2014. They did not provide such notice.

13. Mr Parker said he did not “care about the paperwork”.

14. Mr Buchanan refused Mr Hanlon and Mr Parker’s request to hold a meeting with the workers as they had failed to give notice and provide their entry permits. They both remained on the premises despite the requests made of them.

15. Mr Parker again requested Mr Buchanan (in an aggressive manner), “…to round up all the workers so I can speak with them. If you don’t round up the workers. I will go and do it” and “you will do what I fucking say” and “don’t fuck me around”.

16. Relevantly, the Court held at [149] of the Judgment:

Mr Parker’s contemptuous disdain for statutory preconditions to lawful entry on others’ premises, manifested by the way he spoke to Mr Buchanan was, I find, improper conduct in the relevant sense in that it was a breach of the standards of conduct that reasonable persons with knowledge of the relevant circumstances and of Mr Parker’s duties, powers and authority, would expect of a person in Mr Parker’s position.

17. “The respondents’ improper conduct was not limited to the site office”. Both Mr Hanlon and Mr Parker were again advised by Mr Buchanan that they were not allowed to enter the Ponds site without notice of entry and production of their entry permits. However:

(a) Mr Hanlon proceeded onto “the site proper” (unaccompanied). Mr Hanlon while on the “site proper” told workers, “… that we were having a meeting a[t] smoko”.

(b) Mr Parker remained in the car park area.

18. Later both Mr Hanlon and Mr Parker in the car park area (part of the premises) addressed workers despite Mr Buchanan making it clear that RCC did not consent to a meeting to been held unless they gave notice and provide[d] their entry permits.

19. The Court at [151] of the Judgment found this conduct to be improper. The Court said at [152]:

Similarly improper was Messrs Hanlon and Parker’s presence in the car park, which I have found was part of the premises, in pursuit of the meeting that Mr Buchanan had told them would not be permitted. Aggravating that impropriety was the fact that Mr Parker then proceeded to address workers even though Mr Buchanan had made it clear that RCC did not consent to a meeting being held unless the requirements of the FW Act had been satisfied.

(references omitted)

12    As can be seen from the summary, his Honour had found in the liability reasons that the conduct of Mr Hanlon was “improper” within the meaning of s 500.

13    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Others (The Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473 at 478 [6] – [7], Allsop CJ (with whose reasons on this issue White J expressly agreed (at 512 [201]) said:

“Improper manner” in s 500

[6] I would express the relationship between acting in an improper manner for s 500 and the failure to comply with statutory obligations in a way similar to White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [173]-[174] where his Honour said:

173. Counsel for the respondents commenced with a submission to the effect that an entry on to premises for the s 484 purpose without the prior provision of a s 487 notice should not be regarded as improper because s 487 is not itself a civil remedy provision.

174. 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.

[7] What is improper is an evaluative conclusion by way of characterisation. An accidental oversight leading to a failure to comply with a statutory obligation may well not be capable of being characterised as improper. An egregious, flagrant and defiant flouting of the statute is likely to be so characterised. I do not consider, however, that impropriety is always to be found in the failure to satisfy statutory obligations. Were it so it would necessarily convert each of the requirements in Subdiv C into penalty provisions through s 500.

(emphasis added)

14    As the Chief Justice noted, the question of whether an act will be improper, within the meaning of s 500, is assessed by an evaluative characterisation of all of the circumstances, including where the contravention of s 500 occurs because of the manner in which the contravener did not comply with the requirements ss 487 or 489.

The liability reasons

15    The case presented at the trial was one of oath against oath. There is no dispute, and it was common ground at trial, that Mr Hanlon and Mr Parker had not given or produced any notice of entry. The contest of fact between the parties involved whether the union officials were there, as they said, in exercise of a right to enter, to investigate possible contraventions of the Act, or as the ABCC alleged, to hold a meeting.

