Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Cross River Rail Appeal) [2024] FCAFC 1

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed, in part.

2.    The declarations made in the Federal Circuit and Family Court of Australia (Division 2) in proceeding BRG 81 of 2022 on 21 February 2023 are varied by deleting from paragraph B, subparagraph (b)(i).

3.    The orders made in the Federal Circuit and Family Court of Australia (Division 2) in proceeding BRG 81 of 2022 on 29 June 2023 are set aside.

4.    The parties are to provide further written submissions as to what pecuniary penalties should be imposed consistently with these reasons limited to 3 pages as follows:

(a)    the respondent by 4 pm on 12 February 2024;

(b)    the appellants by 4 pm on 26 February 2024; and

(c)    the respondent in reply by 4 pm on 4 March 2024.

5.    Subject to any further order of the Court, the pecuniary penalties question will be determined on the papers.

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

REASONS FOR JUDGMENT

THE COURT:

1    This appeal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and its employee Mr Dean Lesley Rielly (Mr Rielly) concerns the exercise of a right of entry on 1 July 2021 by Mr Rielly to the worksite known as the Brisbane Cross River Rail Construction Project. Mr Rielly relied on a Notice of Entry to the worksite as a permit holder within the meaning of ss 497 and 500 of the Fair Work Act 2009 (Cth) (FW Act).

2    Mr Rielly’s entry was the subject of proceedings brought in the Federal Circuit and Family Court of Australia (Division 2) by the Australian Building and Construction Commissioner. The Commissioner alleged that Mr Rielly contravened s 499 of the FW Act by failing to comply with reasonable requests made by the occupier of the worksite, an unincorporated joint venture of four corporations, to comply with occupational health and safety (OHS) requirements with the result that he and the CFMMEU were each liable to the imposition of pecuniary penalties. The functions of the Commissioner were assumed by the Fair Work Ombudsman with effect from 6 February 2023, in consequence of the abolition of the Australian Building and Construction Commission. For convenience, we simply refer to the Ombudsman as the respondent in these reasons.

3    For reasons published on 21 February 2023, the primary judge largely upheld the claim, made declarations of contravention of ss 499 and 500 of the FW Act, determined that pecuniary penalties should be imposed and adjourned for further hearing the penalty quantum: Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FedCFamC2G 101 (liability judgment or LJ). On 29 June 2023, the primary judge imposed penalties upon the first appellant in the amount of $37,500 and Mr Rielly of $5,500 pursuant to s 546(1) and (3) of the FW Act: Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2023] FedCFamC2G 564 (penalty judgment).

4    By a notice of appeal dated 26 July 2023, the appellants appeal both the liability judgment and the penalty judgment. For the reasons that follow, we have concluded that the appeal succeeds in part, with the consequence that the penalties imposed cannot stand. Counsel agreed at the hearing that the appropriate course of action, where not all findings could be upheld, was that we should redetermine the penalties following the receipt of supplementary written submissions.

Background

5    Mr Rielly, a State Organiser employed by the CFMMEU and therefore an official of it, arrived at the worksite at around 2.30 pm on 1 July 2021. In his capacity as a permit holder within the meaning of ss 497 and 500 of the FW Act, he produced the Notice to employees of the occupier, namely Mr Hinrichsen, Mr Bekkers and Mr Maher. The Notice was given pursuant to s 119 of the Work Health and Safety Act 2011 (Qld) (WHS Act) and relevantly provided:

I reasonably suspect that the PCBU has not complied with s. 19(3)(A,B,C,D,E,F,G)

-    Primary Duty of Care

-    Risk Assessment in regards to working in inclement weather

6    The term PCBU is a work health and safety (WHS) term referring to the occupier in its capacity as “a person conducting a business or undertaking”. Mr Rielly refused to sign-in or undertake a written site induction and was not given an oral sign-in or induction. Mr Rielly then conducted an inspection of the worksite, which included climbing a tower crane pad, an elevated platform of approximately 1.2m, to view certain excavation work being completed on the worksite from a higher vantage point and entering what the respondent contended was a “restricted area” where excavators had been working earlier that day (but were no longer working).

7    It was the respondent’s case at trial that Mr Rielly, in entering the worksite and conducting his inspection, failed to comply with OHS requirements applicable to all visitors to the worksite including (as set out at [12] in the amended statement of claim):

(a)    a requirement to do the following prior to entering the Site:

(i)    sign the Visitor Register;

(ii)    complete a visitor induction; and

(iii)    make a COVID-19 Mandatory Health Declaration

(Visitor Entry Requirements);

(b)    a requirement to do the following at all times while on the Site:

(i)    be accompanied by an escort from CBGU JV;

(ii)    read and obey all safety signs on the Site; and

(iii)    not enter any areas on the Site to which access was restricted

(Visitor Conduct Requirements);

(c)    to comply with the demarcation between areas of the Site that are suitable for visitors and areas that have restricted or no access; and

(d)    to comply with the various signage containing health and safety warnings and directions to persons on the Site.

