FEDERAL COURT OF AUSTRALIA
Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The proceeding is set down for further directions at 9.30 am on Friday 10 July 2015.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NEW SOUTH WALES DISTRICT REGISTRY | |
FAIR WORK DIVISION | NSD 180 of 2014 |
BETWEEN: | DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE Applicant |
AND: | CHAD ANTHONY BRAGDON First Respondent ANTHONY KONG Second Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Third Respondent AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES Fourth Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY INDUSTRIAL UNION OF EMPLOYEES QUEENSLAND Fifth Respondent |
JUDGE: | FLICK J |
DATE: | 3 JULY 2015 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 On 21 February 2014 an Originating Application and a Statement of Claim were filed in this Court. An Amended Originating Application and an Amended Statement of Claim were filed on 8 August 2014.
2 The Applicant is the Director of the Fair Work Building Industry Inspectorate (the “Director”) as appointed pursuant to s 15(1) of the Fair Work (Building Industry) Act 2012 (Cth).
3 The first two Respondents are Messrs Chad Bragdon and Anthony Kong. The Third Respondent is the Construction, Forestry, Mining and Energy Union (the “CFMEU”). The Fourth Respondent is the Australian Building Construction Employees’ and Builders Labourers’ Federation (Queensland Branch) Union of Employees (the “BLF Qld”). The Fifth Respondent is the Construction, Forestry, Mining and Energy Industrial Union of Employees Queensland. Mr Bragdon is employed as an organiser for the CFMEU Qld. He is the holder of an entry permit issued under s 512 of the Fair Work Act 2009 (Cth) (the “Fair Work Act”) and an entry permit issued by the Queensland Industrial Registrar pursuant to s 134 of the Work Health and Safety Act 2011 (Qld) (the “Queensland Work Health and Safety Act”). Mr Kong is employed as an organiser for the CFMEU Qld. He too is the holder of entry permits issued under the Fair Work Act and the Queensland Work Health and Safety Act.
4 The events which give rise to the present dispute occurred on the morning of 6 June 2013. The Director maintains that the events occurred at about 7.10 am; the Respondents maintain that the time was about 6.30 am. But the precise time matters not. What matters are the circumstances surrounding the entry of Messrs Bragdon and Kong onto a construction site at Mascot in Sydney and their conduct whilst on site. The construction site was a parking facility at the Sydney Domestic Airport. The head contractor on site was Abigroup Contractors Pty Ltd (“Abigroup”).
5 The Director maintains that those events gave rise to contraventions of ss 497, 500 and 503 of the Fair Work Act. Declaratory relief is sought. The Director also seeks the imposition of penalties upon Messrs Bragdon and Kong and each of the Unions. The issues surrounding whether any or all contraventions as alleged have been made out were heard in advance of any hearing as to the relief to be granted.
6 In very summary form, a central plank in the case advanced on behalf of the Respondents was an assertion that they had been “invited” onto the site and that thereafter there arose no exercise of statutory rights. Messrs Bragdon and Kong maintain that they were “invited” on to the site for “training” purposes. Whatever happened on site, the Respondents contend, was not the exercise of any statutory right. If this be correct, the Respondents contend that provisions such as those requiring the production of an entry permit upon request had no application. Other arguments are also advanced on their behalf as to why each of the provisions found in ss 497, 500 and 503 had no application.
7 It is concluded that the events occurring on the morning of 6 June 2013 did constitute contraventions of ss 497, 500 and 503 of the Fair Work Act.
THE EVIDENCE & FINDINGS OF FACT
8 The facts relevant to the resolution of the present dispute are to be found partly in a Statement of Agreed Facts, partly in affidavits filed on behalf of both the Director and the Respondents and partly in the oral evidence adduced during the hearing itself.
The facts as agreed
9 At the outset of the proceeding the Director tendered a Statement of Agreed Facts pursuant to s 191 of the Evidence Act 1995 (Cth) (the “Evidence Act”).
10 That Statement addressed the “relevant events” as follows (without alteration):
RELEVANT EVENTS
14. In the morning on 6 June 2013 (the precise time is in dispute), the First and Second Respondents and Mr Vicente entered the Site.
15. The First and Second Respondents were wearing hard hats with CFMEU and or BLF stickers on them.
16. Whilst on the Site, the First and Second Respondents spoke to workers (the Concreters) of De Martin and Gasparini (DMG), MF Enterprises Pty Ltd (MF) and Marques Formwork (Marques).
17. DMG, MF and Marques were engaged by subcontract to Abigroup. At the relevant time, the Concreters and others were undertaking work at the Site.
18. Whilst on the Site, the First respondent identified and referred to alleged safety concerns and breaches of safety legislation.
19. Whilst on the Site, the Second Respondent was requested to produce his entry permit/s on three occasions by a representative of Abigroup, Mr Shane Tozer.
20. The Second Respondent did not produce his entry permit/s for inspection when requested to do so by Mr Tozer.
21. When requested to show his entry permit/s the Second Respondent did not tell Abigroup that he did not hold an entry permit under the NSW WHS Act.
22. When requested to show his entry permit/s the Second Respondent said he would provide his permit/s later.
23. The Second Respondent, despite failing to produce any entry permit/s, remained on the Site.
24. On 6 June 2013 the Second Respondent did not have an entry permit under the NSW WHS Act and was therefore not authorised to exercise a right of entry for work health and safety purposes under the FW Act and the NSW WHS Act to enter, and remain on, the Site that day.
25. Whilst on the Site, the Second Respondent was asked to identify himself to Mr Tozer. The Second Respondent identified himself as “Steve Irwin”.
26. The Second Respondent is not “Steven Irwin”.
27. Whilst they remained on the Site, the First Respondent continued to raise and discuss alleged safety issues.
28. The First and Fourth Respondents provided a Safety report to Abigroup on 7 June 2013.
The affidavit evidence
11 The Director relied upon affidavits from:
The Director himself, Mr Peter Darlaston;
Mr John Campanaro, the Safety Co-ordinator employed by Abigroup;
Mr James Wagstaff, the Site Manager;
Mr Shane Tozer, the Abigroup Project Manager; and
Mr Gaby Daher, the Project Manager who was supervising a concrete pour at the site on 6 June 2013.
With the exception of the Director and Mr Daher, the remaining witnesses called on behalf of the Director were briefly cross-examined.
12 The Respondents relied upon affidavits from:
Mr Antonio Vicente, an organiser employed by the CFMEU;
Mr Bragdon; and
Mr Kong.
Each of these witnesses was cross-examined.
13 Although there was substantial agreement as to many of the facts, there were some differences. Given the nature of the proceedings, such facts as are found need to satisfy the standard set forth in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 363 per Dixon J and as now embraced by s 140(2) of the Evidence Act.
The facts as found
14 The events as they unfolded on 6 June 2013, it is considered, can be divided chronologically into the following four stages:
the initial conversation which occurred upon the arrival on site of Messrs Vicente, Bragdon and Kong;
the events immediately thereafter when Messrs Vicente, Bragdon and Kong entered the site and the exchange that occurred between Messrs Bragdon and Kong and workers who were engaged in a concrete pour;
a meeting of the site safety committee; and
a meeting with all of the workers – a meeting at which “Abigroup management” were asked to leave.
There was relative certainty as to the content of the initial conversation. But there were different accounts given of the events that immediately followed. Findings of what in fact transpired must necessarily be made against the back-drop of an assessment of the credit of those giving evidence. Findings must also be made against the background of there being some uncertainty as to which of the meetings the different witnesses were referring. However, what remains most important is the need to make findings of what was in fact said.
