FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287

THE COURT ORDERS THAT:

1.    The Applicant is to file and serve minutes of the declarations to be made to give effect to the Court's findings.

2.    Consideration of those minutes and of the remaining issues in the trial is adjourned to a date to be fixed.

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

REASONS FOR JUDGMENT

1    This decision concerns alleged contraventions of s 500 of the Fair Work Act 2009 (Cth) (the FW Act) at the South Australian Health and Medical Research Institute (SAHMRI) on North Terrace, Adelaide on 11 and 22 November 2013. At the time, the SAHMRI building was being constructed by Hindmarsh Construction Australia Pty Ltd (Hindmarsh). A number of subcontractors were engaged in the construction.

2    Section 500 of the FW Act prohibits holders of entry permits who are exercising, or seeking to exercise, rights in accordance with Pt 3-4 of the FW Act from intentionally hindering or obstructing another and from otherwise acting in an improper manner.

3    The applicant is the Director of the Fair Work Building Industry Inspectorate (the Director). This judgment concerns only his application for declarations with respect to the alleged contraventions. The Director's claim for the imposition of penalties in respect of any contraventions found to be established is to be heard and determined separately.

4    The first respondent is the Construction, Forestry, Mining and Energy Union (CFMEU). It is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and, by reason of s 27 of that Act, a body corporate.

5    The second respondent, Mr Stephenson, was formerly employed by the CFMEU as an organiser in its Construction and General Division, South Australian Branch.

6    The third respondent, Mr Kirner, was in 2013 the District Secretary of the Forestry and Furnishing Products Division of the CFMEU in South Australia.

7    The fourth respondent, Mr Cartledge, was in 2013 the Branch Secretary of the CFMEU Construction and General Division in South Australian.

8    Mr Stephenson is alleged to have contravened s 500 on 11 November 2013 and Mr Kirner to have contravened it on 22 November 2013. Mr Cartledge is alleged to have been knowingly concerned, within the meaning of s 550(2) of the FW Act, in Mr Stephenson's contravention and, accordingly, by reason of s 550(1) himself to have contravened s 500.

9    The Director's case against the CFMEU in respect of the contraventions alleged on both dates rests on s 793 of the FW Act which deems certain conduct of officers or employees of a body such as the CFMEU to have been engaged in also by that body.

10    Each of the respondents admitted the Director's standing to bring the present proceedings.

11    Initially, all of the respondents denied the alleged contraventions. However, shortly before the commencement of the trial, Mr Stephenson and Mr Cartledge admitted the contraventions alleged against them and the conduct relied upon by the Director for those contraventions. The CFMEU also admitted that it was to be taken to have contravened s 500 of the FW Act by reason of Mr Stephenson's conduct on 11 November 2013.

12    Both Mr Kirner and the CFMEU maintained their denials of the contraventions of s 500 on 22 November alleged by the Director.

13    Accordingly, the findings in these reasons concerning the contraventions on 11 November 2013 are made by reference to the admissions in the pleadings and the undisputed evidence presented by the Director. The findings in respect of the alleged contraventions on 22 November 2013 are made by reference to the disputed evidence.

14    I am satisfied that the Director has established each of the contraventions he alleges. My reasons follow.

Statutory provisions

15    Section 500 provides:

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.

16    The term "permit holder" is defined in s 12 of the FW Act to mean "a person who holds an entry permit". The term "entry permit" is defined by reference to s 512 which provides:

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.

17    The rights bestowed by Pt 3-4 of the FW Act to which s 500 refers are (relevantly) of two kinds. First, Subdiv A authorises a permit holder to enter premises and to exercise rights under ss 482 and 483 "for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder's organisation". The rights to which ss 482 and 483 refer are, in general terms, rights to inspect, to interview, to make copies and to require the production of documents or records for the purposes of inspection.

18    Secondly, Subdiv B which consists of s 484 only, authorises a permit holder to enter premises for the purpose of holding discussions with one or more employees with defined characteristics. It provides:

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

(a)    who perform work on the premises; and

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

(c)    who wish to participate in those discussions.

19    Division 3 in Pt 3-4 recognises that union officials may be authorised under State or Territory workplace health and safety laws to enter premises, but regulates in a number of respects the exercise of rights of entry under those laws. The Act in South Australia is the Work Health and Safety Act 2012 (SA) (the WHS Act).

20    The manner of exercise of a right of entry by a permit holder under Subdivs A and B is governed by ss 487-493 of the FW Act. Section 487 is pertinent presently. It has the effect that, unless the Fair Work Commission (the FWC) has issued an exemption certificate for the entry, a permit holder must, before entering the premises for a s 484 purpose, give the "occupier" of the premises an "entry notice" for the entry.

21    The term "occupier" is defined in s 12 of the FW Act to include a person "in charge of the premises". By s 487(2), an "entry notice" is a notice which complies with s 518. That section specifies the content of an entry notice. Such notices must be given to the occupier during working hours at least 24 hours, but not more than 14 days, before the entry (s 487(3)).

Elements of a s 500 contravention

22    The Director's allegation is that Mr Stephenson and Mr Kirner contravened s 500 by acting in an improper manner. He does not allege that either hindered or obstructed a person in a relevant sense.

23    In these circumstances, the elements of the alleged contraventions to be established by the Director are these:

(a)    Mr Stephenson and Mr Kirner held entry permits issued by the FWC under s 512 of the FW Act;

(b)    Mr Stephenson and Mr Kirner were exercising, or seeking to exercise, rights under Pt 3-4 of the FW Act;

(c)    When exercising or seeking to exercise those rights, Mr Stephenson and Mr Kirner had acted in an improper manner.

24    The parties were not agreed as to whether the Director must also establish, as an element of a s 500 contravention, an intention by the respondents to act in that manner. I am satisfied that the Director does not have to establish an intention of this kind. In a number of decisions, this Court has held that the impropriety or otherwise of conduct for the purposes of s 500 is to be assessed objectively: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 (CFMEU (No 2)) at [106]; Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668 at [97]. The Court has also held that it is not necessary for the Director to establish that the alleged contravenor intended to engage in conduct having that character: Darlaston v Parker [2010] FCA 771, (2010) 189 FCR 1 at [54]; Setka v Gregor (No 2) [2011] FCAFC 90, (2011) 195 FCR 203 at [35]; CFMEU (No 2) at [106]; and Bragdon at [96].

25    I note in addition, that the words in s 500 "or otherwise act in an improper manner" comprehend acts other than those constituting obstruction or hindering: Setka v Gregor (No 2) at [30].

26    The Director alleges that each of Mr Stephenson and Mr Kirner was on 11 November and 22 November 2013 respectively exercising, or seeking to exercise, rights under s 484 of the FW Act. Mr Stephenson admits that allegation but Mr Kirner denies it.

27    A number of matters were not in issue: first, that each of Mr Stephenson and Mr Kirner held an entry permit issued by the FWC under s 512 of the FW Act; secondly, that neither had held an exemption certificate issued by the FWC in respect of their entry; thirdly, that neither had given any notice under s 487 to Hindmarsh before effecting their entry; fourthly, that each had entered the SAHMRI site; and, fifthly, that each of Mr Cartledge and Mr Kirner was an officer of the CFMEU.

28    The evidence of Mr Bickerdike, the Senior Project Manager of Hindmarsh for the site, established that Hindmarsh was an occupier of the SAHMRI site in November 2013.

Events on 11 November 2013

29    As already noted, in November 2013, Mr Stephenson was employed by the CFMEU as an organiser. He attended at the SAHMRI site shortly after 10.00am on 11 November, entered the security hut and identified himself to a security officer. He did not sign the Visitors' Book.

30    Mr Bickerdike was the only witness to give evidence of what then occurred and his evidence was not challenged. On the basis of the admissions and Mr Bickerdike's evidence, I make the following findings.

31    Mr Bickerdike learnt at about 9.00 am of Mr Stephenson's proposed attendance at the SAHMRI site. He satisfied himself that Hindmarsh had not received any notice of entry from Mr Stephenson in respect of the attendance. Mr Bickerdike then telephoned Mr Cartledge (at 9.37 am). He asked Mr Cartledge why no notice of entry had been provided. Mr Cartledge responded that no notice would be provided and confirmed that Mr Stephenson would be attending at the site. He said that Mr Stephenson would follow any reasonable safety direction but that was all. Mr Bickerdike told Mr Cartledge that, should Mr Stephenson attend the site without having provided a notice, he would record the incident and report it to Fair Work Building and Construction (FWBC).