Particulars

Those requirements were recorded in a suite of documents including: WHS Management Plan of 12 May 2021, COVID-19 Project Management Plan of 28 June 2021, Security Management Plan of 23 April 2021, COVID-19 Mandatory Health declaration and the Visitor Induction Declaration.

8    By reason of his conduct, it was alleged that Mr Rielly breached ss 499 and 500 of the FW Act. Section 499 of the FW Act provides:

Occupational health and safety requirements

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

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

Note 2:    The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

9    Section 500 of the FW Act provides:

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).

10    At trial, the primary judge heard evidence from various witnesses for the respondent in support of the allegations, being Mr Hinrichsen, Mr Bekkers, Mr Maher and Mr Taylor, all employees of the occupier. The respondent’s evidence focused both upon what happened during Mr Rielly’s visit as well as the usual practice of the occupier with regards to the visitor entry and visitor conduct requirements. Mr Rielly did not give evidence on his own behalf, claiming privilege against self-incrimination.

11    The primary judge found that Mr Rielly failed to comply with the visitor entry requirements by refusing to sign the visitor register and complete an induction, in circumstances where it was reasonable for these requirements to be imposed and complied with: LJ [21]-[23]. Although his Honour accepted that there was evidence that the entry requirements were not routinely enforced, this did not “absolve” Mr Rielly, in his capacity as a visitor, from compliance: LJ [26]. His Honour explicitly rejected the appellants’ submission that Mr Rielly could have complied with the requirement had he been offered an oral sign-in and induction, finding that Mr Rielly’s “intransigent stance” meant it was unlikely he would have agreed: LJ [28].

12    His Honour was not satisfied, however, that the making of a COVID-19 Mandatory Health Declaration was a necessary requirement, because at the relevant time there was no such requirement applicable to open air worksites: LJ [23].

13    In relation to Mr Rielly’s conduct during the inspection, the primary judge found (at LJ [31]) that Mr Rielly disobeyed instructions conveyed and requests made to him by the occupier’s employees including:

(a)    not to enter the tower crane pad;

(b)    to leave the tower crane pad;

(c)    not to enter the restricted area; and

(d)    to leave the restricted area;

in circumstances where the purpose of each was to ensure that Mr Rielly “did not suffer an injury on-site”: LJ [33]. His Honour did not accept the respondent’s submissions that Mr Rielly would have been unduly delayed or frustrated in carrying out his inspection if he had complied with the requests made of him: LJ [37].

14    Accordingly, the primary judge found that the pleaded breaches of ss 499 and 500 of the FW Act were made out, save for the COVID-19 Mandatory Health Declaration. As Mr Rielly was an official of the first appellant, it was also taken to have engaged in the contraventions pursuant to ss 793 and 550 of the FW Act.

Appeal grounds

15    The notice of appeal asserts nine grounds of appeal as follows:

Visitor Entry Requirements – s 499

1.    The learned trial judge erred at [21] of the liability judgment (Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FedCFamC2G 101) in finding that the Visitor Entry Requirements were an occupational health and safety requirement for the purposes of s 499 of the Fair Work Act 2009 (Cth).

2.    The learned trial judge erred by failing to assess whether the requests to comply with the Visitor Entry Requirements were reasonable.

3.    The learned trial judge erred at [23] and [29] of the liability judgment by determining that the requests to comply with the Visitor Entry Requirements, other than the Covid declaration requirement, were reasonable and that the second appellant had contravened s 499 of the Act.

Visitor Conduct Requirements - s 499

4.    The learned trial judge erred at [31] of the liability judgment in finding that the second appellant failed to comply with:

(a)    requests to not enter upon the tower crane pad; and

(b)    requests to leave the tower crane pad.

5.    The learned trial judge erred at [34] and [35] of the liability judgment in finding that the second appellant failed to comply with requests that he be accompanied by an escort.

6.    The learned trial judge erred by failing to assess whether the requests to comply with the Visitor Conduct Requirements were reasonable.

7.    The learned trial judge erred at [31], [36], and [37] of the liability judgment by determining that the requests to comply with the Visitor Conduct Requirements were reasonable and that the second appellant had contravened s 499 of the Act.

Section 500

8.    The learned trial judge erred in finding at [40] and [41] of the liability judgment that the second appellant acted in an improper manner in contravention of s 500 of the Act, and should have found that the second appellant lawfully exercised his rights of entry.

Penalty

9.    If the appellants succeed on some of, but not all, grounds 1 to 7, the learned trial judge erred by taking into account an irrelevant consideration, or mistaking the facts, or both, in the assessment of penalty in the penalty judgment (Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2023] FedCFamC2G 564).