16    The trial judge summarised the witnesses’ evidence at length in the liability judgment. Apart from the finding that Mr Buchanan had requested Mr Hanlon (and the other two CFMEU officials) to produce their authority documents pursuant to s 489(2), and a single error to which I will come at [23]–[24], there was otherwise no challenge to any of his Honour’s findings of fact.

17    It was also a factor in his Honour’s evaluation of the witnesses’ evidence that the CFMEU had arranged for a crew from the television program, A Current Affair, to be present at the site to film what happened in a car park where the Union officials addressed workers. The trial judge had a transcript of the relevant footage in evidence and referred to it in the liability reasons.

18    Mr Buchanan and another officer of RCC, Wes Ward, gave evidence that on 11 August 2014, they had a discussion with Mr Hanlon, Mr Parker and Mr Rigby in which Mr Buchanan was the senior person representing RCC, and Mr Parker was his senior counterpart representing the CFMEU in the management shed at The Ponds.

19    His Honour summarised Mr Buchanan’s version of the discussion between him and Mr Parker in the presence of Mr Ward, Mr Hanlon and Mr Rigby at [28]–[32] as follows:

[28] Mr Buchanan deposed that he was in his office with the RCC site manager, Wesley Ward, on the morning of 11 August 2014 when Messrs Hanlon, Parker and Rigby entered. He deposed that he had a conversation to the following effect:

MR PARKER: I want to get together with the workers to discuss some issues.

MR BUCHANAN: You haven’t given any notice of your entry, and you haven’t shown me your right of entry paperwork. Unless you have your right of entry paperwork, and you have filled out the official notice of entry, then you won’t be meeting with workers today.

He deposed that Mr Hanlon and Mr Rigby were standing with Mr Parker during the time that they were talking in his office.

[29] Mr Buchanan deposed that when he refused to allow Mr Parker to meet with the workers, the conversation started to get heated. He deposed that Mr Parker stood very close to him and started talking in a loud and aggressive manner, going red in the face and puffing his chest out:

MR PARKER: I don’t care about the paper work. I want you to round up all the workers so I can speak with them.

MR BUCHANAN: You haven’t got the paperwork.

MR PARKER: I don’t care. I want to speak with them. If you don’t round up the workers I will go and do it.

[30] Mr Buchanan deposed that he re-affirmed his position that Messrs Hanlon, Parker and Rigby were not allowed to enter the Ponds site without notice of entry and production of their entry permits. He deposed that, at one point, Mr Parker said to him “you will do what I fucking say” and “don’t fuck me around”.

[31] Mr Buchanan deposed that his conversation with Mr Parker continued to the following effect:

MR PARKER: Austar are not paying their workers correctly and they’re employing illegal workers.

MR BUCHANAN: I haven’t seen any evidence of that and if you have information you should bring it to us to investigate.

MR PARKER: I want to talk to the workforce. I want you to get them together so I can speak with them.

MR BUCHANAN: I’m happy for you to talk to the workers as long as you go through the right protocols which is to provide written notice and show your right of entry permits. Without any direction from my supervisors and without right of entry paperwork, I am not going to be getting the guys together.

MR PARKER: [loudly and in an aggressive manner] Do you understand who I am and what my position is? If you don’t get the workers together, I’m going to do it.

MR BUCHANAN: Brian, you know I’m not allowing you to do that.

MR PARKER: All right that’s it then.

Mr Buchanan said that Mr Parker’s behaviour and demeanour had made him feel uncomfortable. Mr Buchanan said that Mr Parker might have said something similar to “We don’t know what [the Austar Workers’] status is in terms of their legal rights to work” or that “We are confident from the documents that we have obtained that there might be tax fraud”. However, at no time was safety discussed.

[32] Mr Buchanan deposed that Messrs Hanlon and Parker then stormed out of his office and out of view. Mr Rigby had left the office some time before this.