32    Mr Bickerdike also asked Mr Cartledge why the CFMEU had provided notices of entry in the past but was not doing so in the case of Mr Stephenson's proposed attendance. The Director did not lead evidence of Mr Cartledge's response to that question.

33    Shortly after 10.00 am, Mr Bickerdike was notified by a security officer that Mr Stephenson was at Gate 3 to the SAHMRI site. He went to that gate. At Mr Bickerdike's request, Mr Stephenson produced his entry permit. Mr Bickerdike then told Mr Stephenson that he was in breach of the FW Act as he had not provided an entry notice and asked him to leave. Mr Stephenson refused and said that he wanted to speak to Ceiling and Wall Constructors (CWC), a subcontractor working on the site. Mr Bickerdike told Mr Stephenson that for safety reasons he would be followed by Mr McLeavey, the Senior Site Manager.

34    Mr Stephenson then went to some lunchrooms where he addressed a number of workers having their break. After doing so he left the site, having been there for about 30 minutes.

35    In these circumstances, the contravention by Mr Stephenson of s 500 is established. He was the holder of an entry permit issued under s 512 of the FW Act and seeking to exercise rights under s 484 of that Act. He acted in an improper manner by entering the SAHMRI site without having given a notice of entry as required by s 487 and by remaining on site after Mr Bickerdike had made it plain to him that his entry was not permitted. He acted in defiance of Mr Bickerdike's request that he leave the site.

36    Mr Cartledge was knowingly concerned in Mr Stephenson's contravention. He knew that Mr Stephenson was a permit holder; knew that Mr Stephenson was exercising or seeking to exercise rights under s 484 of the FW Act; knew that Mr Stephenson had not provided a notice of entry as required by s 487; and he intended that, despite not having an authorisation, Mr Stephenson should nevertheless enter the site and speak to employees working there. It can be inferred that Mr Cartledge was in a position, by reason of his position, to have directed Mr Stephenson not to enter the site and he did not do so. Mr Cartledge had knowledge of each of the matters comprising Mr Stephenson's contravention and intended that that contravention should occur.

37    Section 793 of the FW Act has the effect that Mr Stephenson's conduct is deemed to be also conduct by the CFMEU. Section 793 provides:

Conduct of a body corporate

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

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

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

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

State of mind of a body corporate

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

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

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

Meaning of state of mind

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

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

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

Disapplication of Part 2.5 of the Criminal Code

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

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

38    As can be seen, conduct engaged in on behalf of a body corporate by an officer or employee within the scope of his or her actual or apparent authority is taken, for the purposes of the FW Act, to have been engaged in also by the body. Mr Stephenson's conduct satisfies that description. Likewise, the intention of Mr Stephenson can be attributed to the CFMEU – see s 793(2) and (3).

39    Accordingly, the declarations sought by the Director with respect to Mr Stephenson's entry on 11 November 2013 will be made.

Events on 22 November 2013

40    The Court heard evidence from two witnesses as to the conduct of Mr Kirner alleged to comprise the contravention of s 500 on 22 November 2013. They were Mr Bickerdike and Mr Kirner.

41    Mr Bickerdike was the more impressive witness as in general (but not always) he answered questions responsively and appropriately. In addition, he had the advantage of his contemporaneous notes. However, some of his evidence had a defensive quality about it.

42    Mr Kirner's evidence was marked by self-justificatory and non-responsive answers to questions. He answered many questions at an unhelpful level of generality. I had the firm impression that Mr Kirner frequently understood the implications of a question and sought, consciously, to avoid them. This undermined my confidence in the reliability of his evidence.

43    On those topics on which there were conflicts in the evidence of Mr Bickerdike and Mr Kirner, I have generally preferred that of Mr Bickerdike. There are, however, some aspects of Mr Bickerdike's evidence which I do not accept.

44    Mr Kirner arrived at the SAHMRI site at about 11 am. He went first to the sign-in office located adjacent to Gate 3 on an access road running alongside the north-eastern boundary of the site. He signed the Visitors' Book, entering "EBA/OHS" as the reasons for his visit. These were abbreviations for "enterprise bargaining agreement" and "occupational health and safety" respectively.

45    The Visitors' Book records Mr Kirner's time of entry as 4 pm and the time of his departure as 5 pm. These times are obviously inaccurate. Mr Kirner said that he had not entered either time. I am willing to accept that evidence but it means that Mr Kirner must have failed to comply with the requirements for a site visit by not entering any arrival or departure times at all.

46    Mr Kirner then walked outside the perimeter of the SAHMRI site back to North Terrace before turning and walking in a westerly direction along North Terrace (again outside the perimeter of the site) until he reached Gate 1 or Gate 2 (he could not recall which). Gate 1 was further to the west than Gate 2. Mr Kirner entered one or other of these gates but did not proceed very far because he was informed that Mr Bickerdike was aware of his presence. He then waited for Mr Bickerdike to arrive, talking in the meantime to Mr Neale, a Safety Officer, and Mr Thornley, a Hindmarsh Manager.

47    Mr Bickerdike learnt at about 11 am that Mr Kirner had entered the SAHMRI site. He went to Gate 1. Mr Kirner was then standing approximately 8 metres inside the site perimeter fencing near Gate 1. Mr Kirner said that he had been in the position near Gate 1 for approximately 10-15 minutes before Mr Bickerdike arrived but I consider that it was probably well less than that, and probably about five minutes.

48    Mr Bickerdike told Mr Kirner immediately that he had not provided a notice of entry and asked him why he was on site. There is a difference between Mr Bickerdike and Mr Kirner as to Mr Kirner's response. Mr Bickerdike said that Mr Kirner told him that he was on site to discuss three issues: the Enterprise Bargaining Agreement between a subcontractor, Ausrise, and its employees; allegations of underpayment; and a risk of self-harm involving an employee of Construction Glazing. Mr Kirner, on the other hand, said that he had told Mr Bickerdike of only two matters, in the following terms:

I'm here for two reasons, the safety issue (suicide) and the EBA issue. Ausrise are aware of the ballot as they asked me to conduct it. I assume that Hindmarsh knew I was coming down because I would have thought you have seen the posters up about it in the lunchroom. And I'm not leaving on the safety issue, but I'll have the ballot out the front of the gate.

I will make findings about this difference shortly.

49    Mr Bickerdike then asked to see Mr Kirner's entry permit. Mr Kirner produced the right of entry permits issued by the FWC under s 512 of the FW Act and by the authorising authority under s 134 of the WHS Act. Mr Bickerdike inspected each permit.

50    Mr Bickerdike told Mr Kirner that he understood that Mr Kirner had to provide a notice of entry if he intended to conduct official union business. Mr Kirner responded saying that he would be going on site. Mr Bickerdike repeated his request that Mr Kirner leave. He told Mr Kirner that he was welcome to have his discussions with the Ausrise workers off site, on the footpath, in a coffee shop, or anywhere else but not inside the site boundary. Mr Kirner responded saying that he was not a dog and would not go out onto the footpath. Mr Bickerdike answered saying that he had not called Mr Kirner a dog and that footpaths are used by pedestrians.

51    At this stage, Mr Bickerdike used his mobile phone to take photographs of Mr Kirner. He had not asked for Mr Kirner's consent to do so. Mr Kirner raised his fist in what he described in his evidence as the "solidarity symbol". Mr Kirner then walked away from him by a semi-circular route to Gate 1 through which he exited the site. Mr Bickerdike said that in doing so, Mr Kirner walked between a parked concrete truck and a concrete pump.

52    Mr Kirner's account was similar but less complete. He said that after inspecting his two entry permits Mr Bickerdike asked aggressively "are you refusing to leave [the] site?" and then used his mobile phone to take photographs of him. Mr Kirner said that he then responded:

You all know there was going to be a ballot today. But if you're not going to let me have a ballot in the lunchroom area, then I'll have it outside the front gate. I will need to contact some of the workers to let them know we need to have the ballot outside the front gate.

53    I regard Mr Bickerdike's account about these matters as more likely, and accept it. As I have said, he was the more impressive of the two witnesses and he had the advantage of some notes made that same day.