15 To a very large extent the accounts given by Messrs Campanaro, Wagstaff, and Tozer were not put in issue by Messrs Bragdon and Kong. To a very large extent, the forensic course plotted by the Respondents was not to put in issue (for example) the fact that they received requests to produce their entry permits; the forensic course was to rely upon the assertion that Messrs Bragdon and Kong were present on site as “invitees” and not pursuant to any statutory right of entry. But where there is a divergence in the accounts given, the evidence of Messrs Campanaro, Wagstaff and Tozer is accepted. Findings are to be made accepting their evidence. Neither Mr Bragdon nor Mr Kong presented as a witness keen simply to respond to questions put to them; the manner in which each answered questions – particularly in the case of Mr Kong – was, with respect, more akin to the manner in which each was said to have behaved on site. Mr Kong, it may be noted, accepted that his response to one question put to him on site was that of a “smart-arse”. The same description can be ascribed to the manner in which he gave some of his evidence during the hearing.
The arrival on site – an invitation to enter
16 The events which preceded 6 June 2013 assume marginal relevance – but should briefly be mentioned.
17 The Respondents do not rely upon these preceding events as the basis for the “invitation” which they contend had been extended to Messrs Bragdon and Kong to enter the site. Nevertheless, these events do have some relevance to the extent to which the concerns over safety that Messrs Bragdon and Kong later expressed were soundly based in fact.
18 It is sufficient to trace events back to 31 May 2013 when Mr Vicente arrived on site as an organiser of the CFMEU. The Abigroup Safety Co-ordinator, Mr John Campanaro, met Mr Vicente and introduced him to Mr Tozer, the Abigroup Project Manager. A complaint had been made about the way form tables were being moved on site with the use of forklifts. This problem, however, had already been noticed and instructions had been issued the previous day to address the problem.
19 Messrs Campanaro, Vicente and Tozer moved onto the site and observed the movement of the form tables. Mr Vicente expressed his satisfaction with the procedures now being implemented.
20 On 4 June 2013 there were a number of meetings. Mr Vicente was invited to attend. Members of a safety committee were elected. Mr Gregoriou was appointed as the health and safety representative. A number of related documents were apparently thereafter signed in the main office of Abigroup on site by Mr Gregoriou and Mr Tozer. After these documents had been signed, Mr Vicente showed Mr Campanaro a 200-page document titled “Work Health & Safety – Training Courses – Entry Permit Holder”. That document, later referred to by Mr Vicente as his “bible” regarding industrial rights, was indeed a detailed document. With reference to the need for an entry permit holder to “not delay, hinder or obstruct any person or disrupt work”, the document stated in part as follows:
Court and tribunal decisions dealing with similar prohibitions under industrial relations and occupational health and safety laws have found an entry permit holder had contravened the right of entry provisions of the now repealed Commonwealth Workplace Relations Act 1996 by intentionally and unreasonably hindering and obstructing persons from carrying out concrete pouring at the workplace.
A little later, when addressing the need for a permit holder to act reasonably, the document further provided as follows:
… Relevant considerations in determining whether or not the disruption caused by the entry would be unreasonable could include:
• Whether the consultations would disrupt the whole or a substantial part of the work. For example, consultation with all workers at a workplace at the same time, in particular if the PCBU has put forward alternative arrangements which enable consultation to occur in a staged manner which minimises or eliminates disruption to work.
• Whether the consultations will impact on time critical work (e.g. concrete pours), particularly busy working periods (e.g. a bank at lunch time) or result in failure to meet contractual deadlines (e.g. the dispatch and delivery of a product).
21 On 5 June 2013 Mr Vicente again visited the site and an inspection was carried out in the company of Mr Wagstaff (the Site Manager) and Mr Gregoriou. A number of issues were noted and addressed. But no concern was expressed by Mr Vicente during that inspection and, in particular, no concern was expressed in respect to an issue which was later to assume significance – namely, a concern with the stretcher stairs from the car-park.
22 Although there emerged some suggestion that a “standing invitation” to enter the site may have been extended during one or other of these meetings to enter the site, Messrs Bragdon and Kong during submissions shunned any such suggestion.
23 The invitation relied upon is said to have been extended upon their arrival on site on 6 June 2013. The conduct thereafter – including the absence of any request that they leave the site – is said to be only consistent with the invitation to enter the site never being withdrawn.
24 Of central importance to the invitation relied upon is the following conversation between Mr Campanaro and Mr Vicente immediately upon their arrival. Mr Vicente introduced Mr Bragdon and Mr Kong – but Mr Campanaro did not then “catch” Mr Kong’s name. It was only after they had left the site that Mr Campanaro learnt of his identity. It was nevertheless after the introductions that the following conversation occurred:
Vicente : “They’ve come to look at the site.”
Campanaro: “OK, Tony you know that Abigroup has a policy about PPE on site. Do you have safety gloves and glasses?”
Mr Bragdon and Mr Kong stated that they had gloves but did not have gloves. The conversation continued:
Campanaro : “Ok that’s fine, just stay here (in the car park) and I’ll get you some gloves and we’ll walk in (to the site) together.”
Mr Campanaro maintained that they all agreed. Mr Campanaro then left them and went to the site office which is adjacent to the car park to collect some safety gloves
25 “PPE” is a reference to “personal protective equipment”. In the present case, that included safety goggles and gloves. “Most builders”, according to Mr Vicente, “use … safety goggles and gloves…”. That was, he said, “a reasonable safety requirement”. Mr Campanaro repeated in cross-examination that he was “content for them – subject to having PPE – [to] go on site and have a look around”. Neither during that conversation, nor at any other point of time during their visit, did Mr Campanaro ask them to produce any entry permit or ask them to leave the site. Mr Campanaro also agreed that Messrs Bragdon and Kong had been asked by Mr Tozer to go to a meeting.
26 Given the importance sought to be attached by Messrs Bragdon and Kong to their being on site pursuant to an “invitation”, it is perhaps curious that neither gave their own account of what was said upon their arrival. Perhaps they were content to rely upon the account given by Mr Campanaro. The most detailed reference given by either of these union representatives, being that of Mr Bragdon, was as follows in his re-examination:
Finally, you said in your evidence a number of times that you were invited on site. Who invited you onto the site? –– My memory serves me correct, it would have been the PM or – or the leading foreman on the site. I don’t recall his name.
“PM” is a reference to the Abigroup Project Manager, Mr Tozer. It is also perhaps curious that it was put to neither Mr Campanaro nor Mr Tozer that either had “invited” Messrs Bragdon and Kong onto the site.
27 But such was the evidence of the “invitation” relied upon.
28 It is difficult to characterise this conversation as an “invitation” for Messrs Bragdon and Kong to enter the site. But Mr Campanaro unquestionably gave them permission to do so – provided they complied with the Abigroup policy of wearing personal protective equipment. It is also the case that they should also have waited for somebody from Abigroup to escort them onto the site. Although Mr Vicente was probably seeking to distance himself from the decision made by Messrs Bragdon and Kong to enter the site, it is reasonably apparent from the following exchange with his cross-examiner that Mr Vicente thought Messrs Bragdon and Kong should have waited for Mr Campanaro to return:
They should have waited, shouldn’t they? –– As I said, their decision. I was with them and I wait in there as I walk into the first ––
But they went straight into the site without the protective equipment, correct? –– That’s correct.
They went straight into the site without any accompaniment from a management person from Abigroup, correct? –– Went upstairs, yes, correct.
Now, that was incorrect, I think you said, of them to do – to go unaccompanied, correct? ––No, I’m not saying that. Just we wait on the gate and they went upstairs.
They should have waited for Mr Campanaro to return with the safety gear, correct? –– As I said, their decision. He should and he went upstairs with .....