20    Importantly, his Honour accepted Mr Buchanan’s evidence that he wrote an incident report on 11 August 2014 shortly after the CFMEU officials left the site and sent it to RCC’s head office, in accordance with standard practice for incidents. His Honour accepted Mr Buchanan’s evidence that it was rare for him to fill out an incident report “from scratch” but that he had filled this one out. The incident report relevantly stated:

CFMEU officials (Brian Parker, Rebel Hanlon and Tom Rigby) came into the RCC site office and spoke to both the RCC Project Manager (Andrew Buchanan) and Site Manager (Wes Ward). Brian Parker advised he had issues with Austar Plaster and told RCC to round up all “the boys” so he could talk to them. RCC (Andrew Buchanan) advised that without a Right of Entry permit we would not be getting the site workers together as we had to follow the guidelines. Brian Parker then said that he didn't care about the paperwork and if we didn't get them all together he would bury us in paperwork. Andrew Buchanan advised again that we would not arrange a meeting without proper Right of Entry paperwork. Whilst RCC we [sic] discussing this matter with Brian Parker, Rebel Hanlon of the CFMEU walked onto site without authorisation and proceeded to tell all workers to go to the lunch area for a meeting. As this was approximately 9.45am many workers were already at the lunch shed area for morning tea. Without authorisation Brian Parker then spoke to the gathered workers however RCC are unable to verify what was said as we were not present as at this stage Andrew Buchanan as making calls to RCC’s Management (Cameron Waller & Hamish Crookes - both unsuccessfully until after things ended) and Wes Ward had walked onto site to see if any CFMEU officials had gone onto site without authorisation.

Whilst making phone calls RCC’s Andrew Buchanan observed a film crew filming Brian Parker’s speech to the gathered workers and there appeared to be additional CFMEU officials in the lunch area as well. Once the meeting wrapped up all workers returned to work.

(emphasis added)

21    In addition to Mr Buchanan’s incident report, there was also in evidence a site diary for 11 August 2014 prepared by another officer of RCC that recorded:

CFMEU came to site with no right of entry but entered site regardless with video cameras. They tried to stop work meeting but could only talk to the guys already at the sheds having a smoko

(emphasis added)

22    The site diary also recorded that A Current Affair had filmed the site meeting.

23    His Honour summarised Mr Ward’s evidence, as follows:

[48] Mr Ward deposed that he was in the RCC site office on the morning of 11 August 2014 when Messrs Hanlon, Parker and Rigby entered the building. To get there they had to pass through the gates in the perimeter fence and past the change rooms, the induction shed, the lunch sheds and the toilets. He deposed that he followed them into Mr Buchanan’s office where a conversation to the following effect ensued:

MR PARKER: Can you round up all the workers on site? We have to have a meeting.

MR BUCHANAN: We can’t do that. You haven’t given us 24 hours’ notice. You haven’t provided the proper paperwork.

MR WARD: Guys this is a government job. You know the rules, we can’t give you access.

…

MR PARKER: You’re asking for one piece of paper from me, when there are guys out there working on the wrong visas.

[49] Mr Ward deposed that despite requests from Mr Buchanan, Messrs Hanlon, Parker and Rigby did not produce their entry permits. He also deposed that he was not aware of the CFMEU, Messrs Hanlon, Parker or Rigby giving written notice of their entry to the Ponds site on 11 August 2014.

24    It is common ground that the trial judge made the one error to which I referred in [16] above in finding that Mr Ward’s evidence admitted at the trial included the statement “despite requests from Mr Buchanan”, which I have italicised. That is, because after objection, counsel for the ABCC did not read it, and accordingly it was not part of the evidence.

25    Critically, the trial judge identified the issue for decision at [130] saying:

The parties disagreed on whether, on the morning of 11 August 2014, Mr Buchanan had asked Messrs Hanlon and Parker to produce their right of entry permits. The principal evidence on that question is what Messrs Buchanan and Ward said on the one hand and what Messrs Hanlon, Parker and Rigby said on the other. Significantly, Mr Buchanan’s account is corroborated by the incident report, which Mr Buchanan deposed he completed “shortly after the union officials left the Site”, and the site diary for 11 August 2014 which Mr Ward described as being “about what happened”.