54    It is true that the reliability of Mr Bickerdike's notes is diminished by some inaccuracies. The notes were made on a pro-forma electronic document provided to Hindmarsh by Master Builders South Australia. In the box adjacent to the query "What was the reason given for entry?" Mr Bickerdike wrote "No reason given". Mr Bickerdike acknowledged that that was wrong and that Mr Kirner had given him the reasons referred to earlier.

55    In the box adjacent to the question "Did any work stop during the discussions?", Mr Bickerdike wrote "Yes". In his cross-examination, he said that he was referring to his own work which had been interrupted for about 30 minutes. It is improbable that the query related to the work of Mr Bickerdike himself, as it appeared under the heading concerning discussions by a union official with employees pursuant to s 484 of the FW Act or s 121 of the WHS Act. I thought that Mr Bickerdike's evidence on this topic was not convincing and that he was attempting retrospectively to justify an erroneous answer in the pro-forma questionnaire.

56    Mr Bickerdike also said that work had stopped in the structural plenum by reason of Mr Kirner walking between the parked concrete truck and a concrete pump. Mr Kirner denied doing so. I accept that this may have been a short pause in the work as those in the vicinity looked at Mr Bickerdike confronting Mr Kirner, but consider that that was for a few minutes only. Otherwise, Mr Kirner's presence did not have the effect of stopping work.

57    I am satisfied that, after speaking to Mr Bickerdike, Mr Kirner did walk further into the site, by following the semi-circular route on his way to Gate 1. By this time he had decided in his own mind that he would conduct the planned EBA ballot on North Terrace but he had not told Mr Bickerdike of this. Accordingly, Mr Bickerdike construed his conduct as that of him deliberately walking further into the site. Instead, Mr Kirner was looking for a means of letting the Ausrise workers know. He decided to ask Mr Thornley to inform the Ausrise workers that he would conduct the ballot on the footpath of North Terrace and had to walk further into the site to make that request. In doing so he walked between the concrete truck and the concrete pump, but that was only momentary.

58    Mr Kirner then left the site walking through Gate 1 onto North Terrace.

59    Mr Thornley must have conveyed Mr Kirner's message as, shortly afterwards, the Ausrise workers did leave the site and move to the footpath on North Terrace. Mr Kirner conducted the planned ballot at that location.

60    Mr Bickerdike then left the area to return to his own duties. He asked Mr Neale to monitor Mr Kirner's meeting and, in the event that he tried to re-enter, to tell him to leave.

61    The EBA ballot which Mr Kirner conducted with the Ausrise workers took about 10 minutes. On its completion, Mr Kirner re-entered the SAHMRI site. There is no evidence that any attempt was made to preclude him from doing so.

62    Mr Kirner went to the lunchroom in the basement on the site. His purpose was to obtain assistance for Paul, the employee of Construction Glazing, who he thought was at risk of suicide. In the lunchroom, he spoke to a number of workers whom he knew to be employed by Construction Glazing and to be CFMEU members.

63    Mr Kirner informed the employees of Paul's situation and of a program known as "Mates In Construction". That is a program directed to reducing suicide risk and improving the mental health and well-being of workers within the Australian construction industry. Mr Kirner asked the workers who knew Paul to contact him and provide him with support.

64    Mr Kirner then left the site and did not return again that day. The evidence did not disclose the time at which Mr Kirner left the site.

65    Later that day, at 2:35 pm, Mr Kirner provided a written report to SafeWork SA. He believed that s 117(6) of the WHS Act obliged him to do so.

66    It is convenient at this point to make findings as to the difference in the evidence about Mr Kirner's statement of his purpose for attending the site. Mr Kirner's account that he had mentioned only two matters is supported by the reasons for the visit which he had recorded in the Visitors' Book. Mr Bickerdike's account is supported by the written notes of the incident which he prepared in the form of a report later the same day. As already indicated, my confidence in the reliability of that report was diminished by the inaccuracies to which I referred earlier. However, in the circumstances, I consider it unlikely that Mr Bickerdike was mistaken about the reasons Mr Kirner gave for the visit and I accept his evidence. He had asked Mr Kirner expressly as to his purpose. An underpayment issue was plainly an issue about which the CFMEU could be legitimately concerned, and its inclusion may, at least in part, have justified Mr Kirner's attendance. It may be that Mr Kirner gave less prominence to the underpayment issue in his own mind, possibly because he regarded it as being secondary to the principal reasons for his attendance.

67    I also consider it unlikely, and do not accept, that Mr Kirner told Mr Bickerdike in their first interchange that he would conduct the EBA ballot outside the front gate. His initial response to Mr Bickerdike was that he would be going on to the site.

The conduct relied upon

68    During counsels' final submissions, an issue emerged as to whether the Director's pleaded case encompassed all of Mr Kirner's conduct at the SAHMRI site on 22 November 2013 and, in particular, his re-entry after he had conducted the EBA ballot with the Ausrise workers.

69    Counsel for the respondents submitted that the Director's pleading did not contain any allegation that Mr Kirner's conduct in returning to the site was improper.

70    Counsel for the Director, on the other hand, submitted that the pleaded contravention was to be understood as referrable to all of Mr Kirner's attendances at the site on 22 November 2013, that is, as though there was a single entry, interrupted only temporarily by Mr Kirner having moved on to the North Terrace footpath to conduct the ballot.

71    In my opinion, a fair reading of the relevant portions of the Further Amended Statement of Claim (FASC) indicates that the position is not clear. I set out in full the relevant paragraphs:

[11]    On 22 November 2013, the Third Respondent entered at the Site at approximately 11:00 am.

[12]    The Third Respondent was exercising, or seeking to exercise, his right under section 484 of the FW Act to enter the Site to hold discussions with one or more employees who performed work on the Site, whose industrial interests the First Respondent was entitled to represent and who wished to participate in those discussions.

[13]    The Third Respondent acted in an improper manner.

Particulars of acting in an improper manner

[13.1]    The Third Respondent entered the Site without authorisation;

[13.2]    The Third Respondent failed to provide written notice of entry as required under section 487 of the FW Act;

[13.3]    The Third Respondent refused to comply with a request from a representative of Hindmarsh that he leave the Site;

Particulars

[13.3.1]    Upon arriving at the Gate 1 entrance to the Site, the Third Respondent was asked to leave the Site by Bickerdike;

[13.3.2]    The Third Respondent responded to this request by saying words to the effect that he refused to leave the Site;

[13.3.3]    The Third Respondent then proceeded further onto the Site and remained on the Site for approximately 40 minutes.

[13.4]    The Third Respondent failed to correctly complete the visitors' register, which was a Site entry requirement; and

Particulars

[13.4.1]    The Third Respondent did not enter accurate times for his arrival to and departure from the Site in the "Time in" and "Time out" columns of the visitors' register; and

[13.5]    The Third Respondent inconvenienced and disrupted Hindmarsh by:

[13.5.1]    failing to provide notice of entry;

[13.5.2]    entering the Site without authorisation; and

[13.5.3]    walking around the Site,

72    As can be seen, in these paragraphs the Director refers only to a single entry on to the SAHMRI site, at [11], and makes no reference at all to the re-entry. On the contrary, [13.3.3] conveys an allegation that Mr Kirner, having refused to comply with the direction to leave the site, proceeded further into the site and remained there for approximately 40 minutes. There is no reference to Mr Kirner's absence from the site for part of that 40 minutes. Further still, the particulars in [13.4.1] refer only to a single "arrival" at and "departure" from the site. There is accordingly, an ambiguity in the pleading as it is capable of being understood as an allegation in relation to Mr Kirner's first entry only or as an allegation in respect of all of his conduct without regard to his temporary absence.

73    Counsel for the Director submitted that the respondents must have understood that the propriety of Mr Kirner's conduct when he re-entered the site to speak to the Construction Glazing employees about the circumstances of the worker, Paul, was in question. The fact that Mr Kirner himself gave evidence about the circumstances of his return is one indication that that is so. The fact that the respondents adduced evidence from three other witnesses, Mr Maxey, Mr Cleland, and Mr Lee whose evidence was directed to this topic, is another.