And they should have waited for Mr Campanaro so he could take them upstairs, correct? –– Or somebody else.
Or somebody else. It’s a building site they’ve never been to, correct? –– That’s correct.
They’ve got no idea of the risks on the site, do they? –– Well ..... organisers and went upstairs and I was downstairs near the gate. As I’m walking near the first aid shed, I do recall on that.
And it was certainly not the intention of Mr Campanaro that Messrs Bragdon and Kong were to enter the site without more – but their entry whilst Mr Campanaro was securing some personal protective equipment precluded more being said. In his cross-examination, it was Counsel for Messrs Bragdon and Kong who elicited the following responses from Mr Campanaro:
We’re talking about when you were in the car park you’ve been introduced to Bragdon and the other gentleman, whose name you can’t recall catching, and you said to them, or you said in answer to some questions I asked you, were you quite content for them to go on site, and I think you said yes or words to that effect. Do you recall that? –– Yes, I did.
You did not say to the three gentlemen or to Mr Vicente that you were only content for them to go on site if Mr Vicente was with them, did you? –– No, what I wanted to actually say was that if they were to stay there and waited for me to get the PPE with them, I would have been with them.
29 It is concluded that there was no “invitation” or “permission” extended to either Mr Bragdon or Mr Kong to enter the site without wearing such equipment and to enter except accompanied by an Abigroup employee.
30 But that, perhaps, matters not.
31 What remains important to the case being advanced on behalf of the Respondents is the fact that Mr Campanaro did not require either Mr Bragdon or Mr Kong to produce an entry permit at the outset and did not require them to exercise any statutory right of entry.
32 Even if it were concluded that Mr Campanaro extended an unconditional “invitation” to enter the site at the outset, the facts quickly changed.
A tempestuous entry on to the site
33 Although Mr Campanaro expected Messrs Bragdon and Kong not to enter the site until he had returned with the personal protective equipment, that did not happen.
34 Within two or three minutes, Messrs Bragdon and Kong had entered the site and proceeded to a decking adjacent to where concrete was being poured. They entered without personal protective equipment.
35 There were differing accounts of what subsequently happened and what Messrs Bragdon and Kong said to the workers.
36 That uncertainty focussed upon:
whether Messrs Bragdon and Kong proceeded alone from the entry point to the deck where they observed the concrete pour or proceeded in the company of an Abigroup officer;
what they said to workers upon their arrival or shortly thereafter; and
the purpose of their entry.
37 On the account given by Messrs Bragdon and Kong, they proceeded from the entry point to a deck observing the concrete pour, in the company of an Abigroup employee.
38 Contrary to the account given by Messrs Bragdon and Kong, it is concluded that they proceeded to the deck alone. Notwithstanding some uncertainty, Mr Vicente most probably did not go onto the deck. A short time later, however, Messrs Wagstaff, Campanaro and Tozer joined Messrs Bragdon and Kong on the deck.
39 Whoever joined them on the deck perhaps matters not. What is of importance is the fact that shortly thereafter, Messrs Bragdon and Kong said to the workers engaged in the concrete pour:
Get off the deck, we’re stopping the pour, this is unsafe. This site is shut.
A number of foremen and supervisors asked Messrs Bragdon and Kong why they should stop the concrete pour and Mr Kong replied:
They’re a pack of murderers (Abigroup), get off the deck, it’s not safe.
Such was the account of what was said given by Mr Campanaro. Some workers left and others remained. Mr Daher, who was not cross-examined, also gave an account of Messrs Bragdon and Kong “barg[ing] onto the site” and “screaming at us that the site was unsafe and we had to stop pouring concrete”.
40 The evidence of Messrs Bragdon and Kong was relevantly within a narrow compass. When cross-examined in respect to the above instructions given to the workers, Mr Bragdon simply stated “No, I never used those words”. Mr Kong denied directing “the work area be evacuated and the site be closed”.
41 The account given by Messrs Campanaro and Daher is accepted and the denials of Messrs Bragdon and Kong rejected. Although Mr Campanaro was cross-examined, it was not put to him that the account of what he attributed to Messrs Bragdon and Kong had not been said. The accounts of Messrs Campanaro and Tozer were also consistent with the fact that some workers left the site of the concrete pour.
42 In addition to these purported instructions by Messrs Bragdon and Kong to the workers, there were also discussions on the deck focussed upon alleged safety concerns. Messrs Bragdon and Kong were asserting that there was a safety concern due (inter alia) to the evacuation stairs not being wide enough. Mr Tozer was asserting the contrary. Mr Gregoriou, who was also present, said:
We are satisfied with the access to the stretcher stairs.
43 Whatever may have been the basis upon which Messrs Bragdon and Kong were initially allowed to enter the site, it is concluded that as from these events occurring on the decking adjacent to the concrete pour that their continued presence thereafter was not upon the basis of “invitees”. Their evidence that they believed they were on site as “invitees”, at least from that point of time when these events unfolded, is rejected. It would be behaviour curious in the extreme for an “invitee” to enter a site and issue instructions that the site be shut down. As from at least this point of time, the conduct of Messrs Bragdon and Kong was such that their presence thereafter was simply tolerated with a view not to make the bad situation – that they had created – a worse one. Mr Tozer, for example, also agreed that he did not ask Messrs Bragdon or Kong to “get off this site” but also maintained he “wasn’t going to antagonise the situation any further”.
44 Justice Mansfield reached a similar conclusion in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199. Obviously with reference to the facts there before the Court, his Honour observed:
[52] When M Milatos arrived, each of the CFMEU officials introduced themselves. That included Pearson, who introduced himself as Kane. On the evidence, Pearson largely led the discussions. M Milatos complained that the entry notices were insufficient, that the Site was busy, and that they should have given a specific time to exercise the right of entry. Pearson replied that “you are lucky to have got a notice, we can come onto the Site whenever we like”. There is some dispute as to whether M Milatos agreed to the CFMEU officials present coming onto the Site. I find that M Milatos did not invite them onto the Site, but acquiesced as they walked onto the Site and started to comment, and take photographs (none of them were produced) of features which they raised as breaches of health and safety requirements.
A little later his Honour expressed his conclusion as follows:
[58] The CFMEU says that the entry was with the consent of Reday through M Milatos.
[59] I find that M Milatos did not in fact invite or permit the CFMEU officials to enter the premises, other than on the basis of an understanding as to his obligations as asserted by Pearson … I find M Milatos acquiesced to the CFMEU officials entering the Site because he thought he had no other practical option. That does not amount to him consenting to the CFMEU officials entering the Site …
The meeting of the safety committee
45 According to Mr Campanaro, there “was a great deal of confusion at that time…”.
46 Given the concerns being expressed, Mr Tozer spoke to Mr Gregoriou to organise a meeting of the safety committee.
47 The purpose of the meeting was to discuss the concerns raised by Messrs Bragdon and Kong. Whilst the meeting was in progress, Mr Bragdon approached and the following conversation took place between him and Mr Tozer:
Tozer : “We’re having a safety committee meeting here, could you please leave us?”
Bragdon : “I’m a member of the safety committee. I can be here.”
Tozer : “No, the safety committee was elected on Tuesday and you weren’t part of it.”
Mr Bragdon refused to leave. The meeting was moved to the first aid shed. But Messrs Bragdon and Kong followed. Mr Bragdon, according to Mr Tozer, interrupted the meeting and said words to the following effect:
You Abigroup blokes are just as bad as you are in Queensland.