26    His Honour noted in his liability reasons the significant challenges to Mr Buchanan’s credibility that the respondents had made but concluded that he should reject them. He found:

[141] I consequently accept the incident report to be an almost contemporaneous record of the meeting in the RCC management shed on 11 August 2014 and I also accept its accuracy. The substance of that report is reflected in Mr Buchanan’s account of the verbal exchanges which took place there that morning, which I consequently accept. As Mr Ward’s account of the meeting reflects Mr Buchanan’s I also accept it. To the extent that those accounts differ from the recollections of Messrs Hanon, Parker and Rigby, I prefer Messrs Buchanan and Ward’s accounts, supported as they are by the incident report.

[142] Because I prefer Messrs Buchanan and Ward’s accounts of their conversations with Messrs Hanlon and Parker in the RCC site office on 11 August 2014, I find that Messrs Hanlon and Parker failed to produce their entry permits on 11 August 2014 when asked by Mr Buchanan to do so.

[143] Before moving from this issue, I should also record that I found aspects of the respondents’ evidence to be unpersuasive. Mr Hanlon gave inconsistent versions of when Mr Buchanan allegedly said that there was to be a smoko break at which Mr Parker could address the workers, the effect of one of those versions being that he could not have known to tell workers that there was to be a meeting “at smoko”. Mr Parker gave inconsistent evidence concerning the point at which he had determined to hold discussions with workers, one being before arriving at the RCC site office and another being after Mr Buchanan was not “co-operative”. Added to this was a lack of frankness in Mr Hanlon’s frequent use during his cross-examination of the qualification “possibly”, which suggested evasiveness, and his unwillingness to acknowledge the correctness of the A Current Affair transcript of things he said on the day although the respondents did not challenge its correctness.

27    Earlier in his reasons, the trial judge had summarised Mr Hanlon’s evidence, in which, in cross-examination, he had frequently used the expressions “possibly” or “may have” or similar words. His Honour appears to have found at [143] that Mr Hanlon used such expressions in order to evade giving a definitive answer to an otherwise unremarkable proposition.

28    Both Mr Hanlon and Mr Parker gave similar accounts of their version of the discussion on 11 August 2014 in their affidavits read at the trial. Mr Hanlon deposed in [34] of his affidavit:

My primary purpose was to talk to Richard Crookes's managers and Austar's managers with Brian Parker on the site about suspected contraventions of the FW Act, the EA and Occupational Health and Safety matters. I wanted to get Richards Crookes to assist the investigation. I also wanted to talk Austar workers about these contraventions, if possible, and arrived before smoko time because I thought that this would be the best time see members and talk to them.

(emphasis added)

29    Accordingly, his Honour was in a position to find that Mr Hanlon, with his colleagues, had attended at the site with a purpose of speaking to Austar workers about its alleged contraventions. His Honour rejected the officials’ evidence that, first, they were there simply to investigate, and, secondly, no discussion occurred about the “paperwork” or any request for it.

Mr Hanlon’s submissions

30    Mr Hanlon contended that the trial judge fell into error in his findings that Mr Buchanan had made a request of Mr Hanlon, or in his presence, that he produce his entry permit. Mr Hanlon argued that his Honour had not made any express references in his reasons about the witnesses’ demeanour but had needed to explain in detail, particularly, by reason of his lengthy delay in giving judgment, why he had preferred Mr Buchanan’s and Mr Ward’s evidence, to the extent that the latter was other than merely corroborative, to Mr Hanlon’s and Mr Parker’s. Initially, he contended that the delay in giving judgment was so extreme that it was reasonable to infer that there had been a real and substantial risk that his Honour had overlooked relevant aspects of the impressions each witness gave, and that this was supported by his mistake in summarising Mr Ward’s evidence. He submitted that on that basis, his Honour’s finding that Mr Hanlon had contravened s 500 should be set aside. He argued that the part of the declaration that Mr Hanlon had failed to produce his entry permit, when requested, was not justified. During the course of argument, Mr Hanlon accepted that the declaration could be corrected, if that error were established, by deleting the last clause, namely, “and refused to produce his entry permit”.