74    On the other hand, the Director did not, as part of his case in chief, lead any direct evidence concerning Mr Kirner's return. In particular, the Director did not lead any evidence from Mr Neale, the Hindmarsh Manager who had been instructed by Mr Bickerdike to maintain observations of Mr Kirner and, in the event that he attempted to return, to tell him to leave. Apart from some short hearsay evidence from Mr Bickerdike, the only evidence on this topic comes from the respondents' witnesses.

75    It may be doubtful that the respondents would suffer any material prejudice if the Court did take account of the circumstances of Mr Kirner's return in the determination of the propriety of his conduct on the 22 November. Senior counsel for the respondents did not assert any such prejudice.

76    It is unfortunate that there is this uncertainty affecting the nature of the Director's case. In the circumstances, I consider that the issue between the parties should be resolved by reference to the pleadings and without resort to an examination of the respective subjective understandings of each party. Given the ambiguity and the nature of the proceedings, I consider that the narrower view for which the respondents contended should be upheld. I conclude that the FASC did not plead Mr Kirner's conduct in re-entering the site as part of the allegation of his improper conduct and will, accordingly, exclude it from consideration for that purpose.

The issues for determination

77    The first issue is whether the Director has established that, when Mr Kirner attended the SAHMRI site on 22 November 2013, he was exercising, or seeking to exercise, rights in accordance with Pt 3-4 of the FW Act and, in particular, rights under s 484 as he alleges. This involves a number of sub-issues:

(a)    Was Mr Kirner's attendance pursuant to a "standing invitation";

(b)    In addition, or alternatively, was Mr Kirner's attendance pursuant to an invitation from the subcontractor Ausrise;

(c)    Alternatively again, was Mr Kirner's attendance pursuant to a right of entry granted by Pt 7 of the WHS Act or, at least, pursuant to his honest and reasonable belief that his entry was so authorised;

(d)    Even if the Director negatived the basis for entry identified in (a), (b) and (c), is it necessary for the Director to establish, as part of his proof that Mr Kirner had entered for the s 484 purpose, that there were:

(i)    employees on the site;

(ii)    that these were employees whose industrial interests the CFMEU was entitled to represent; and

(iii)    that those employees wished to participate in discussions with Mr Kirner;

(e)    If the answer to (d) is yes, has the Director proved those matters?

78    The second issue is that of whether, even if all those matters are established, Mr Kirner's conduct is to be characterised as improper?

79    The onus of establishing the contraventions of s 500 on 22 November 2013 rests on the Director. In considering whether that onus has been discharged, the Court should have regard to the principles stated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, reflected in s 140 of the Evidence Act 1995 (Cth).

Did Mr Kirner have a "standing invitation"?

80    In the Third Further Amended Defence (3FAD) filed four days before the trial commenced, Mr Kirner pleaded for the first time that he had been given a standing invitation to enter the SAHMRI site by representatives of Hindmarsh in or about March 2013. He pleaded that the invitation had been given to him in a meeting in the sign-in office on the site and had been confirmed in subsequent oral communications. Mr Kirner went on to plead that the standing invitation was to the effect that he should sign-in at the site, report to the safety office and could then enter without reference to any rights of entry under legislation or by written notice.

81    Previously, Mr Kirner had pleaded a standing invitation with a different origin. I will refer to this later. It is convenient first to make findings concerning the standing invitation pleaded in the 3FAD.

82    Mr Kirner gave evidence about the pleaded discussion in March 2013 in which the standing invitation was said to have been conveyed. He said that it occurred on the occasion of his first visit to the SAHMRI site when he had attended for the purpose of introducing himself. After signing in, Mr Kirner said that he met a Hindmarsh manager whom he could not identify. He believes that he was then introduced to site safety officers, Mr Mitchell, Mr Neale, and Mr McLeavey. In fact, Mr McLeavey held a more senior position, as he was a Senior Site Manager. Mr McLeavey was nevertheless subordinate to Mr Bickerdike.

83    In the affidavit containing his evidence in chief, Mr Kirner gave the following account of what was said:

[8]    They explained to me that the protocol to come onto the site was to sign in and then go to the safety office and say hello, and that I would then be put in touch with the site supervisor (or someone would speak to the site supervisor about the visit). I would then be told where on the site the people I wanted to talk to were, or they would put me in touch with the appropriate sub-contractor.

[9]    There was no mention of right of entry notices or permits, or anything to do with rights of entry under any legislation by anyone.

84    As can be seen, Mr Kirner did not claim to have been told that the "protocol" was in substitution for the exercise of rights of entry under Pt 3-4 of the FW Act or even that Hindmarsh was waiving the need for compliance with the formal requirements concerning entry. On one view of his account of what he was told, it was only of the practice which would be adopted by Hindmarsh when he arrived at the site, having complied with the formal requirements.

85    However, on Mr Kirner's own evidence, any uncertainty in that respect was removed on the occasion of his next visit to the site. Mr Kirner could not recall when that visit occurred other than that it was an occasion when he was accompanied by some other CFMEU officials. On this occasion, he met Mr Bickerdike in the sign-in office. Mr Kirner described a conversation to the following effect occurring:

Mr Bickerdike:    What are you doing here? You need to give 24 hours' notice.

Mr Kirner:    That's not how it always works; it's not an absolute requirement, for example, with safety.

Mr Kirner appears to have been referring in this response to the entitlement granted by s 117 of the WHS Act, which permits a permit holder to enter without notice for the purpose of inquiry into a suspected contravention of the WHS Act. Otherwise, he appears, tacitly, to have indicated his acceptance of the correctness of Mr Bickerdike's assertion.

86    Mr Kirner described Mr Bickerdike as being aggressive and overbearing during these remarks. It is not possible to making a finding about that but, even if it was the case, Mr Bickerdike's manner should have served to reinforce to Mr Kirner that Hindmarsh, by its Senior Project Manager, was insisting on him providing an entry notice in accordance with the FW Act.

87    Mr Kirner sought to support his claim that he had a standing invitation by reference to subsequent statements which he attributed to Mr Mitchell and to Mr Neale, each of whom were employed by Hindmarsh as Safety Advisors, and later to Mr McLeavey.

88    Mr Kirner said that, on the occasion that Mr Bickerdike had challenged him, telling him that he had to give 24 hours' notice before entering the site, he (Mr Kirner) had afterwards remarked to Mr Mitchell that Mr Bickerdike had "a pretty bad attitude" and that Mr Mitchell had replied with words to the effect of:

That's just him. You should come through us.

89    Mr Kirner deposed that he had understood Mr Mitchell to be telling him that Mr Bickerdike was a difficult person with whom to deal and that there would be no issues with his entry if he "went through" Mr Mitchell, Mr Neale or McLeavey. He had in fact been permitted by Mr Mitchell on the same day to go to two lunchrooms and to speak to employees. Mr Kirner said that, for part of this time, he had been joined by Mr McLeavey, and no further point had been made that day about his being on site without previously providing notice.

90    I regarded Mr Kirner's evidence on this topic as implausible, and do not accept it. Even if Mr Kirner did understand that he had been issued with a standing invitation in the meeting in March, and that that invitation had amounted to a waiver of the requirements of the FW Act, Mr Bickerdike had on the occasion of his second visit made the position clear. He had challenged Mr Kirner's presence and told him directly that he had to give 24 hours' notice. Mr Bickerdike was at the time the Senior Project Manager at the site. Mr Kirner knew that he was "the Site Manager" and that he was senior to Mr Mitchell, Mr Neale and Mr McLeavey. He must have appreciated that Mr Bickerdike's statement was more authoritative, and I am satisfied that he did. I am satisfied that Mr Kirner understood at the time that Hindmarsh, by its senior management, was insisting upon compliance with the formal requirements of the FW Act with respect to his entries onto the site.

91    It is improbable that Mr Kirner could have understood Mr Mitchell, the occupant of a position which was obviously subordinate to that of Mr Bickerdike, as countermanding Mr Bickerdike's insistence on proper notice. Further still, Mr Kirner did not claim that he had informed Mr Mitchell of Mr Bickerdike's insistence on his compliance with the formal requirements for entry. That also makes it improbable that any statement by Mr Mitchell was referrable to Mr Bickerdike's insistence on notice, and that Mr Kirner could not have understood it in that way. Further again, the evidence does not indicate any knowledge by Mr Mitchell, one way or the other, as to whether Mr Kirner had, on this occasion, provided a s 487 notice with respect to his entry on that day.