The safety committee nevertheless reached a consensus that the procedures and access provided by Abigroup in relation to access on and off the deck were to their satisfaction. Mr Tozer decided that there should be a meeting of all the workers to convey this assessment. Before leaving the first aid shed, Mr Tozer asked Messrs Bragdon and Kong for their entry permits. That request and its response were as follows:
Tozer : “Do you have your entry permits handy; I need to get your details.”
Bragdon : “Yeah mate, we’ll give them to you later.”
The conversation continued:
Tozer: Can I at least get your names?
Bragdon: Chad Bragdon and my number is zero four two zero, nine four eight, four two zero.
Kong: Steve Irwin.
Tozer: What as in the crocodile hunter?
Kong: Yeah, that’s it. My number is oh four three five, eight three two, nine seven one.
It was not until they left the deck adjacent to the concrete pour that Mr Tozer maintained “we started going through those formalities…”. He said that it was not “until we got down there that things calmed down slightly that I asked for the permits…”. Mr Tozer maintained that Messrs Bragdon and Kong had “obviously already come on to the site without our approval…”.
48 When questioned about the “imposition” that a right of entry imposes upon an occupier, the following exchange occurred between Mr Kong and his cross-examiner in respect to this response that he was “Steve Irwin”:
... We should be greeted with open arms or they can invite me on.
But that’s one of the reasons. One of the reasons is because there is an imposition on the occupier, correct? –– No, it’s never an imposition.
Okay. Let’s get to the second reason, it’s so they know who you are? –– Yes.
Okay. Now, had you produced your permits to those of the occupier who were requesting it on the day, permit or permits, they would have worked out that you weren’t Steve Irwin? –– More than likely.
Okay. Because the second reason, I would ask you to agree, is that people ask for permits so they know who they’re dealing with, correct? –– Yes.
And they had asked you who they were dealing with, in the absence of permit, hadn’t they? –– Can you repeat the question please?
Okay. Sorry, I’m probably being vague. When you were asked your identity, you said “Steve Irwin”? –– I did.
So when somebody is trying to understand who it is that is seeking to enter their site and conduct safety issues, you misidentified yourself? –– I did say “Steve Irwin”.
You misidentified yourself? –– I said “Steve Irwin”.
Yes. And you’ve chuckled a little bit there, but do you think it’s funny? –– I did. It was an off the cuff, smart arse response and hindsight is a wonderful thing and it shouldn’t been said, but yes, as I said, it was an off the cuff, smart arse response.
And the result of your off the cuff response, for the period that you were on site of approximately three hours, I suggest, the occupiers of the site had no idea who they were dealing with? –– Well, they might have thought it was Steve Irwin.
He was dead. They had no idea who they were dealing with, correct? –– Mostly, at that time.
It was not until 18 June 2013 when the CFMEU Qld/NT website was accessed that Mr Tozer identified from a photograph of Mr Kong that he and Mr Irwin were one and the same person.
49 The account given of these exchanges by Messrs Campanaro and Tozer is accepted. Again, it was not put to either of these witnesses that these exchanges did not occur.
The meeting of all the workers
50 By now the time was around 8.45 am.
51 That meeting was held outside the first aid shed. Most of the workers on site were present. This meeting, according to Mr Campanaro, lasted “between 10 to 15 minutes”.
52 Mr Tozer addressed the workers and told them of the concerns raised by Messrs Bragdon and Kong. Mr Bragdon told the workers that Abigroup was in breach of Work Health and Safety legislation.
53 At about 9.00 am Mr Bragdon told Mr Tozer that he wanted to speak to the workers and that he did not want “any management or foremen present”. Mr Tozer walked away and left Mr Bragdon to address the workers.
54 Mr Wagstaff gave a brief account of what Mr Bragdon said to the workers. On his account, Mr Bragdon told the workers that the site should be shut and that it was unsafe. Mr Vicente was not involved in any of the exchanges. Mr Wagstaff turned to Mr Vicente and said:
What’s going on, what’s the story? This is a stitch up.
Mr Vicente did not respond and simply “shrugged his shoulders”. Mr Wagstaff formed the impression that Mr Vicente did so “in resignation”.
55 There was then the following conversation between Messrs Tozer, Bragdon and Kong:
Bragdon: “We should meet in the site office with the safety committee.”
Tozer: “Can I see your right of entry permit?”
Bragdon: “I’ll email it to you.”
Mr Tozer then saw Mr Bragdon enter his e-mail address onto a “hand held device”. Mr Campanaro gives a similar account of the request made for the production of the entry permit. Mr Campanaro also maintains that Messrs Bragdon and Kong “became abusive and started to use foul language”. Mr Wagstaff in his cross-examination also maintained that “the general level of aggression” was “uncalled for”. His “belief” was that Messrs Bragdon and Kong were “trying to interrupt what we were … trying to do on that day…”. Mr Campanaro attributes to Mr Bragdon the following comment:
No we’re not fucking leaving. You’re (Abigroup) a pack of murderers, we’re gonna get you.
Mr Tozer then turned to Mr Kong and the following conversation occurred:
Tozer: “I need to get your right of entry details as well.”
Kong/“Irwin”: “I’ll give it to you after the safety committee meeting.”
About half-an-hour later Mr Tozer checked his e-mails and noticed that he had not received any entry permits. He then had the following conversation with Messrs Bragdon and Kong:
Tozer: “I have checked my email. Did you send me your right of entry details?”
Bragdon: “No. I’ll send them this afternoon.”
Tozer: “And what about yours?”
Kong/“Irwin”: “You’ll get mine when you get his.”
Mr Bragdon accepts in his affidavit that towards the end of his visit, an Abigroup representative whose name he did not know said to him (without alteration):
You can’t be here. You need your permits. Where are your permit.
Mr Bragdon states his response as being:
I will show you later.
Mr Kong in his own affidavit gives a like account of the request made.
THE CONTRAVENTIONS ALLEGED – SECTIONS 497, 500 & 503
56 Contraventions are alleged of ss 497, 500 and 503 of the Fair Work Act. Each of these provisions is found within Part 3-4 of the Fair Work Act.
57 Part 3-4 of the Act deals with “Right of Entry”. Within that Part, Division 1 is an “Introduction”. Thereafter:
Division 2 deals with “Entry rights under this Act” (including s 481 which confers a right upon permit holders to enter premises and s 482 which specifies rights that may be exercised whilst on premises).
Division 3 deals with “State or Territory OHS rights”.
Division 4 deals with “Prohibitions” (comprising ss 500, 501, 502, 503 and 504).
Division 5 deals with “Powers of the FWC”.
Division 6 deals with “Entry permits, entry notices and certificates” (including the power conferred by s 512 on the Fair Work Commission to issue an entry permit).
These provisions set forth the means whereby permit holders are conferred rights and the manner in which those rights may be exercised.
58 The “Object” sought to be achieved by Part 3-4, it should be noted at the outset, is set forth as follows in s 480:
Object of this Part
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.
59 Within Division 3 of Part 3-4, s 497 of the Fair Work Act provide as follows:
Producing entry permit
A permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer.
Section 497, it may be noted, confers no right of entry – it contains a prohibition upon a permit holder exercising a right unless the permit holder produces his entry permit upon a request being made.
60 Section 500 of the Fair Work Act provides as follows:
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).
61 Section 503 of the Fair Work Act provides as follows:
Misrepresentations about things authorised by this Part
(1) A person must not take action:
(a) with the intention of giving the impression; or
(b) reckless as to whether the impression is given;
that the doing of a thing is authorised by this Part if it is not so authorised.
(2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.
62 Division 3 within Part 3-4 deals with “State or Territory OHS rights”. Within Division 3, s 494(1) provides as follows:
An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.