16    It is convenient to address the appeal grounds in groups.

Grounds 1, 2 and 3

17    The first issue is whether the primary judge erred in his finding that OHS policies and plans at the worksite were requirements within the meaning of s 499 of the FW Act. The primary judge reproduced in considerable detail large portions of the affidavit evidence-in-chief of employees of the occupier at LJ [13] (Mr Maher) and LJ [15] (Mr Bekkers). He found that Mr Maher’s evidence was corroborated by the evidence of Mr Bekkers, Mr Hinrichsen and Mr Taylor. Although each was cross-examined, the primary judge accepted the evidence of each on the visitor entry and visitor conduct issues, noting that each witness was “forthright, appeared honest, and gave evidence to the best of their ability bearing in mind the passage of a significant period of time”: LJ [14].

18    Primarily relevant to this issue is the affidavit evidence of Mr Maher, which in summary was as follows. There were several safety risks at the worksite including collisions with heavy machinery and falls from heights. The occupier implemented several control measures to eliminate or minimise safety risks including the delineation of accessways for heavy vehicle movements, entry gates to prevent members of the public from accessing the worksite and pre-start meetings each day to discuss the programme of works and the major site risks. Additional safety requirements were implemented for visitors, primarily because they were likely to be exposed to unfamiliar safety risks. The visitor requirements included reporting to the sign-in area on Lot 1 to undertake a visitor induction, completion of a mandatory visitor COVID-19 Mandatory Health Declaration and a requirement to be always escorted by a representative of the occupier whilst on the worksite and to comply with any relevant directions given by a representative of the occupier.

19    On 1 July 2021, a contractor was performing work on Lot 3 including excavation and retention work for the construction of an underground shaft. There had been intermittent showers that morning. The head contractor did not require personnel to work whilst it was raining if it was not safe to do so. Examples include working with electric power tools. Some personnel worked during periods of rain, and as an example traffic controllers continued to work whilst it was raining on 1 July 2021. Those personnel were dressed in appropriate wet weather gear.

20    Inside Lot 3, there was a communal area for workers next to the entrance gate. Behind it there was an excavator and a tower crane base. The tower crane base was accessible by a set of scaffold stairs. A restricted area had been set up, with a gravel road, to facilitate heavy vehicle transport of materials. It was appropriately marked with hard barricading, delineated walkways and signage. Only certain persons were authorised to enter the restricted area.

21    Mr Maher arrived at the worksite early in the morning on 1 July 2021. At approximately 9 am, the worksite was visited by two officials from the CFMMEU. Each completed the visitor induction requirements, was escorted by an employee of the occupier and complied with all relevant safety rules. Later that day, at approximately 2.30 pm, Mr Maher was alerted to the fact that Mr Rielly had approached other employees of the occupier outside of Lot 3. Mr Maher proceeded to that location from Lot 1, a distance of approximately 100m. Mr Maher explained to Mr Rielly that in order to enter the worksite, he would have to attend an induction on Lot 1 so that he could be “checked in”. The conversation continued:

Mr Maher: We need to take you the [sic] induction area at the lot one entry so that we can check you in and walk through the visitor induction process with the safety lead.

Mr Rielly: I don’t want to go back to the office, I want to go on site.

Mr Maher: Our procedures require all visitors to report to the main site office.

…..

Mr Maher: What is this visit regarding?

Mr Rielly: I have a few concerns regarding workers in the rain, also I want to take a look at your access and egress.

Mr Maher: We’re happy for you to continue onto site, but first we need to get you to come back to lot one and sign in.

Mr Rielly: I don’t need to do that. I want to go onto site.

Mr Maher: Our procedures require this of all our visitors. If you can wait here, Mark Taylor is our safety guy, he’s on his way down here and can work through the process with us.

22    Mr Rielly did not agree to attend Lot 1 for that purpose. Shortly thereafter, he followed a subcontractor through the entry gate. He was advised by Mr Bekkers that he could not enter the worksite without permission, and that he would “need to go back to Lot one and sign in”. Mr Rielly did not respond.

23    A submission was put to the primary judge that Mr Rielly could have been, but was not, afforded an opportunity of orally complying with the visitor entry requirements. The primary judge rejected that contention at LJ [27] finding that:

…The Court finds that the fact that he wasn’t given that opportunity was, in the circumstances, of no significance. Mr Rielly had been directed to comply with the requirements but steadfastly refused to do so. The Court finds that even if he had been given an opportunity to orally undertake visitor entry requirements, he would have been unlikely to have agreed. Requests and requirements given to him were treated with disdain and ignored.