92    Mr Kirner also referred to a third visit in which he spoke either to Mr Mitchell or Mr Neale in the safety office. He said that one or other of these men had told him that Mr Bickerdike had been "taken to task for the way he approached you last time you were here. Just come through us in the future". Mr Kirner deposed that he understood this statement to mean that he could follow the "protocol" which he said had been established in the March meeting.

93    Again, I do not accept this evidence. To my mind, it is implausible that either Mr Mitchell or Mr Neale would have referred to Mr Bickerdike, the Senior Project Manager, as having been "taken to task" for his approach to Mr Kirner. I also accept Mr Bickerdike's evidence that he had not been "taken to task" by anyone in relation to any interaction which he had had with Mr Kirner. This too makes it unlikely that Mr Mitchell or Mr Neale would have made a statement to the effect attributed to them.

94    Although the respondents led evidence from Mr Mitchell, they did not lead any evidence from him corroborating the remarks which Mr Kirner attributed to him. In fact, Mr Mitchell's evidence is inconsistent with that of Mr Kirner on this topic. Mr Mitchell said in his affidavit:

[16]    Mr Bickerdike told me at some point that CFMEU officials should give entry notices and use their rights of entry under the Act. I told Mr Bickerdike that, myself being at the bottom of the food chain, I was not in a position to ask or enforce that, and that I did not consider it my role to do so, and such a change in approach needed to be communicated by senior management and not by me. I explained that I was a member of the Union and that it was not my role to implement any enforcement of the change in approach, because it was not my role. ... I don't recall that issue being discussed with me again.

[17]    I am not certain whether I told the Union that Mr Bickerdike was requiring them to use rights of entry, but I probably did.

(Emphasis added)

I will refer later to the change of in approach to which Mr Mitchell referred in these passages.

95    Mr Kirner said that he attended the SAHMRI site on some eight further occasions until September 2013 without providing written notice of entry pursuant to s 487. On one occasion, he had passed Mr Bickerdike on a stairwell and had been rebuked by Mr Bickerdike for not wearing a long sleeved shirt in compliance with site rules. Mr Bickerdike had not challenged his entitlement to be present on site on that occasion.

96    From September 2013, Mr Kirner did for a time provide written notices of entry. I will return shortly to the evidence which he gave about his reasons for doing so.

97    Mr Kirner said that on the occasion of one the attendances for which he had provided a notice of entry, either Mr McLeavey or Mr Neale had said words to the effect of:

If you're just going into the lunchrooms to talk to the blokes, you don't need to put in a right of entry.

He said that he then ceased providing notices of entry.

98    These were the circumstances which Mr Kirner said gave rise to an understanding on his part that he had a "standing invitation" to attend the SAHMRI site without complying with the formal requirements for entry.

99    Mr Kirner's evidence that, after the third attendance, he had attended the SAHMRI site on about eight occasions without providing a notice of entry may well be correct. However, the fact that Mr Kirner did attend without having provided a notice of entry does not confirm the existence of the standing invitation alleged in the defence. It is just as consistent with Hindmarsh not always having enforced compliance with the requirements of the FW Act in respect of visits to the site offices or lunchrooms, which were both outside the construction area of the site. I will return to that topic.

100    Mr Kirner's awareness of the requirement to provide notices of entry is, in my opinion, evidenced by the circumstance that he did provide such notices for his entries in September and October 2013.

101    Other CFMEU officials had also provided notices of entry in the latter part of 2013. In the period between July and November 2013, CFMEU officials provided notices of entry pursuant to s 487 of the FW Act for entries onto the SAHMRI site as follows:

102    It is theoretically possible that a "standing invitation" had been issued to Mr Kirner, and not to the other officials, but this seems improbable. If a standing invitation had been issued, it is much more likely to have been issued to all CFMEU officials. It is evident, however, that the other officials cannot have regarded themselves as having a standing invitation which relieved them from having to provide notices of entry.

103    As can be seen in the table, Mr Kirner provided notices of entry for his attendances on 4 and 12 September and 23 and 30 October.

104    On its face, Mr Kirner's provision of notices of entry on those four dates seems inconsistent with him understanding that he had a standing invitation to enter without complying with Pt 3-4 of the FW Act. Mr Kirner's explanation was that he had commenced providing notices of entry "to facilitate a speedier resolution of some industrial issues" and, by implication, not because of any understanding that he was required to do so. Mr Kirner went on to explain that he believed that the provision of an entry notice could help resolve issues because of the effect if often had in bringing the issue to the attention of more senior management. It was therefore a way of making clear to the principal contractor and others that there were issues which need to be resolved. In his oral evidence, Mr Kirner maintained this explanation.

105    However, none of Mr Kirner's notices indicated on their face the existence of a dispute or identified any other issue in a way which may have alerted Hindmarsh to be concerned or otherwise prompt it to intervene. All four of the notices indicated only that Mr Kirner wished to enter "to hold discussions" with employees or members employed by identified subcontractors. The notice in respect of the entry for 4 September indicated that Mr Kirner proposed to enter "to hold discussions with one or more employees of the following companies", and listed 10 such companies. The notice in respect of the entry for 12 September indicated only that Mr Kirner proposed to enter "to hold discussions with Construction Glazing". It did not give any indication that there was a dispute, or a potential dispute, involving Construction Glazing, let alone the subject matter of the dispute. The notice with respect to the proposed entries on 23 and 30 October 2013 indicated that Mr Kirner wished to hold discussions with members of the CFMEU employed by Ausrise Aluminium in connection with enterprise bargaining negotiations.

106    Counsel for Mr Kirner did not call any evidence from Mr McLeavey or Mr Neale to corroborate this account of the conversation which led to him ceasing to provide notices of entry. It is inconsistent with the earlier clear statement by Mr Bickerdike and also with Mr Mitchell's account that he had "probably" told the CFMEU officials that notices of entry were required.

107    Counsel for the respondents submitted that Jones v Dunkel (1959) 101 CLR 298 inferences should be drawn adversely to the Director's case by reason of his failure to adduce evidence from Mr McLeavey and Mr Thornley, as well as from Mr Anderson, the Project Manager, and from Hindmarsh's Safety Officers, Mr Neale and Mr O'Dea.

108    I decline to act on that submission. It was just as open to the respondents to call these witnesses as it was the Director. True it is that the Director had obtained an affidavit from Mr McLeavey but that was principally in relation to the contravention alleged to have been committed by Mr Stephenson on 11 November. It was open to the respondents to lead evidence from him in relation to the events on 22 November if they wished. In these circumstances, I think that the inferences to be drawn from the absence of these named persons from the witness box are neutral. I note that the respondents did not suggest that the Director was under a duty, arising from the nature of the proceedings, to lead evidence from these witnesses: cf Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 at [147]-[155].

109    In these circumstances, I consider it improbable that Mr Kirner was providing notices of entry for the purpose he claimed, namely, "getting a speedier resolution of a dispute with a subcontractor when it's brought to the attention of the principal contractor". I considered that Mr Kirner's evidence on this topic was unconvincing and was in the nature of a retrospective justification for his provision of notices which he had known at the time were required.

A different standing invitation?

110    Before reaching a final conclusion concerning the existence of the pleaded "standing invitation", it is appropriate to refer to other evidence which bears on this issue more generally and to track the developments in Mr Kirner's filed defences on the topic.

111    A plea of a standing invitation was first made in the Further Amended Defence filed on 23 April 2015. Mr Stephenson, who was then denying his contravention of s 500, pleaded in [8] a form of "standing invitation" by Hindmarsh to officials of the CFMEU to the effect that they could come to the site without providing prior notice, make themselves known and then be escorted around the site by Hindmarsh personnel.

112    In the same Further Amended Defence, Mr Kirner pleaded that his entry on 22 November had been pursuant to the standing invitation pleaded by Mr Stephenson. Each of Mr Stephenson and Mr Kirner maintained the same plea in the Second Further Amended Defence filed on 25 August 2015, seven days before the trial commenced.

113    However, in the 3FAD filed four days before the trial commenced, Mr Stephenson withdrew the plea in [8] in the two previous defences and admitted the Director's allegation that on 11 November 2013 he had been exercising, or seeking to exercise, his right under s 484.