Consideration

31    The trial judge’s reasons reveal that he first made a detailed examination of the evidence at the trial. His Honour set out the evidence-in-chief of the protagonists, relevant aspects of their cross-examination and the contentions of the respondents as to why Mr Buchanan and Mr Ward’s evidence ought not to be accepted. He then came to his findings that rejected the respondents’ evidence where it substantively conflicted with that of Mr Buchanan and Mr Ward.

32    While it is unfortunate that his Honour referred erroneously to the part of Mr Ward’s affidavit that was not read, having regard to the context of the contest and all of the circumstances, that error is insubstantial and unlikely to have played any role in the ultimate resolution of the contest. As Mr Ward had said, in his Honour’s quotation from his evidence (in [25] above), Mr Buchanan had responded to Mr Parker’s request to round up all the workers on the site to have a meeting: “We can’t do that. You haven’t given us 24 hours’ notice. You haven’t provided the proper paperwork”. And Mr Ward backed him up, saying: “Guys, this is a government job. You know the rules. We can’t give you access”.

33    It is impossible to think that these experienced industrial protagonists on both sides were speaking in a vacuum in such a conversation. While it is true that Mr Buchanan and Mr Ward did not say in terms, “Could you please show us your entry permit or give us your entry notice”, Mr Parker understood, in Mr Ward’s account of the conversation, exactly what the statements about the paperwork were about, for, as Mr Ward deposed, Mr Parker stated:

You’re asking for one piece of paper from me, when there are guys out there working on the wrong visas.

34    In other words, Mr Parker had no doubt as to what Mr Buchanan was requesting, namely the documents that each of the union officials had to produce in accordance with ss 487 and 489. This conversation occurred while Mr Hanlon was present in the site office.

35    Mr Hanlon also relied on Mr Buchanan’s statement that during his interview with the ABCC’s inspector on 21 November 2014, the inspector asked if, when he had “asked for a right of entry, was that directed at all three organisers?”. The record of the interview proceeded:

MR BUCHANAN: I was mainly talking to Brian at the time, because he was standing directly in front of me.

THE INSPECTOR: Did the other guys mention anything or refuse to provide?

MR BUCHANAN: To be honest, I don’t recall. It was pretty heated at the time. There was a lot being said. I don’t know. The other two did chime in and say various things, but what they said, I don’t recall off the top of my head.

36    However, as the trial judge found, Mr Buchanan had made the contemporaneous incident report three months earlier. That recorded that Mr Buchanan had requested, while Mr Hanlon was present in the meeting, a right of entry permit and Mr Parker said that “he didn’t care about the paperwork”. In that context, it was safe to infer Mr Hanlon was listening and understood what Mr Buchanan was requiring. Mr Hanlon’s challenge to his Honour’s findings lacked any support in the independent evidence.

37    Having regard to the trial judge’s extensive and detailed findings, it is difficult to detect any material error in them. True it is that his Honour gave no explanation as to why this relatively confined factual contest took him so long to resolve. However, in light of the way in which his Honour did resolve the contested evidence in a conventional, apparently thorough, examination of the record of the trial and the material before him, his Honour was entitled to, and explained why he came to prefer, Mr Buchanan’s evidence to that of Mr Hanlon and Mr Parker and why he relied on Mr Ward’s evidence, together with the contemporaneous incident report and site diary of 11 August 2014 to corroborate Mr Buchanan’s version.

38    The central issue at the trial was whether or not there had been any discussion about “paperwork”. The contemporaneous records, which conformed with the evidence given by Mr Buchanan and Mr Ward, suggested that that topic was an important point of discussion. His Honour had an ample basis on which to, and explained in detail why he did, arrive at his findings of preferring Mr Buchanan’s and Mr Ward’s evidence to Mr Parker’s and Mr Hanlon’s.