24    There is no appeal ground against that finding or the adjunct finding at LJ [28] that:

The intransigent stance taken by Mr Rielly when first approached by representatives of the occupiers of the site clearly indicated his intention to be obstructionist and non-compliant from the outset. In such circumstances, and having regard to the relatively short period of time between when Mr Rielly arrived at the site and when he entered the site over the objections of the [occupier’s] representatives then present, the Court finds that the representatives of the [occupier] on site didn’t unreasonably fail to canvass with Mr Rielly whether he would, or would not, undertake visitor site entry requirements orally.

25    The amended statement of claim at paragraph [12] particularised the visitor entry and visitor conduct requirements as comprised within a suite of documents including a WHS Management Plan of 12 May 2021, a COVID-19 Project Management Plan of 28 June 2021, a Security Management Plan of 23 April 2021, a COVID-19 Mandatory Health Declaration and a Visitor Induction Declaration. Those documents were in evidence before the primary judge. Within those documents, the following should be noted. The Visitor Induction Declaration requires information as to the name of the visitor, the project area within the worksite, the employing entity of the visitor and the purpose of the visit. The first full sentence reads:

Before proceeding on to the site we request you read and understand the following information, take note of your responsibilities and also any instructions given.

26    Next follows a list of hazards and a statement whereby the visitor is required to sign and acknowledge awareness of “my obligations” including, wearing appropriate personal protective equipment, reading and obeying all site safety signs and being accompanied at all times “when on site until I have had a site induction”. The design and construction subcontract between the principal and the occupier, at cl 17 requires there to be a WHS and quality management system. By cl 17.3, the occupier accepts responsibility “for all aspects of health and safety” relating to the project and the worksite, is obliged to carry out the contract so as to ensure “so far as is reasonably practicable, the health and safety of workers and other persons” and accepts broad ranging responsibilities to comply with all applicable health and safety and workplace health laws.

27    There is also a WHS Management Plan dated 12 May 2021. Clause 1.1 states that its purpose includes the identification of safety and health obligations, hazards and risks associated with the worksite. The primary objective at cl 1.2 is to ensure that the works are undertaken and completed safely. Within the appendices there is a table entitled Element 7 - Training and Competence, where cl 7.1 requires there to be established “minimum” inductions including “Project Induction” and “Visitor Induction”. The Visitor Induction must include “as a minimum” the “Project emergency response arrangements”. By cl 7.2, all relevant persons must receive and successfully complete an induction “prior to commencing work or on arrival at site”. Clause 7.10 requires that workers and visitors be given appropriate emergency response training, and in particular that there be communication of the requirements of the emergency response plan to all workers and visitors “as part of the Project Induction/Visitor Induction.”

28    There was cross-examination of the occupier’s witnesses to the effect that the visitor sign-in and induction process was not uniformly enforced. The evidence most favourable to the appellants was given by Mr Hinrichsen:

MR CLIFT: That policy of requiring staff and visitors to sign-in and out wasn’t uniformly enforced, was it?---Yes, it was.

In fact, I suggest to you, Mr Hinrichsen, that it wasn’t really enforced at all?---It was by the person who the visitor was visiting at the time.

In fact, I suggest to you, Mr Hinrichsen, that it wasn’t really enforced at all?---It was by the person who the visitor was visiting at the time.

HIS HONOUR: I’m sorry. What did you say then?---So if you had a representative coming to visit you at the time, you would need to escort them through a visitors induction with the Damstra terminal

All right. Well, what if they weren’t visitors? What if they were workers on site?---Sorry. I don’t understand.

Well, I will leave it to Mr Clift.

MR CLIFT: Do I understand your answer, Mr Hinrichsen, to be that whether or not a visitor signed in would depend on the person they were visiting?---No.

I will perhaps ask the earlier question again. I suggest to you that the signing in and signing out policy for both visitors and staff was not uniformly enforced?---Yes.

You agree with that?

HIS HONOUR: Well - - -

MR CLIFT: And I suggest that it wasn’t enforced at all?---No.

HIS HONOUR: Well, what do you mean “no”?

MR CLIFT: Do I understand your evidence to be that it was enforced but not much?---Yes.

29    Mr Taylor gave evidence to the effect that union officials were ordinarily signed in orally, particularly in the context of the morning attendance of officials from the CFMMEU:

Did you have a practice of signing people in orally?---Yes.

You also didn’t do an induction – sorry, they didn’t do an induction themselves either, did they?---My recall is that they refused to – to partake in it. So we, in those situations, would do it orally. Most people – most others would just, you know, do – follow the proper process normal – normal process.

So you did an oral induction that day with Mr Seiffert and Mr Blakeley?---I – I don’t recall, actually.

But that was your usual process when someone refused to sign in?---Well, the only – the only persons that refused to do it are – are union officials.