114    Mr Kirner made a consequential amendment to his defence. He withdrew altogether the plea that he had entered the site pursuant to the standing invitation pleaded by Mr Stephenson and instead pleaded the standing invitation which I have been addressing so far.

115    The affidavits from the parties' witnesses had been prepared at a time when Mr Stephenson's plea of a standing invitation had been the only such invitation pleaded. Despite Mr Stephenson's withdrawal of that plea and despite Mr Kirner's plea of a different standing invitation, the parties still led much of the same evidence at the trial. This was so even though Mr Kirner had not pleaded that he was aware, between March and November 2013, of the matters previously relied upon by Mr Stephenson. Nevertheless, it is appropriate to make findings concerning aspects of this evidence because it forms an element of the context in which Mr Kirner's pleaded standing invitation and his subsequent conduct is to be assessed.

116    Mr Staltari was the Senior Project Manager for Hindmarsh on the SAHMRI site for the 18 month period between 6 April 2010 and 7 October 2011. He had come from Canberra to Adelaide for this purpose. Mr Bickerdike took over as Senior Project Manager in November 2011.

117    Mr Staltari agreed that, in either late 2010 or early 2011, he had referred at a meeting (at which some CFMEU officials may have been present) to a practice in Canberra by which union representatives had been permitted to come to a site without notice, to sign-in like other visitors and then to meet members of the senior management team in the project site office. On occasions, a management team member had invited the union official to accompany him or her on to the construction area of the site, but not for the purpose of conducting union business. If union officials had wished to enter the construction area of the site for that purpose, then they had first to provide an entry notice and otherwise comply with the requirements of the FW Act.

118    Mr Staltari said that he had followed the same practice on the SAHMRI site. To that extent, there had been a standing invitation but it had not extended to entry on to the construction area. Mr Staltari said that he had not been aware during the period when he was the Senior Project Manager of any union officials entering the construction area of the site without having provided the requisite notice. His attitude of mind at the time was such that, had he become aware that Hindmarsh safety officers were permitting union officials to enter the construction area of the site for the purpose of union business without have first provided a notice of entry, he would have reported the matter to Mr Alarcon, the Hindmarsh SA Construction Operations Manager, and would have counselled the safety officers about Hindmarsh's expectations.

119    Thus, Mr Staltari drew a distinction between union officials being permitted to come to the site office for the purpose of speaking with management personnel, on the one hand, and going on to the construction area of the site, on the other. He said that he had authorised the former occurring without prior notice, but not the latter. He expected that a notice of entry would be provided in respect of entries on to the construction area as well as compliance with the other aspects of the FW Act concerning entry. When a union official was on site and speaking to a member of management, that member could invite the union official into the construction area but would escort them. He was unaware that safety officers such as Mr Dench, Mr Mitchell or Mr Neale had escorted union officials on to the site but was clear that that should not have occurred if the union official was intending to carry out "union business". He was not aware that it had occurred.

120    I considered Mr Staltari to be a reliable witness. However, his approach did allow some grey areas to exist as he acknowledged that he may not have made explicit to union officials or to safety officers the distinction which he drew between the site offices, including the workers' lunchrooms, on the one hand, and the construction area of the site, on the other. He also accepted that a union official coming to the site office to speak to a member of management could, lawfully, go to the lunchrooms located immediately under the SAHMRI site office for the purpose of conducting union business. Thus, the boundary lines between the different kinds of entries contemplated by Mr Staltari may not always have been understood clearly by those responsible for their implementation.

121    Mr Bickerdike's evidence about the practice was to similar effect. He considered that union officials wishing to go on to the construction area of the site for union business had to provide notices of entry but that such notices were not necessary if the official was coming to talk to management. Mr Bickerdike said, in addition, that he had endeavoured in staff meetings to make the responsibilities of safety officers with respect to union entries on the site clear. In support of the contention that safety officers had understood that position, Mr Bickerdike referred to processes of audit carried out by the Fair Work Commission. The evidence regarding these audits was limited and did not really go beyond indicating that their purpose was a check on whether SAHMRI was "a federally code compliant project".

122    Mr Bickerdike also said that he had not been aware in 2013 of any practice by which union officials had been permitted to enter the construction area without having provided a notice of entry in accordance with s 487. He said, and I accept, that as Senior Project Manager, he had not authorised any standing invitation to CFMEU officials, and that no one else had had the authority to do so.

123    The respondents led evidence which, to an extent, showed that the position may have been different from that understood by Mr Staltari and Mr Bickerdike.

124    Mr Dench was until December 2011 employed by Hindmarsh as a Safety Officer at the SAHMRI site. In the affidavit containing his evidence in chief, Mr Dench deposed that there had been occasions when Mr Staltari had not required CFMEU officials to provide notices of entry, and that that practice had continued after Mr Bickerdike became the Senior Project Manager. Mr Dench's oral evidence indicated that he may not have been alert when working on the SAHMRI site to the distinction between attendance at the site office area, on the one hand, and attendance on the construction area of the site, on the other.

125    However, Mr Dench's evidence did not support the proposition that Mr Bickerdike had either allowed, or at least not objected to, CFMEU officials entering the construction area without previously having provided a notice of entry. When asked to identify an occasion when this may have occurred, Mr Dench said only that Mr Bickerdike had said, when commencing in the position of Senior Project Manager, that he wished to develop a good relationship with the CFMEU. He also said that he could not recall any specific occasion when Mr Bickerdike had been "fine" with CFMEU officials coming on to the site without having provided a notice of entry.

126    Mr Dench drew attention however, to the monthly SQE Reports provided to senior management, including Mr Bickerdike, which, amongst other things, reported on the number of visits by union officials and the number of notices of entry which had been received. Mr Dench said that it was often the case that there were discrepancies between the number of attendances, on the one hand, and the number of notices on the other. Sometimes there were more attendances than notices, and sometimes more notices than attendances. The effect of his evidence was that senior management, such as Mr Bickerdike, should have been able to see that in some months there were more attendances than notices and thus have been aware that union officials must have been attending without providing prior notice.

127    Mr Dench acknowledged, however, that it would not have been apparent to management in such circumstances whether the union official had attended only the site office. That is to say, it would not have apparent that union officials were entering the construction area without having provided a notice of entry.

128    Mr Dench said that Mr Staltari had not, in his discussions with him, drawn a distinction between the site office and lunchroom area, on the one hand, and the construction area, on the other; that there had been a "few times" on which he had accompanied CFMEU officials into the construction area even though they had not provided a notice of entry; that he had regarded it as being for senior management to decide whether that was permissible; and that he had never been counselled on the topic. In cross-examination however, Mr Dench said that, on each occasion he had accompanied CFMEU officials into the construction area, he had received approval from senior management to do so, and that he had not regarded himself as free to take a union official in to the construction area of his own volition, and without reference to senior management.

129    Mr Mitchell said that that were occasions when CFMEU officials, after coming to the site office, had gone in to the construction area, sometimes accompanied by a Hindmarsh Manager, such as Mr McLeavey, and sometimes unaccompanied. When the latter occurred, he had understood that it was with the general approval of Mr Staltari, and not that Mr Staltari had granted approval for that particular entry. He said that these arrangements continued after Mr Bickerdike commenced as Senior Project Manager, although the position changed over time as Mr Bickerdike's relationship with some CFMEU officials "was not as positive" as that of Mr Staltari. This was the "change of approach" to which Mr Mitchell had referred in [16] of his affidavit.

130    Mr Mitchell also said that, after the attendances of CFMEU officials, he had reported their presence to Mr Bickerdike, generally telling him that there was "no negativity" associated with their visits. Mr Bickerdike had not on any of those occasions raised the question of notices of entry with him.

131    However, as noted earlier, Mr Mitchell agreed that Mr Bickerdike had told him that the CFMEU officials should provide notices of entry. He had responded by telling Mr Bickerdike that he did not understand it to be part of his responsibilities to enforce a requirement for notices of entry. Mr Mitchell went further and said that he had deliberately shown no interest in whether a union official had provided a notice of entry because it was not part of his responsibilities. In addition, he said that he had told union officials that Hindmarsh would most likely require a notice of entry but that he (Mr Mitchell) would not be enforcing it.