Sub-section (2) to s 494 provides in part as follows:
A right to enter premises, or to inspect or otherwise access an employee record of an employee that is on premises, is a State or Territory OHS right if the right is conferred by a State or Territory OHS law, and:
(a) the premises are occupied or otherwise controlled by any of the following:
(i) a constitutional corporation;
(ii) a body corporate incorporated in a Territory;
(iii) the Commonwealth;
(iv) a Commonwealth authority; or
…
The Work Health and Safety Act 2011 (NSW) (the “Work Health and Safety Act”) is a “State … OHS law…” for the purposes of s 494(2) of the Fair Work Act.
63 Part 7 of the New South Wales Work Health and Safety Act deals with “Workplace Entry by WHS entry permit holders”. Within that Part, s 117 provides as follows:
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.
Section 118 thereafter deals with the “rights that may be exercised” by a permit holder and provides in s 118(1) as follows:
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.
Relevantly for present purposes it may be noted that s 118 does not confer upon a person who holds an entry permit any right to order the cessation of work or to shut down a site for actual or suspected safety concerns. Sections 131 and 134 of the NSW Act provide for the making of an application for “a WHS entry permit” and for the issue of such a permit.
A contravention of s 497
64 Section 497 of the Fair Work Act is a provision of deceptive simplicity.
65 There is, with respect, considerable uncertainty surrounding the introductory phrase: “A permit holder must not exercise a State or Territory OHS right…”.
66 That uncertainty is highlighted in the present proceeding by reason of the fact that as at 6 June 2013 neither Mr Bragdon nor Mr Kong held any entry permit issued under the New South Wales Work Health and Safety Act. Although Mr Bragdon maintains that he thought he had such an entry permit, his evidence to that effect is rejected; Mr Kong frankly accepts that he knew he had no such State entry permit as at 6 June 2013. Mr Bragdon did not apply for a State entry permit until the following day, 7 June 2013; Mr Kong did not apply for a State entry permit until 26 June 2013.
67 On their behalf it is submitted that:
section 497 has no application because neither were present on site seeking to exercise any statutory right – be it sourced in either Commonwealth or State legislation. They were both on site as “invitees” of Abigroup and engaged in such conduct as they did purely as “invitees”.
If s 497 is engaged, it is thereafter submitted on their behalf that:
the absence of any New South Wales entry permit necessarily had the consequence that neither could be found to have been “exercise[ing] a State or Territory OHS right”.
On the construction of s 497 advanced on behalf of Messrs Bragdon and Kong, it was further submitted that:
section 497 had such a confined area of operation that it had no application if a “permit holder” entered a site by reasons of a concern for health and safety but purported to exercise a “right” other than one of the “rights” set forth in s 118 of the New South Wales Work Health and Safety Act. A right to order the cessation of unsafe work is relevantly addressed in Division 6 of Part 5 of the NSW Act and vested (for example) in a health and safety representative by s 85; that Act does not vest any such right in a person who merely holds an entry permit.
On this approach to s 497, it was submitted on behalf of Messrs Bragdon and Kong that if it were to be found that whilst on site they attempted to cause the concrete pour to cease and to shut down the site, s 497 would not be engaged because:
even if they possessed a State entry permit, such a permit conferred no such rights.
68 The argument that Messrs Bragdon and Kong were on site as “invitees” – at least at that point of time when they proceeded to the decking adjacent to the concrete pour and from when they started issuing instructions to the workers – has been rejected. Neither was on site as an “invitee” of Abigroup.
69 Separate from that factual conclusion are the further conclusions that:
whatever may have been the initial purpose of their entry on site, and even if it were to be accepted that they initially entered the site for “training purposes”, their concern quickly changed and became focussed upon matters of safety; and
the fact that neither Mr Bragdon nor Mr Kong possessed a State entry permit does not preclude a conclusion that each was nevertheless “exercise[ing] a State or Territory OHS right…”.
The purpose being pursued whilst on site – training?
70 Notwithstanding the assertion made by both Messrs Bragdon and Kong that they visited the site for the purpose of “training”, it is concluded that the “purpose” they jointly pursued – at least very shortly after their entry onto the site – was manifestly to address what they asserted were safety concerns. Any suggestion that either were there for training purposes is rejected.
71 So much follows from:
their conduct immediately upon entering the site, including their statements that work was to cease as “the pour is unsafe” and that the deck was “not safe”;
the fact that the only person who accompanied Messrs Bragdon and Kong who could possibly have given them any training, Mr Vicente, remained adjacent to his original point of entry and did not accompany them further onto the site;
their evidence given during cross-examination;
the agreement in the Statement of Agreed Facts that “[w]hilst on site, [Mr Bragdon] identified and referred to alleged safety concerns and breaches of safety legislation”; and
the preparation by Mr Bragdon on 7 June 2013 of a “BLF Hazard Report” noting “a suspected contravention under section 117 Work Health and Safety Act 2011”. The reference to s 117 is perhaps ambiguous – s 117 being in like terms in both the New South Wales and Queensland legislation. Mr Bragdon maintains that the report refers to the Queensland legislation. But nothing turns on this.
It is unnecessary to express any concluded view as to whether the safety concerns Messrs Bragdon and Kong expressed were concerns genuinely held. Their professed concerns, it may nevertheless be noted, do not sit comfortably with the inspections carried out on site prior to 6 June 2013 and to the comments made by Mr Gregoriou.
72 With reference to the evidence given during cross-examination, there was the following exchange with Mr Bragdon:
Every action of yours on that day – from the time you entered the site until the time you left – revolved around you addressing allegations of safety concerns; correct? –– That’s correct.
You raised no other matters on the day other than safety? –– As far as I know.
Okay. Subsequent to that, the following day you provided a safety report to Abigroup? –– That’s correct.
There was a similar exchange with Mr Kong during his cross-examination:
Everything you did on the day on that site at Mascot revolved around safety, correct? –– Yes.
From the minute you entered the site until you left, you were dealing with what you said were safety concerns? –– I wouldn’t say from the minute we entered the site.
Within five minutes? –– No, no.
Within the time you reached the concrete slab? –– Yes. Yes.
You didn’t raise any other matters on the day other than safety? –– No.
Arising from your visit, Mr Bragdon issued a safety report? –– Yes, I believe so.
73 The explanation provided by Mr Bragdon as to his entitlement to raise questions of safety whilst on site, and short of exercising any statutory right of entry, was as follows in his re-examination:
What permits did you understand you were being told you needed and asked where they were? –– The safety right of entry.
And could I ask you, you said in the course of your evidence you were there to address safety concerns and that you – I think you said that you had the right to address those concerns. Why did you think you had the right to address those concerns? –– Whenever – whenever I’m invited on site and I – and I see safety concerns or issues or whatever it may be, I have an obligation under the duty of care of holding a permit that I cannot turn a blind eye. I have to – I have to [write] something down. I have to provide that builder with it. Therefore, that’s why I did a safety hazard, not a right of entry, that day. Safety hazard is merely an obligation for a builder to take it on board and fix it. So, therefore, I – I give them the hazard report; not a right of entry. A right of entry has a different weight to it.
74 Although it may matter little to the alleged contravention of s 497 of the Fair Work Act whether either Mr Bragdon or Mr Kong knew they had no power to stop the concrete pour that was taking place on 6 June 2013, their knowledge of an absence of power was pursued in cross-examination. One such exchange with Mr Bragdon was as follows:
But you have admitted that as of 6 June, you were not authorised under the Fair Work [Act] to direct the cessation of work? –– I didn’t admit that.
You knew on that date that you weren’t authorised to direct the cessation of work, didn’t you? –– No. I don’t understand the question, sorry.