But when they did, you would give them an oral induction; is that correct?---If they stood there long enough and let me do it.

And you would orally sign them in?---Yes.

And you would take written notes of that?---We would ask them to sign in to a visitors register at the very least; they would generally refuse.

30    The finding of the primary judge that is impugned is at LJ [21]:

The Court finds that Mr Rielly failed to comply with the visitor entry requirements duly given to him on 1 July 2021. It is of no moment that the two union officials who attended onsite for the first visit were given an oral onsite induction, as well as being orally signed in and given a requirement to make oral COVID declarations. The requirement for compliance with basic entry requirements was recognised by such union officials and complied with, albeit that the mode 0f compliance differed from the normal visitor written sign-in entry requirement procedures contained in the written procedures manual. As a matter of construction, a valid requirement may be made or given under s. 499 of the FWA, notwithstanding that the actual requirement which was given differed from earlier requirements given to other different visitors earlier on the same day

31    Crisply summarised, the appellants’ argument is that because the sign-in and induction practice was not insisted upon with respect to all contractors and visitors to the site, it did not amount to an OHS requirement that applies to the premises within the meaning of s 499 of the FW Act. We are unable to accept that submission. It conflates what were the OHS requirements for the worksite with their enforcement. The contractual clauses we have summarised required compliance with relevant OHS laws, there was a WHS Management Plan and an express requirement for visitor induction, including written acknowledgement of worksite risks and visitor obligations. These were requirements relating to OHS applicable to the worksite. They did not cease to have that character because on the evidence their enforcement was not uniform as between workers, visitors and union permit holders.

32    In this respect we agree with the reasoning of Snaden J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) [2020] FCA 1727 at [105] as to what is a “requirement” within the meaning of the section:

To qualify in that regard, it is not necessary that an occupational health and safety directive should find prior expression in any written instrument, such as a safety plan or policy that pertains in some way to particular premises: Darlaston v Parker (2010) 189 FCR 1, 27 [101] (Flick J). There is no obvious reason why an occupier’s request should, if it is to fall within the contemplation of s 499 of the FW Act, be one that applies generally to all others in attendance at the particular site. Plainly enough (and for the purposes of s 499 of the FW Act), a request for compliance with one that doesn’t might more readily be impugned as unreasonable; and a requirement that applies only selectively might more easily be impugned as one that isn’t genuinely calculated to reduce exposure to health or safety risks. Nonetheless, conduct upon which an occupier insists in order to promote safety or good health at particular premises is likely to be conduct that reflects an “occupational health and safety requirement that applies to the premises”, no matter how narrow its scope or recent its creation.

33    The evidence before the primary judge did not establish that the visitor sign-in and induction process was not one genuinely designed to reduce health and safety risks to the extent that it was not uniformly applied. The differing approach to members of the CFMMEU, who may have been orally inducted (if at all) does not detract from the documented requirements applicable to visitors to the worksite that were in place at the time. An additional acute difficulty for the appellants is the unchallenged finding at LJ [28] that Mr Rielly was intransigent and obstructionist from the outset and would not have in any event undertaken the visitor site entry requirements orally.

34    The second issue raised by grounds 2 and 3, concerns the reasonableness of the visitor entry requirements. The appellants’ arguments emphasise that Mr Rielly had a statutory right of entry and inspection and that the broad purpose of s 499 of the FW Act is to strike a balance between the rights of a permit holder and those of an occupier, but the primary judge failed to undertake that balancing process before concluding at LJ [23] that the visitor entry requirements were reasonable.

35    The argument commences with certain provisions of the WHS Act. Section 117 confers a right of entry to a workplace in favour of a permit holder “for the purpose of inquiring into a suspected contravention” that “relates to, or affects, a relevant worker”. Section 118 is concerned with rights that a permit holder may exercise while at a workplace, including to inspect systems, plant and structures. There is a right to consult with relevant workers in relation to the suspected contravention. Notice of entry and the suspected contravention is required by s 119, unless to do so would “defeat the purpose of the entry” or “unreasonably delay” the permit holder “in an urgent case”. There was no suggestion in this case that the requirement to give notice of entry would have defeated the purpose of Mr Rielly’s entry or that the case was urgent.

36    Section 128 is concerned with reasonable requests by the occupier and provides:

A WHS entry permit holder must not exercise a right of entry to a workplace under division 2 or 3 unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with management or control of the workplace to comply with—

(a)    any work health and safety requirement that applies to the workplace; and

(b)    any other legislated requirement that applies to that type of workplace.

37    It will be noted that this provision is broadly similar to s 499 of the FW Act. Counsel for the appellants submits that the purpose of s 499 is to strike a balance between the rights of a permit holder and those of a workplace occupier, extending in the latter to the obligation to maintain a safe place of work. The appellants’ contention is that the primary judge failed to approach the reasonableness question in that way at LJ [23], which records a conclusion that save for the COVID-19 Mandatory Health Declaration “it was reasonable for the other visitor entry requirements to be imposed and complied with” and at LJ [29], which records a like conclusion.