132    In his cross-examination, Mr Mitchell said that "latterly" in the period 2011 to 2013, he had been told by Mr Bickerdike that union officials had to provide notices of entry to go on to site to conduct union business. By the term "latterly", I understood Mr Mitchell to be referring at least to the year 2013 and, in any event, to the period after March 2013 when Mr Kirner had first come to the SAHMRI site.

133    In my opinion, the evidence just summarised indicates that there had been a limited form of standing invitation commencing during the time Mr Staltari held the position of Senior Project Manager. That standing invitation was for union officials to come, without having provided a prior notice, to the site office and then, only at the further invitation of the member of Hindmarsh's senior management, to go, accompanied by a Hindmarsh employee, into the construction area. The official could, however, also go into the lunchroom area because that did not form part of the construction area.

134    The distinction between these areas may not have been articulated clearly but generally was understood by Hindmarsh's own safety officers. That explains the evidence that they would not themselves authorise union officials to go into the construction area. There may well have been occasions when, even though not authorised by senior management and not accompanied by a member of management, union officials did go into the construction area. The safety officials did not act to prevent this because they did not regard it as part of their role to police compliance with the provision of notices of entry. There may therefore have been occasions when union officials were able to "get away" with entering the construction area without having provided notices of entry, even though they knew that it was not authorised. This is a possible explanation for the occasions to which Mr Kirner referred when he had entered the site without having provided a notice of entry. He was able to "get away with it" because those who were aware of his presence, like Mr Mitchell, were not enforcing the requirement that he not enter the construction area without providing a proper notice of entry.

135    I accept the evidence of Mr Staltari and Mr Bickerdike to the effect that they were unaware that this was occurring. It assists in understanding Mr Bickerdike's reaction of 22 November 2013 when he was informed of Mr Kirner's presence in the construction area. Knowing that it was unauthorised, he went immediately to confront him about his entry.

Conclusion on the standing invitation

136    As previously noted, Mr Kirner abandoned reliance on the form of standing invitation pleaded by Mr Stephenson. For the reasons previously given, I am satisfied that Hindmarsh had not issued a standing invitation of the kind pleaded by Mr Kirner.

137    I am also satisfied that Mr Kirner did not have an understanding that he had the benefit of such a standing invitation.

An invitation by Ausrise?

138    Mr Kirner claimed that, in addition to the standing invitation, he had been invited by one of Hindmarsh's subcontractors, Ausrise Aluminium Pty Ltd (Ausrise) to attend the site on 22 November 2013. His pleaded case was that the invitation had been issued by Mr White, a Director of Ausrise, and Mr Svanberg, an Ausrise Site Supervisor, at a meeting at the CFMEU office on 31 October 2013 (or 23 October 2013) in which both he and Mr Roberts of the CFMEU had participated. Mr Kirner pleaded that Mr White and Mr Svanberg had invited him to attend the site to conduct a ballot of Ausrise employees on a proposed enterprise bargaining agreement. Mr Kirner had agreed to conduct that ballot, and this was one of the purposes for his attendance on 22 November.

139    The issue is whether the Director has shown that, despite any invitation from Ausrise, Mr Kirner was not entitled to enter the site for the purposes of the EBA ballot without providing a notice of entry and otherwise complying with the FW Act.

140    Mr Kirner's evidence about the "invitation" from Ausrise was rather limited. In the affidavit containing his evidence in chief, Mr Kirner referred to his negotiation of the EBA with Ausrise, to meeting Mr White and Mr Svanberg at the CFMEU office, and to reaching an in principle agreement about the new EBA. He then deposed:

As part of those discussions, Ausrise made clear that they wanted me to attend at the SAHMRI site to assist in the vote that had to held.

This was said to constitute the invitation from Ausrise on which Mr Kirner relied.

141    Counsel for the respondents submitted that, subject only to the ability of Hindmarsh to countermand any invitation, it had been open to Ausrise to issue an invitation to Mr Kirner to attend the SAHMRI site for the ballot which had the effect of entitling him to enter the site for that purpose.

142    Counsel did not point to any material to support this submission. The respondents did not, for example, adduce evidence of the terms of the contractual relationship between Hindmarsh, on the one hand, and Ausrise, on the other. Ausrise was in fact a subcontractor to one of Hindmarsh's subcontractors. Nor did counsel point to any other material indicating that Hindmarsh had permitted Ausrise to invite union officials onto the site other than in accordance with the rights of entry granted by the FW Act.

143    Counsel did adduce some evidence from Mr Staltari to the effect that Hindmarsh's contractors could invite persons onto the site to assist in the performance of their work, such as a supplier of the material being used, someone carrying out maintenance of the machinery being used, or a contractor delivering fuel. Such persons could attend at the site and, subject to making the appropriate entries in the Visitors' Book, enter without reference to Hindmarsh. It can be inferred that the contractual arrangements between Hindmarsh and its contractors contained either an express or implicit permission for entries of this kind to occur.

144    Counsel's submissions seemed to be that the entry of a union official in connection with a vote on an EBA stood in the same category of entry and, accordingly, subject to the same express or implicit permission. However, there are two pertinent distinctions. First, the attendance by a union official cannot be said to be a necessary incident of the performance of the subcontractor's work in the same way as the entry by a supplier of materials, fuel or the entry of persons to carry out repair and maintenance. Secondly, unlike the entry of suppliers of materials or fuel or those carrying out repairs or maintenance, the rights of entry by union officials are regulated.

145    I note again Mr Bickerdike had told Mr Kirner expressly that Hindmarsh was insisting on him providing a notice of entry for his attendances. There was therefore a form of countermand in place of the kind contemplated by counsel for the respondents.

146    In my opinion, this ground of defence of Mr Kirner, and counsel's submission in support of it, failed to distinguish between the explanation for Mr Kirner's attendance, on the one hand, and his entitlement to attend, on the other. The invitation extended to Mr Kirner by Ausrise did not, of itself, authorise his attendance on site if it was otherwise precluded, or subject to a limitation imposed, by the FW Act.

147    To the extent that it was necessary for the Director to establish that the invitation from Ausrise did not authorise Mr Kirner's attendance on the site without notice, the Director has discharged that burden.

Entry pursuant to Part 7 of the WHS Act?

148    In relation to the WHS Act, Mr Kirner pleaded:

(a)    the presence of the third respondent on site was pursuant to Part 7 of the [WHS Act]; or, in the alternative;

(b)    the presence of the third respondent on site was in consequence of an honest and reasonable belief held by the third respondent that the entry was authorised under Part 7 of the [WHS Act].

149    This plea related to his purpose concerning Paul, the employee of Construction Glazing.

150    The honest and reasonable belief pleaded in subpara (b), even if it existed, could not establish that Mr Kirner had a right of entry. It may however, be relevant to the propriety of his conduct and, in the event that the conduct is found to be improper, to the question of relief. Accordingly, it is necessary to consider at this stage only the claim that Mr Kirner was authorised by Pt 7 of the WHS Act to enter the SAHMRI site on 22 November.

151    Part 7 provides for rights of entry of two different kinds. These are specified in ss 117 and 121. Section 117 provides, relevantly:

117 Entry to inquire into suspected contraventions

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

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

...

There is no requirement for a notice of entry to be provided in advance of an entry pursuant to s 117(1), but s 119(1) requires the permit holder, as soon as reasonably practicable after entering a workplace pursuant to s 117, to give notice of the entry and the suspected contravention in a prescribed manner.

152    Section 121 authorises entry for different purposes. It provides (relevantly):

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

...

Entry under s 121 differs from that under s 117 in that a permit holder must, before entering the workplace, give notice of the proposed entry (s 122).

153    In the circumstances pertaining on 22 November 2013, the WHS Act did not authorise Mr Kirner's entry. Section 117 was inapplicable because Mr Kirner was not attending to enquire into a suspected contravention of the WHS Act. Instead, he was there to encourage the employees of Construction Glazing to provide assistance to their workmate and to promote awareness of the Mates In Construction program. Mr Kirner's intentions may well have been laudable but plainly he was not entering for the purpose to which s 117 refers, namely, an inquiry into a suspected contravention of the WHS Act.

154    Section 121 did not authorise Mr Kirner's entry because he had not given the notice required by s 122.

155    Mr Kirner's re-entry on to the SAHMRI site after conducting the ballot with the Ausrise workers may, accordingly, have been improper but, for the reasons already mentioned, that is not part of the claim which the Director has brought against Mr Kirner.