Okay. I will try and re-phrase it. As at on 6 June 2013, you were not authorised under the New South Wales Work Health and Safety Act to direct the cessation of work, were you? –– We were invited on site that day.
You had no powers whatsoever to direct the cessation of work pursuant to Work Health and Safety legislation on 6 June, did you? –– I’m not too sure where you’re leading with this question. If you’re asking
HIS HONOUR: Can you just answer the question? –– I don’t understand the question.
MR CROSS: Okay. I will try and re-phrase it.
HIS HONOUR: Can you put it again please.
MR CROSS …. On 6 June 2013, you knew that you were not authorised to direct the cessation of work pursuant to Work Health and Safety legislation, didn’t you? –– No.
Well, that’s exactly what you did, wasn’t it? –– I have rights to do that, yes.
And you know I put it to you quite squarely that you had no rights pursuant to the Work Health and Safety legislation to direct the cessation of work? –– Under what legislation don’t I have the right?
Work Health and Safety? –– I have the right to do that.
You have no ability or power under the Fair Work Act to direct the cessation of work, do you? –– Under safety legislation I do, through consultation.
This exchange is, with respect, but a further reason to question the evidence given by Mr Bragdon. Mr Bragdon did not present as a witness whose primary focus was simply on answering the questions put to him as fully and frankly as possible. The present exchange, by way of example, exposes a witness more committed to either avoiding answering a question or a witness committed to advancing his own account.
75 The knowledge of Messrs Bragdon and Kong as to their absence of power to order the cessation of work, it may be assumed, was being pursued in cross-examination because of its potential relevance to both the requirement of s 494(2) of the Fair Work Act as to a person exercising “a right conferred by a State … OHS law” and to the requirement imposed by s 500 of the Fair Work Act that any hindering or obstructing of work be intentional or that action be pursued “in an improper manner.”. An attempt to order a concrete pour to cease only assumed added significance – on the case advanced by the Director – by reason of the references in Mr Vicente’s “bible” to a concrete pour as “time critical work”.
76 It is concluded that both Mr Bragdon and Mr Kong knew they did not have power to either stop the concrete pour or purport to shut down the site.
77 It is further concluded that even if Messrs Bragdon and Kong genuinely believed that they had been initially “invited” on to the site by Mr Campanaro, they either knew or must have known that their presence on site as “invitees” ceased at that very moment when they were requested to produce their entry permits. The explanation provided by Mr Bragdon as to his having a “duty of care” such that he could not “turn a blind eye” to what was happening on site during the concrete pour is rejected. That explanation, it is concluded, is more a justification constructed after the event in order to justify or support his conduct whilst on site rather than a belief he held at the time.
A permit holder –v– a person who may lawfully exercise a State OHS right
78 It is further concluded that s 497 applies to Messrs Bragdon and Kong either because:
section 497 is to be construed such that the section imposes a constraint upon a “permit holder”, namely a person who has been issued with a permit pursuant to s 512 of the Fair Work Act. Messrs Bragdon and Kong were such persons. The constraint is that such persons cannot exercise a State OHS right unless they produce that entry permit “when requested to do so…”. There is, upon such a construction of s 497, no further constraint that the “permit holder” be a person actually entitled or authorised to exercise that State right. Section 497, upon such a construction, fastens upon persons who have a particular identity – namely persons who have an “entry permit” – and requires such persons to produce their entry permit when they seek to exercise a “State … OHS right …”. On this construction of s 497, it is the fact of the purported exercise of the right by a “permit holder” that matters rather than the lawful authority to exercise that State right; or
if s 497 is to be construed such that it identifies the persons to whom it applies as being persons who have both an “entry permit” issued under s 512 and to a person who is “[exercising] a State … OHS right”, that requirement is satisfied in circumstances where the person purports to exercise that State right albeit with no legal authority to do so.
The “State right” on either approach is the right conferred by s 118 of the New South Wales Work Health and Safety Act to “inspect any work system” in respect to a “suspected contravention” of that Act. Such was the “purpose” – or at least a substantial “purpose” – being pursued by Messrs Bragdon and Kong.
79 Either construction, it is considered, gives effect to the objects and purposes of Divisions 3 and 4 within Part 3-4 of the Fair Work Act and the object of that Part as set forth in s 480.
80 It would frustrate the object and purpose of s 497 if the occupier of a site had to go beyond the simple requirement to request that an “entry permit” be produced for inspection. The alternative approach to the construction of s 497 advanced on behalf of Messrs Bragdon and Kong could also work to the potential prejudice of permit holders. An occupier determined to preclude entry could, on the approach advocated on behalf of Messrs Bragdon and Kong, question the State right sought to be exercised. Placed in jeopardy upon their approach would be the “balance” sought to be achieved by s 480 between “the right of organisations to … investigate suspected contraventions of … State … laws” (s 480(a)(ii)) and “the right of occupiers of premises … to go about their business without undue inconvenience…” (s 480(c)). Upon a perhaps extreme example of the application of s 497 – if the approach of Messrs Bragdon and Kong were accepted – would be the conclusion that an occupier would have no right to request the production of an “entry permit” if the permit holder were candidly to assert that his purpose on site was to create mayhem. Nor could an occupier request the production of an “entry permit” issued pursuant to s 512 of the Fair Work Act from a person who held a State entry permit and who asserted a purpose of ordering the cessation of work, a State permit holder having no authority to do so. If no prior request for the production of an entry permit had been made, and if the purpose sought to be pursued by a permit holder only emerged subsequent to entry, the production of the entry permit could not be requested. The means of identifying persons who had entered a site and who sought to achieve such purposes would be denied.
81 The construction of s 497 which is preferred, it is concluded, properly gives effect to the “balance” sought to be achieved by the Legislature. Shunned is an approach focussed upon any detailed analysis of the right or authority of persons; embraced is an approach which works sensibly on site. If a person who holds an entry permit is on site and is (for example) investigating suspected contraventions going to safety or is purporting to investigate suspected contraventions, he is required to produce his entry permit for inspection if requested to do so.
82 This construction of s 497 gains some support from the decision of Merkel J in Pine v Doyle [2005] FCA 977, (2005) 222 FCR 291. His Honour was there dealing with a different statutory provision expressed in different terms. That provision, s 285E of the Workplace Relations Act 1996 (Cth) (the “Workplace Relations Act”), relevantly provided as follows:
(1) A person exercising powers under section 285B or 285C must not intentionally hinder or obstruct any employer or employee.
(2) The occupier of premises must not refuse or unduly delay entry to the premises by a person entitled to enter the premises under section 285B or 285C.
(3) …
(4) A person must not otherwise intentionally hinder or obstruct a person exercising powers under section 285B or 285C. To avoid doubt, a failure to agree on a place or a time as mentioned in paragraph 285B(4)(a) or (c) does not constitute hindering or obstructing a person exercising such powers.
The Respondent to that proceeding, an organiser for the CFMEU, was not entitled to exercise his power of entry under s 285C of the Workplace Relations Act. It was concluded that his sole or dominant purpose for which he purported to exercise his right of entry was not a purpose authorised by s 285C. In that context and with reference to s 285E, Merkel J further concluded:
[15] However, it does not follow that, for the purposes of s 285E(1), the power was not exercised at all. In my view, s 285E(1) requires that the power of entry be exercised as a matter of fact, rather than as a matter of law. That construction of the subsection accords with the plain and ordinary meaning of the words. Also, the words used in s 285E(1) (“person exercising powers under s 285B or 285C”) may be contrasted with the words used in s 285E(2) (“a person entitled to enter premises under s 285B or 285C”). Thus, when the legislature intended to refer to the exercise of the statutory power as a matter of law, it did so in s 285E(2) in terms of “entitlement” to exercise the relevant power, rather than in terms of “exercising” that power as is set out in s 285E(1).