38    That s 499 reflects a balancing of respective interests is not in doubt: Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61-62 (Keely, Gray and Ryan JJ); Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241 at 257 (Gray J) and Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85; 203 FCR 389 at [59]-[65] (Flick J, Jessup and Tracey JJ concurring). As orally developed, the appellants’ argument is that the entry requirements operated to impede or hinder the exercise of Mr Rielly’s right of entry. That submission cannot be accepted because Mr Rielly did not give evidence that the entry requirements impeded or hindered him in any way. Nor was evidence to that effect elicited in the cross-examination of the respondent’s witnesses. No question of balancing the respective rights and interests arose on the facts. This was not an issue that the primary judge was required to resolve in the manner now contended.

39    Further, the submission reads selectively the reasons of the primary judge and distorts the context. We have set out above paragraphs [27] and [28] from the liability judgment. The only reasonableness question that arose on the evidence, whether Mr Rielly ought to have been offered an oral sign-in and induction, was decided adversely to the appellants on the intransigence and obstructionist findings.

40    For these reasons, there is no merit in grounds 1, 2 and 3.

Grounds 4, 5, 6 and 7

41    These grounds concern the visitor conduct requirements, following entry by Mr Rielly to the worksite. The particular findings of the primary judge were as follows. First at LJ [30] he accepted entirely the evidence of Mr Maher as to what transpired after Mr Rielly made his way onto Lot 3. That evidence is as follows. Mr Rielly walked to a lectern in the common area and began examining documents. Mr Maher advised Mr Rielly that certain documents, in the form of risk assessments, that he requested to view were stored on Lot 1, and it would be necessary to go there to “go through the sign-in process”. Mr Rielly did not respond. Mr Rielly then walked to a staircase leading to the tower crane base. From this vantage point, he viewed the worksite. He was not followed by any employee of the occupier. The requirement to “follow the correct induction process” was not repeated because Mr Maher “felt it would be futile to attempt to change his behaviour”. The tower crane was not in operation, and thus did not present any material safety risk at the time. Mr Maher’s evidence continued that: “I ensured that [Mr Rielly] remained within my view so I was able to monitor him without escalating the situation”.

42    Mr Rielly remained on the tower crane base for between two and three minutes. He then walked around to the other side of the worksite towards the restricted area. He was asked by Mr Bekkers where he was heading to, and the requirement to “come back to the office and sign in” was repeated. Once again, Mr Rielly did not respond, but proceeded to walk around the barriers that marked the restricted area. He was advised by Mr Bekkers to leave that area because he had not completed a sign-in. Again Mr Rielly did not respond. Shortly thereafter, Mr Taylor attended the worksite and engaged in a discussion with Mr Rielly. In consequence of that no further action was taken in relation to his entry to the worksite.

43    The primary judge at LJ [32] records that it was not put to Mr Bekkers in cross-examination that there had not been demands made of Mr Rielly to not enter upon the worksite, to leave the tower crane pad, to not enter the restricted area or to leave the restricted area. The reason for each of these instructions and request was to ensure that Mr Rielly did not suffer an injury whilst at the worksite: LJ [33]. At LJ [34], the primary judge recorded three submissions made on behalf of the appellants, to the effect that there had been no contravention because Mr Rielly had been escorted, there was no safety risk from the excavators nor any danger to him when he was in the restricted area. The primary judge made findings in relation to those submissions at LJ [35] as follows:

Dealing with each of those submissions, the evidence establishes that at no time during Mr Rielly’s site visit was any close presence to Mr Rielly of any of the occupiers’ representatives consensual from Mr Rielly’s perspective. From the outset, Mr Rielly was told not to go on site but he ignored such reasonable requests, unilaterally deciding to enter upon Lot 3 when an opportunity first presented itself. As to the excavators, though they were not operative at the time, the engines were nevertheless in unfamiliar surroundings to Mr Rielly, and he could have slipped on uneven ground and come into contact with one. As to Mr Rielly being in the restricted area, Mr Bekkers drew a distinction between traffic controllers being able to control the risk of injury from traversing vehicles, and to there being no risk at all as a result of the presence of such traffic controllers. It is one thing for a traffic controller to control traffic, but quite another thing for a traffic controller to prevent injury to an unauthorised visitor who is found to be on-site. Mr Hinrichsen gave supportive evidence that aggregate had been placed in and about the site, and that that could also have been the source of danger to Mr Rielly due to his unfamiliarity with the site when walking around when on it. Mr Hinrichsen confirmed that Mr Rielly entered onto the site unescorted, but that Messrs Taylor, Maher and Bekkers followed him. The Court finds that the only likely way that Mr Rielly would have been effectively discouraged from entering upon the site, or otherwise going where he wanted to when he had entered upon the site, would have been for him to have been physically restrained. Employees in the position of those present on the day shouldn’t be put in that position of possible physical harm to themselves when they have already given reasonable instructions relating to visitor entry requirements, and had made other requests, for Mr Rielly to leave the site once he had entered upon it.