The elements of the s 484 purpose

156    The respondents submitted that proof of a contravention of s 500 required the Director to establish that the permit holder was exercising, or seeking to exercise, rights in accordance with Pt 3-4. This meant that, when the Director alleged, as in this case, that the right sought to be exercised was that granted by s 484, he had to establish that employees with each of the characteristics to which s 484 refers were on the site at the time of the entry. That is to say, the submission was that it is necessary for the Director to establish that, at the time of the proposed entry, there were employees performing work on the premises; that those employees were persons whose industrial interests the permit holder's union was entitled to represent; and that those employees wished to participate in the proposed discussions with the permit holder.

157    In my opinion, this submission overlooked that what is to be established, is relevantly, the permit holder's purpose in entering. The permit holder may have that purpose even if it is, as a matter of fact, incapable of being fulfilled. A permit holder may wish to enter for the s 484 purpose even though there may not, as a matter of fact, be employees on the site, or there be no employees whose industrial interests the permit holder's union is entitled to represent, or there be no employees who wish to hold discussions with the permit holder. Permit holders may, for example, be mistaken in their belief that there are employees on the site answering the relevant description. The existence of their mistake would not mean, of itself, that the permit holder could not have the relevant purpose.

158    It is also to be remembered that the second element of a s 500 contravention requires proof that the permit holder was exercising, or seeking to exercise, rights in accordance with Pt 3-4 of the FW Act. At the very least, proof that each of the elements listed in s 484 pertained at the time of the official's entry, is not required in respect of an allegation that the permit holder was seeking to exercise rights under Pt 3-4.

159    The respondents referred to John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2009] FCA 645, a decision which concerned the exercise of rights of entry in a different statutory context. Counsel referred to [36] in which Moore J had stated the necessity for the applicant, in the circumstances of that case, to prove that either the second or third respondent was a temporary organiser of the CFMEU, even though that was a matter peculiarly within the knowledge of the respondents. In my opinion, the decision in John Holland does not assist the respondents in the present case. The statutory context is different. John Holland cannot reasonably be understood as an authority bearing upon the proper construction of s 484 or, for that matter, of s 500.

160    Accordingly, I reject this aspect of the respondents' submissions.

Section 484 elements established as a matter of fact

161    If the conclusion just expressed be wrong, then I consider that the Director has, in any event, established on the evidence the matters to which s 484 refers. Mr Kirner's own evidence establishes these matters. He referred in his evidence to the Ausrise employees. In relation to the issue concerning Paul, Mr Kirner deposed to there being "a group of employees in the lunchroom who I knew were employed by Construction Glazing, a subcontractor on the site" (emphasis added). Mr Kirner went on to say that he knew that a number of these employees were members of the CFMEU.

162    The notices of entry provided by Mr Kirner in respect of his entries on 4 and 12 September and 23 and 30 October 2013 are also pertinent in this respect. In each notice, Mr Kirner certified as follows:

As the entry is authorised by s 484 of the Fair Work Act 2009 (which deals with entry to hold discussions), I declare that [the] Construction, Forestry, Mining and Energy Union, Forestry and Furnishing Products Division, under Rule 2, including but not limited to Rule 2(C)(ii), of the Rules of the Construction, Forestry, Mining and Energy Union, is entitled to represent the industrial interests of an employee or TCF outworker who performs work on the premises mentioned above.

163    Although the last of these notices preceded the entry on 22 November 2013 by some three weeks, it would not be sensible to suppose that the position then certified by Mr Kirner had changed in the interim period. That is especially so as the notice in respect of the entry on 4 September 2013 referred expressly to discussions with employees of a number of subcontractors, including Construction Glazing and Ausrise.

164    Further still, the respondents led evidence of the approval by the FWC on 13 December 2013 ([2013] FWCA 9820) of the enterprise agreement on which the Ausrise employees had voted in the ballot conducted by Mr Kirner on 22 November. The FWC approved the agreement on the application of the CFMEU, noting that it was a "bargaining representative" for the agreement. That meant that the FWC was satisfied that the CFMEU was an organisation entitled to represent the industrial interests of the employees in relation to the work to be performed under the agreement (s 176(3) of the FW Act).

165    Finally, insofar as the submission was made on behalf of the CFMEU, it is to be observed that it had implicitly admitted the presence on the SAHMRI site on 11 November 2013 of employees whose industrial interests it was entitled to represent.

166    All of this is material from which the inference can be drawn that there were employees on the SAHMRI site on 22 November 2013 whose industrial interests the CFMEU was entitled to represent.

167    The willingness of the Ausrise employees to have discussions with Mr Kirner is demonstated by their action in complying with his request that they move to the footpath of North Terrace in order that he could conduct the ballot. Mr Kirner must have wished to hold discussions with them, if only in relation to the conduct of the ballot itself. The willingness of the Construction Glazing employees to talk to Mr Kirner about Paul's circumstances is evidenced by Mr Kirner's own evidence of the conversation which he had with those employees.

168    I mention that counsel for the respondents argued, somewhat faintly, that Mr Kirner's purpose in attending to conduct the ballot was not the purpose of holding discussions with employees. I reject that submission. It is not realistic to suppose that Mr Kirner intended conducting a ballot without discussing with the employees what was involved and the merit of the proposal on which they would be voting.

169    Accordingly, even if it be necessary for the Director to establish the three characteristics of employees to which s 484 refers, he has discharged that onus.

Was Mr Kirner's conduct improper?

170    The concept of "improper conduct" for the purposes of s 500 has been discussed in the authorities. In Bragdon at [97], Flick J described "improper conduct" as being conduct which falls below that standard which can reasonably be expected of those occupying the relevant provision.

171    In CFMEU (No 2), Mansfield J said:

[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) 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].

172    Ordinary principles of judicial comity indicate that I should give effect to these authorities, unless satisfied that they are wrong. I am not so satisfied.

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

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

175    The Director relied on a number of features of Mr Kirner's conduct, in combination, as warranting the characterisation of his conduct as improper. These were his failure to provide a notice of entry pursuant to s 487, his entry on to the site without authorisation, his failure immediately to leave the site when requested to do so by Mr Bickerdike, his remaining on site for some 40 minutes, his failure to enter the time in and time out details in the Visitors' Book, and the inconvenience which he caused to Hindmarsh employees.

176    On my findings, some aspects of this conduct are not made out. Although Mr Kirner initially resisted Mr Bickerdike's request that he leave, he acceded to that request very soon after. It is true that he did not leave by the shortest and direct route. I accept however, that he moved further in to the site only in order to make his request of Mr Thornley that he inform the Ausrise employees that the ballot would be conducted on the North Terrace footpath. Mr Kirner did not remain on site for 40 minutes. It is true that he returned but, for the reasons given earlier, I do not regard his conduct in returning as part of the Director's pleaded case of improper conduct.

177    It is apparent that the interchange between Mr Bickerdike and Mr Kirner was not pleasant. On my assessment of Mr Bickerdike, I consider that it may well be the case that he spoke a little brusquely to Mr Kirner, and that Mr Kirner responded in kind. I think it likely that Mr Kirner resented being told, in front of others, to leave the site. I also think it likely that he resented Mr Bickerdike taking photographs of him and that he made that plain by raising his fist in the form of the solidarity symbol. Mr Kirner asserted himself to an extent by not leaving the site directly but by proceeding further into it, despite Mr Bickerdike's direction. I consider also that Mr Kirner was likely annoyed that he had not been able to "get away" with his entry on this occasion.

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

179    There are however, aspects of Mr Kirner's conduct which are to his credit. These include the circumstance that, when informed that Mr Bickerdike would be coming, he did wait before proceeding further in to the site and that he did, within a short time of Mr Bickerdike's request, leave the site.

Summary

180    As indicated earlier, the declarations sought by the Director concerning the contraventions of s 500 by Mr Stephenson, Mr Cartledge and the CFMEU on 11 November 2013 will be made.

181    I am satisfied that the Director has made good the claimed contraventions of s 500 on 22 November 2013 by Mr Kirner and the CFMEU. Declarations to this effect will be made. The Director is to file and serve minutes of all the declarations to be made. I will hear from the parties with respect to the consequential orders sought by the Director.

Associate:

Dated:    20 November 2015