In the present proceeding, Counsel for the Applicant similarly maintained that “a purported exercise of such rights can amount to a contravention …” of s 497 of the Fair Work Act.
83 In potential contrast to the statutory provisions under consideration in Pine v Doyle stands the decision of Moore J in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2009] FCA 645, (2009) 178 FCR 461. In contrast to the statutory language of s 285E in Pine v Doyle, Moore J in the John Holland decision was concerned with ss 756, 758 and 767 of the Workplace Relations Act. Section 756(1) relevantly provided as follows:
An official of an organisation who has a right under an OHS law to enter premises must not exercise that right unless the official:
(a) holds a permit under this Part; and
(b) exercises the right during working hours.
Section 758(1) provided that a “permit holder must not enter, or remain on, premises under an OHS law unless the permit holder produces his or her permit for inspection when requested to do so…”. Section 767 relevantly provided as follows:
(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.
(3) …
The union officers there involved had no right under the Occupational Health and Safety Act 2000 (NSW). It was concluded that they had not contravened s 758 of the Workplace Relations Act. In so concluding, Moore J referred to the decision of Merkel J and concluded that the different statutory provisions led to a different conclusion. His Honour expressed his conclusion as follows:
[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.
This decision of Moore J, it may be noted, was also distinguished in Darlaston v Parker [2010] FCA 771 at [70] to [80], (2010) 189 FCR 1 at 20 to 22 such that it was there concluded that the union officials involved also had a right of entry in accordance with Work Health and Safety legislation.
84 Notwithstanding an accepted tension between the decisions of Merkel J in Pine v Doyle and that of Moore J in John Holland, it is concluded that s 497 of the Fair Work Act has more in common with the statutory provisions under consideration before Merkel J than those under consideration by Moore J. The terms of s 497 must obviously be construed by reference to the terms in which it is expressed and its context within Part 3-4 of the Fair Work Act. Different statutory provisions expressed in different terms can only, at best, provide some assistance as to the reasoning process employed when those different provisions were under consideration. Notwithstanding that accepted qualification, s 497 is more akin to s 285E of the Workplace Relations Act. Unlike the terms in which s 756(1) was expressed, namely in terms of an official “who has a right under an OHS law”, the current s 497 does not – to employ the language of Moore J in John Holland – identify a “class of union official … constituted by those who … have a right to enter under an OHS law…”: [2009] FCA 645 at [50], (2009) 178 FCR 461 at 478. Unlike the terms of s 756(1), the “class of union official” identified by the terms of s 497 is a person who is simply a “permit holder…”.
The refusals to produce
85 Given the rejection of both:
the submission that Messrs Bragdon and Kong were present on site as “invitees” when requests were made for the production of their entry permits; and
the submission that s 497, as a matter of statutory construction, had no application to Messrs Bragdon and Kong
it necessarily follows that there have been contraventions of s 497.
86 There were repeated requests made for Messrs Bragdon and Kong to produce their entry permits and they repeatedly failed to do so. Their failure to produce their entry permits issued pursuant to s 512 of the Fair Work Act is, with respect, inexplicable. Even if they were “invitees” on the site, these entry permits readily could have been produced. To the limited extent that the requests may have extended to producing any entry permit issued pursuant to State legislation, their failure to produce such permits was eminently understandable – they had no such entry permits and, on the facts as found, knew they had no such permits.
Contraventions of s 500
87 The Director submits that the direction by Messrs Bragdon and Kong to the workers to stop work amounted to a contravention of s 500 of the Fair Work Act, by reason of being either:
an intentional hindrance or obstruction; or
action that was otherwise “improper.”
It is further submitted on behalf of the Director that Mr Kong’s identification of himself as “Steve Irwin” was:
action that was “improper”.
88 On behalf of the Respondents it was again urged that s 500 did not apply to the circumstances of the present case – the same approach to the construction of s 497 was again repeated in respect to s 500. It was submitted that the phrase in s 497, “[a] permit holder must not exercise a State or Territory OHS right …”, was comparable to that employed in s 500, namely that “[a] permit holder exercising, or seeking to exercise, rights in accordance with this Part …”.
89 The submissions advanced on behalf of the Director are accepted.
90 Just as that part of the Respondents’ argument as to the significance to be placed upon Messrs Bragdon and Kong not having any right under the New South Wales Work Health and Safety Act has been rejected in respect to s 497, the same argument advanced in support of the Respondents’ construction of s 500 is likewise rejected.
91 But that leaves for consideration whether the conduct found to have been engaged in otherwise falls within the terms of s 500.
“Intentionally hinder or obstruct”
92 When considering the terms of s 767 of the Workplace Relations Act and a like requirement there imposed that a permit holder must not “intentionally hinder or obstruct any person”, in Darlaston v Parker [2010] FCA 771, (2010) 189 FCR 1 at 17 it was concluded:
[52] For the purposes of s 767(1) it is considered that the reference to “intentionally hinder or obstruct” is a reference to any act or conduct that actually makes it more difficult for the person who is “hindered or obstructed” to discharge his functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an “appreciable” obstruction or interference. A trivial act, or even an act which could not reasonably be regarded as an obstruction or interference, would not fall within s 767(1).
The conclusions there expressed are adhered to. They have equal application to the manner in which the same phrase now employed in s 500 of the Fair Work Act should be construed.
93 It has been concluded that Messrs Bragdon and Kong entered the site, went up on the deck adjacent to where concrete was being poured and said to the workers involved in pouring the concrete (inter alia):
Get off the deck, we’re stopping the pour, this is unsafe. This site is shut.
The objective which Messrs Bragdon and Kong sought to achieve could have been nothing other than stopping the concrete pour.
94 That conduct of Messrs Bragdon and Kong unquestionably “hindered” the concrete pour. The pouring of concrete was a “time critical” task. And that fact, it is concluded, was known to both Mr Bragdon and Mr Kong. Although the pour did continue, some workers did leave. Messrs Bragdon and Kong intended that to be the consequence of their conduct. A reduced number of workers remained. But it cannot be concluded that the concrete pour was “obstructed”. Although some workers left the site, how many did so is not known. How much longer the concrete pour took to complete with a reduced work forces is equally unknown. In such circumstances, it cannot be concluded that the pouring of the concrete was “obstructed” to any “appreciable” extent. All that is known is that “some” workers left the site and, and as Mr Kong accepted, “work was slowed down…”. The concrete pour was certainly hindered, but there was nevertheless no “appreciable” obstruction to that activity being completed.
95 The contraventions as alleged by the Director, to the extent that it is alleged that there was a “hindering” of the activities being undertaken, are thus made out.
Acting in an improper manner
96 An alternative characterisation of this conduct of Messrs Bragdon and Kong is that their conduct amounted to “act[ing] in an improper manner”. So characterised, there is no requirement imposed by s 500 that their acts be intentional: cf. Darlaston v Parker [2010] FCA 771 at [54], (2010) 189 FCR 1 at 17.
97 “Improper conduct” is conduct which falls below that standard which can reasonably be expected of those who occupy positions of responsibility: cf. Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199. Mansfield J there observed in respect to s 500:
[106] Consequently, as they were seeking to exercise powers under Pt 3-4 of the FW Act, s 500 may be contravened when their conduct exceeds that authorised by the exercise of those rights. Section 500 requires an objective assessment or determination whether there was conduct or action of an improper manner. It does not depend upon intention.