(Footnotes omitted.)

44    These findings caused the primary judge to conclude at LJ [36] that Mr Rielly failed to comply with reasonable requests not to enter the worksite whilst unaccompanied, to read and obey all safety signs, to not enter a restricted area and to only confine himself to areas suitable for visitors, each of which the primary judge concluded were unreasonable acts or omissions in contravention of s 499 of the FW Act. Finally at LJ [37] the primary judge found that:

[H]ad Mr Rielly complied with the reasonable requests made of him, both before and after the time of his unauthorised entry upon the site, Mr Rielly would not have been unduly delayed or frustrated in the carrying out of his workplace health and safety site inspection which he was qualified to undertake. The Court does not accept the respondent’s submissions to the contrary.

45    The appellants submit in support of grounds 4 and 5 that the evidence did not support findings that Mr Rielly failed to comply with a request to not enter upon the tower crane pad and later requests to leave it. Mr Maher in evidence-in-chief said that neither he nor Mr Bekkers followed Mr Rielly to the tower crane base and stated that he did not repeat Mr Bekkers’ “directions to follow the correct induction process or make any comments to him as I felt it would be futile to attempt to change his behaviour”. In cross-examination, he agreed that he “did not say anything else” to Mr Rielly when he was on the tower platform.

46    Mr Bekkers’ evidence-in-chief was that after Mr Rielly had ceased looking through documents on the lectern, he then walked to the scaffold stairs and onto the tower crane pad at which point Mr Bekkers said: “Don’t go up there, come back down, you’re not authorised to go up there”, to which Mr Rielly did not respond. He remained on the tower crane pad. His evidence continued:

…I repeated my direction for Mr Rielly to come down another one or two times. Mr Rielly did not respond to either request. While Mr Rielly was on the tower crane pad, Mr Taylor, Mr Maher, Mr Hinrichsen and I remained at the communal area, however, we ensured that Mr Rielly was always within our line of sight. After approximately two minutes, Mr Rielly walked back down the scaffold stairs and into the communal area.

While Mr Rielly was on the scaffold stairs, Mr Maher said: “Please come down from there, we need to discuss your 117 notice.” Mr Maher repeated this direction again at least two times during the time Mr Rielly was on the tower crane pad.

47    When cross-examined Mr Bekkers gave this evidence:

He went up there while the four of you waited for him in the shaded pre-start area?---Yes.

And the four of you watched him the whole time?---That’s right, yes.

He spent two or three minutes up there?---That sounds about right.

And nobody said anything to him while he was up there?---I believe he was asked to come down, from memory.

48    Mr Hinrichsen’s evidence-in-chief was that as Mr Rielly began walking toward the stairs that led to the tower crane pad, Mr Bekkers requested Mr Rielly to come back, that Mr Rielly did not respond and walked up the stairs onto the tower crane pad, that Mr Bekkers then said to Mr Rielly “Come down from there”, and that Mr Maher said “You need to get down from there”.

49    However, Mr Hinrichsen in cross-examination agreed that “no one said anything to [Mr Rielly] while he was up there” [that is, on the tower crane pad].

50    Mr Taylor did not arrive at the scene until Mr Rielly had left the tower crane pad.

51    In our view, there was evidence to support the finding of the primary judge that a request was made of Mr Rielly not to enter upon the tower crane pad. There was also evidence that, having entered upon it, a request was made to “come down”, which was the evidence of Mr Bekkers in chief and in cross-examination. Although there are inconsistencies between the accounts of Mr Bekkers (that both he and Mr Maher requested Mr Rielly to leave the tower pad), Mr Maher (that he did not ask Mr Rielly to come down) and Mr Hinrichsen (in chief that both Mr Bekkers and Mr Maher requested Mr Rielly to come down from the tower crane pad, but in cross-examination that no one said anything to Mr Rielly whilst he was on the tower pad) it was open to the primary judge to find in accordance with the evidence of Mr Bekkers who had a positive recollection of making a request to that effect which was unshaken in cross-examination that he had done so. For these reasons, ground 4 fails.