39    As Mr Buchanan noted in the incident report, he had told the officials that without a right of entry permit, they would not be allowed to get the workers together to have a discussion with them because RCC had to “follow the guidelines”. The references to “the paperwork” in the incident report and the evidence generally, need to be understood in a common sense way in the context that Mr Parker, the State secretary, and Mr Hanlon were experienced union officials and Mr Buchanan was an experienced senior officer of RCC in charge of the site. Each of them could be assumed to know what the requirements of s 489(2) were when CFMEU officials sought to exercise rights under Pt 3–4 of the Act to come on to a worksite and hold discussions with persons working there during working hours.

40    One of the significant purposes of the provisions in Pt 3–4 is to create a lawful basis on which officials of employee organisations will have a lawful right to be present upon someone else’s property without being a trespasser. Absent satisfaction of the conditions in Div 2 of Pt 3–4, as the guide in s 478 states, an official of an employee organisation will be a trespasser on a building site if his or her purpose is to have discussions with workers, unless the employer or person in control or possession of the site grants permission notwithstanding the non-compliance with the requirements of the Act. There is no suggestion here that, on 11 August 2014, Mr Buchanan or Mr Ward gave Mr Hanlon or his colleagues any permission to enter the site or hold discussions with the workers there.

41    It follows that Mr Hanlon has failed to demonstrate how the delay in giving reasons created or effected any error in his Honour’s decision-making in all of the circumstances: NAIS 228 CLR at 473–474 [5]–[6].

42    Accordingly, ground 1 must be rejected.

43    As I said earlier, because ground 1 fails, ground 2 cannot be made out since it asserted that his Honour could not have found that Mr Hanlon contravened s 500 based solely on a contravention of s 487. Nor could ground 3, challenging the penalty of $3,060, be made good because it depended on grounds 1 and 2 succeeding. His Honour’s declaration of Mr Hanlon’s contravention was based on his findings summarised from [6] of the penalty judgment. Ground 2 could not be sustained since his Honour did not simply rely on Mr Hanlon’s failure to produce an entry permit on request but, in addition, found that Mr Hanlon had acted improperly by entering the construction site at The Ponds and sought to exercise rights under Pt 3–4 by remaining on the site, first when he failed to give a notice of entry in accordance with s 487 and, secondly, refused to produce his entry permit (a request in accordance with s 489).

Conclusion

44    In those circumstances, the appeal should be dismissed.

Associate:

Dated:    9 December 2021

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

BROMWICH J:

45    I agree with Rares J that the appeal should be dismissed, in substance for the reasons that his Honour has given.  Having particular regard to the features of the case that his Honour has identified, I am not satisfied that the very limited error on the part of the primary judge that was ultimately established, namely overlooking that a small aspect of the affidavit evidence of a secondary witness was not read, was other than minor or inconsequential.  That error fell well short of vitiating the remaining base for the adverse declaration made against the appellant, to be found in the balance of the primary judge’s detailed and comprehensive reasons in the liability judgment.  Those other reasons include in particular a detailed assessment of the key witness for the respondent, Mr Buchanan, the assessment of contemporaneous records that supported his evidence, the assessment of the appellant’s evidence and conclusion reached as to its plainly unsatisfactory nature, with ample reasons given.  

46    In relation to the substantial and unexplained delay between the trial at which the competing witnesses gave evidence, and the delivery of the final liability judgment, the primary judge’s reasons disclose a careful consideration of the evidence sufficient to allay an initial concern about the duration of that delay. 

Associate:

Dated:    9 December 2021

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

BANKS-SMITH J:

47    I agree with Rares J that the appeal should be dismissed and for the reasons that his Honour has given.  I have also had the benefit of reading Bromwich J’s reasons and endorse his Honour’s comments.

Associate:

Dated:    9 December 2021