[107] In R v Burns and Hopgood [1995] HCA 1; (1995) 183 CLR 501, the High Court said in the majority judgment at 514–515:
Impropriety does not depend on an alleged offender’s consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged defendant by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case. When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important: the alleged offender’s knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused. But impropriety is not restricted to an abuse of power. It may consist in the doing of an act which a director or officer knows or ought to know that he has no authority to do.
See also: Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 at [171] per Mansfield J.
98 The conduct of Messrs Bragdon and Kong whilst on the decking adjacent to the concrete pour, it is concluded, also constitutes a contravention of s 500 in that such conduct was “improper”. The “impropriety” of the conduct pursued by both Mr Bragdon and Mr Kong assumes only greater relevance given the conclusion that both knew that they did not have power to either shut down the site or purport to order the cessation of the concrete pour.
Steve Irwin
99 It is further concluded that the response provided by Mr Kong to Mr Tozer that he was Steve Irwin also constitutes a contravention of s 500.
100 Mr Kong may have regarded the response as “funny”. He accepted as much during his cross-examination on this issue.
101 But there can be no question other than that this constitutes acting “in an improper manner”. The response, moreover, exposes a fundamental failure on the part of Mr Kong to respect the “balance” sought to be achieved by the Legislature in enacting Part 3-4 of the Fair Work Act and s 497 in particular. The “improper” nature of his conduct emerges from his evident assumption that he can ignore the constraints imposed by the Legislature and mislead – if not treat with contempt – the rights of an occupier to exclude from his premises those who do not comply with the terms of the legislation. “Mere status as a union official of itself confers no untrammelled right of entry to the premises of an employer”: Darlaston v Parker [2010] FCA 771 at [43], (2010) 189 FCR 1 at 13.
Contraventions of s 503
102 The “action” which it is said on behalf of the Director falls within s 503(1)(a) or (b) of the Fair Work Act was:
the conduct of Messrs Bragdon and Kong identifying alleged safety concerns and alleged breaches of safety legislation and directing the cessation of work; and/or
responding to requests to produce their entry permits by saying that they would be produced at a later point of time.
103 The sole response from the Respondents to the case advanced against them by the Director focussed upon the difference in language between s 500 and s 503: s 500 employs the language of exercising “rights in accordance with this Part…”; s 503 employs the language of doing a thing “…authorised by this Part”. Sections 501 and 502 also employ the language of “in accordance with this Part …”.
104 The language employed in s 500, it was accepted on behalf of the Respondents, embraces the entry onto premises for the purpose of exercising a “right … conferred by a State or Territory OHS law…”. That width of language, it was contended on behalf of the Respondents, was permitted by reason of the right being exercised “in accordance with this Part…”. The width of meaning to be ascribed to “in accordance with” was the subject of observation of Reeves J in Ramsay v Sunbuild Pty Ltd [2014] FCA 54, (2014) 221 FCR 315. The Applicants in that proceeding, including Mr Ramsay, were all officers of the CFMEU. A question arose as to whether ss 501 and 502 were confined in their operation to Division 2 of Part 3-4 or whether they also embraced Division 3. In rejecting the narrow construction, and in giving a wider meaning to the phrase “in accordance with” as opposed to other expressions, his Honour concluded:
[94] … once an official of such an organisation becomes a permit holder under Pt 3-4 of the FWA, subject to him or her having a valid purpose and meeting the other requirements of that Part, he or she becomes “a permit holder who is entitled to enter the premises in accordance with this Part”. In other words, I consider the proper focus is on his or her compliance with Part 3-4, not on the underlying entitlement he or she may have under that Part to enter premises, or any rights associated therewith. Of course, if the official concerned does not have a proper purpose for entering the premises, whether under Div 2 of the FWA, or under a State or Territory OHS law, he or she will not have that underlying entitlement. If that is an issue in proceedings brought under s 501 or s 502(1), then it will be necessary to examine the applicable provision concerned. However, I do not consider s 501 or s 502(1) requires that entitlement or those rights to stem from Part 3-4 itself.
[95] This construction is supported by the meaning that has ordinarily been given to the expression “in accordance with”. In various, albeit context-specific situations, that expression has been held to mean: “in conformity with”, or “consistently with” … This is to be contrasted with an expression such as “under this Part”, which has been held to mean (in the context of administrative law): “in pursuance of”, or “under the authority of” …
[96] Applying the former meaning, it follows that the words “in accordance with” in ss 501 and 502(1) do not refer to a permit holder’s entitlement to enter premises or exercise rights under Pt 3-4 of the FWA, but rather to his or her having acted in conformity with the provisions of that Part and gained the status of a permit holder under it. Alternatively, if, as Sunbuild essentially argues, ss 501 and 502(1) of the FWA were intended to refer only to the permission or authority that has been granted to a permit holder in the various provisions of Div 2 (ss 481 to 484 inclusive), and at the same time distinguish the provisions of Div 3 which do not grant any such permission or authority, one would have expected them to use an expression such as “under this Part” in the place of the expression “in accordance with this Part”.
His Honour thus concluded that the prohibitions in ss 501 and 502 of the Fair Work Act against refusing, hindering or obstructing the exercise of rights of entry to premises applied not just to rights of entry conferred by Part 3-4 but also extended to rights of entry conferred by State or Territory Work Health and Safety laws.
105 The language of s 503, however, is differently expressed in terms of “the doing of a thing … authorised by this Part…”. By reason of the contrast between the language of s 501 (and ss 501 and 502) and the language in s 503, it was submitted on behalf of the Respondents that s 503 is confined in its operation such that it does not extend to conduct engaged in for the purposes of Division 3, namely “State or Territory OHS rights”.
106 The argument and the distinction in the language are rejected.
107 Sections 500, 501, 502 and 503 are all contained within Division 4 to Part 3-4. Division 4 deals with “prohibitions”. There is no reason why the Legislature would have intended the prohibitions in ss 500, 501 and 502 to apply to a different range of conduct than that prohibited in s 503. Much clearer language, it is concluded, would have to be used by the Legislature to achieve such a difference in application. That which is “authorised” is the doing of a thing authorised by Part 3-4 – including both Divisions 2 and 3.
108 In the absence of any other defence being raised to the contraventions alleged contrary to s 503, these further contraventions are also found to have been made out.
CONCLUSIONS
109 Whatever may have been the reasons why Messrs Bragdon and Kong behaved in the manner they did, their conduct brought no credit to themselves or to the Union that they represent. It would appear that they certainly had no fond regard for Abigroup. Whatever their objective, it has been concluded that they entered the site when they knew they should have waited for the personal protective equipment to be provided and then to be escorted on site. Once on site, it has been further concluded that they purported to exercise powers which they knew they did not possess. They behaved in a manner which was abusive and misleading. Their conduct can only be described as contemptuous of the limits to their power and the people on site with whom they were dealing.
110 Declaratory relief should be granted.
111 Penalties should also be imposed.
112 The form of both the declaratory relief to be granted and the quantum of penalties to be imposed should be addressed in the immediate future at a separate hearing.
113 An issue canvassed during the hearing was the power of the Court to ensure that any penalties to be paid by Messrs Bragdon and Kong are to be paid personally, and in a manner which ensures that neither can be re-imbursed by (for example) one or other of the remaining Respondents. If a primary purpose of imposing a penalty is deterrence, there may be little deterrence if a penalty imposed upon a union official is simply re-imbursed by his union. Insofar as the correct union is concerned, it was common ground at the conclusion of the hearing that if contraventions were made out and penalties were to be imposed upon Messrs Bragdon and/or Kong, the correct union Respondent to be ordered to pay penalties was the CFMEU.
114 A further hearing date should be set to hear such further evidence and submissions as the parties see fit in relation to the form of relief to be granted.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. |