52    Ground 5 contends error by the primary judge in finding at LJ [35] and [36] that Mr Rielly failed to comply with a reasonable request “not to enter upon the site unaccompanied”. In summary the evidence on this issue in cross-examination was as follows. Mr Maher accepted that whilst on the worksite, Mr Rielly was within his sight the entire time. Mr Hinrichsen accepted that he, Mr Maher, Mr Bekkers and Mr Taylor each “watched him the whole time”. Mr Taylor denied that he escorted Mr Rielly “around the site”, but what is clear from his other evidence is that he had personal discussions with Mr Rielly after the crane tower pad incident. Mr Bekkers disagreed that Mr Taylor had escorted Mr Rielly.

53    The respondent’s pleaded case was that it was a requirement that Mr Rielly “be accompanied by an escort” from the occupier. The primary judge found at LJ [35] that after Mr Rielly had entered the worksite, Mr Taylor, Mr Maher and Mr Bekkers “followed him”. The respondent submits that distinction should be drawn between accompanying a visitor to the worksite and merely following a visitor about. The Visitor Induction Declaration, as we have noted, contains a warning that the person is about “to enter a construction zone and must be accompanied at all times”. By signing that document, the visitor acknowledges an obligation to “be accompanied at all times when on site”. No detail is provided in the documentation as to what that entails. As a matter of ordinary language, “accompany” has shades of meaning: primarily to go in company. It does not require one to be escorted; a more rigid and formal form of accompanying another, usually for protection, although extending to guidance or even courtesy. In our view, the finding of the primary judge that at all material times whilst on the worksite, Mr Rielly was followed, when considered in the context of the other evidence as to the various requirements that were made of Mr Rielly, both before his entry to the worksite and during his visit, ought to have led him to the conclusion that the respondent failed to make out its case that the requirement was that Mr Rielly be escorted. That conclusion is affirmed by the fact that the workplace policies pleaded as imposing this requirement, make no mention of being escorted whilst at the worksite. Being satisfied of that error, this ground succeeds.

54    Relatedly, grounds 6 and 7 succeed in part, corresponding with partial success on ground 5. They fail as to the balance. The primary judge did assess whether the visitor conduct requests were reasonable commencing at LJ [33], with his finding that the purpose of the requests was to address worksite safety and risk of injury to Mr Rielly, and the findings at LJ [35] plainly amount to an assessment of whether the particular requests were reasonable. Notably ground 6 contends a failure to assess, not whether the assessment was erroneous.

55    Ground 7 impermissibly invites a selective reading of LJ [31], [36] and [37], without reference to the whole of his Honour’s reasons and the appellants’ submissions in support do not account for the difference on the evidence between the requirements for workers and those for visitors. The primary judge did assess the reasonableness of the visitor conduct requirements. At LJ [9], his Honour found that the visitor conduct requirements “represented intended best practice”, in accordance with the evidence of the respondent’s witnesses. At LJ [33], as we have noted, his Honour makes his safety purpose finding. The findings and analysis at LJ [35] are each supported by the evidence and are comprehensive. Those findings found the reasonableness conclusions at LJ [36] and [37]. There is no error as contended.

Ground 8

56    The impugned findings of the primary judge are at LJ [40] and [41] are as follows:

The Court finds that in the face of reasonable requests being made of him, Mr Rielly knew or ought to have known that he had no valid reason for failing to comply with the reasonable visitor entry requirements made of him, or requests made to him not to enter upon the site.

The Court finds, as a consequence, that Mr Rielly acted in an improper manner in contravention of the provisions of s. 500 of the FWA.

57    The appellants’ submission is that the findings of the primary judge rest on the anterior errors concerning s 499 of the FW Act. Save for the pleaded requirement to be accompanied whilst at the worksite, this ground fails.

Ground 9

58    This ground is contingent on success of one or more of the preceding grounds. The pecuniary penalties imposed by the primary judge proceed by reference to each breach as found in the liability judgment. As we have explained, the agreed position is that this Court should redetermine the quantum of any pecuniary penalty conformably with the outcome of the appeal and following receipt of further submissions.

Conclusion

59    We order as follows:

1.    The appeal is allowed, in part.

2.    The declarations made in the Federal Circuit and Family Court of Australia (Division 2) in proceeding BRG 81 of 2022 on 21 February 2023 are varied by deleting from paragraph B, subparagraph (b)(i).

3.    The orders made in the Federal Circuit and Family Court of Australia (Division 2) in proceeding BRG 81 of 2022 on 29 June 2023 are set aside.

4.    The parties are to provide further written submissions as to what pecuniary penalties should be imposed consistently with these reasons limited to 3 pages as follows:

(a)    the respondent by 4 pm on 12 February 2024;

(b)    the appellants by 4 pm on 26 February 2024; and

(c)    the respondent in reply by 4 pm on 4 March 2024.

5.    Subject to any further order of the Court, the pecuniary penalties question will be determined on the papers.

Associate:

Dated:    29 January 2024