FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2016] FCA 872

ORDERS

THE COURT ORDERS THAT:

1.    The further hearing of the application be listed at 10:15 am on 1 September 2016.

2.    On or before 17 August 2016 the applicant file and serve any affidavits and an outline of his written submissions relating to penalties and any other relief sought.

3.    On or before 30 August 2016 the respondents file and serve any affidavits and an outline of their written submissions in response to those of the applicant.

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

REASONS FOR JUDGMENT

TRACEY J:

1    The applicant, (“the Director”), brings the proceeding against three respondents: the Construction, Forestry, Mining and Energy Union (“the CFMEU”) and two individuals who were, at relevant times, organisers employed by the CFMEU, Mr Joseph Myles and Mr Drew MacDonald.

2    The Director alleges that each of the respondents has contravened provisions appearing in Part 3-4 of the Fair Work Act 2009 (Cth) (“the Act”).

3    In February 2014, Thiess Pty Ltd (“Thiess”) and Balfour Beatty Australia Pty Limited (“Balfour Beatty”) were undertaking construction works, in partnership, at Footscray Station, located in Irving Street, Footscray, Victoria, southwest of the Hopkins Street bridge overpass (“the Site”). The work was part of the Regional Rail Link Project Package C, a major infrastructure project in the State of Victoria, which involved an upgrade to Footscray Station. Mr Myles and Mr MacDonald are alleged to have contravened ss 499 and 500 of the Act by their conduct at the Site on 27 February 2014. The CFMEU was said to be liable for all contraventions of its two officials by operation of s 793 of the Act.

THE EVIDENCE

4    The Director called five witnesses. Those witnesses and the positions occupied by them at relevant times were:

    Mr Simon Barton, who was a site manager/superintendent employed by Thiess;

    Mr Jay Currie, who was, a foreman employed by Thiess;

    Mr Jai Bouten, who was a general foreman employed by Balfour Beatty;

    Mr James Andrews, who was an industrial relations advisor employed by Thiess; and

    Mr Graham Littlejohn, a Fair Work Building Industry Inspector.

5    Each of these witnesses was cross-examined.

6    Much of the impugned conduct was filmed by Mr Andrews. The films were tendered in evidence. The visual images were accompanied by a sound track. As a result the Court had before it a record of relevant events and what had been said by those involved.

7    Mr Myles filed an outline of evidence on 9 November 2015. He gave evidence in the proceeding and was cross-examined. Mr MacDonald was not called. No other witnesses were called to give evidence on behalf of the respondents.

8    In his amended defence Mr MacDonald claimed privilege against exposure to civil penalties.

EVENTS OF 27 FEBRUARY 2014

9    In February 2014, the track formation for the new Regional Rail Link was being undertaken at Footscray Station. Ramps and platforms were being constructed. A concrete pour had been scheduled for 27 February 2014 for Ramp 2.

10    On 26 February 2014, Mr Myles and Mr MacDonald had attended the Site and conducted an occupational health and safety inspection. Mr Myles raised with Mr Barton a number of safety concerns, including correct lifting techniques, access and egress issues, signage and problems relating to scaffolding. Some matters were “closed out” while others remained unresolved. A WorkSafe inspector was scheduled to attend the following morning.

11    On 27 February 2014 at approximately 9:00 am, Mr Myles returned to the Site. Mr Myles met Mr Barton to discuss some of the safety concerns which had been raised on the previous day.

12    At approximately 11:00 am, Mr Myles left the Site and returned an hour or so later in the company of Mr MacDonald.

Mr Myles and Mr MacDonald in the delineated area

13    Mr Myles and Mr MacDonald stood at the end of McNab Avenue on an embankment near Ramp 3. The embankment was located above the level on which the track formation of the Regional Rail Link was being completed.

14    Mr Currie approached Mr Myles and Mr MacDonald. They were later joined by Mr Bouten. Mr Myles produced a notice of suspected contravention relating to “manual handling” and handed it to Mr Bouten. At about the same time a concrete truck drove down to the track formation area. Mr Myles, followed shortly afterwards by Mr MacDonald, climbed down the embankment to the track formation area and approached the concrete truck.

15    Initially there was a dispute about the route taken by the two officials when they moved to the track formation area. Mr Currie gave evidence that, after providing the notice, Mr Myles walked down a pathway which ran from the area where Mr Myles and Mr MacDonald were standing on McNab Avenue to the track formation area. When Mr Currie saw him walking down the pathway he called out loudly to him and said: “You can’t be walking through there.” Mr Myles continued to walk down the pathway and was followed by Mr MacDonald.

16    Mr Currie said that the pathway had been closed off because it had been deemed unsafe due to its steep incline and the presence on it of uncompacted rock. Bollards and tiger tails barricaded the top of the track. Under cross-examination, Mr Bouten admitted that he and others had used the pathway on other earlier days and that they had not experienced any difficulties when walking down the path. Mr Currie conceded that he did not see Mr Myles encounter problems when he used the pathway.

17    Mr Myles first claimed that he had reached the track formation area using another pathway, which was not obstructed by bollards and tiger tails. When the evidence of Mr Bouten and Mr Currie about the path that Mr Myles took was put to him, he conceded that, “It’s possible I went the other way [being the way described by Mr Currie and Mr Bouten]…I don’t distinctly remember, but having a look at these photographs and some of the others, it could’ve been that I went that way.” He also admitted that he heard personnel from either Thiess or Balfour Beatty call out to him words to the effect of: “You can’t go down there” or “Don’t go that way.” Mr Myles originally claimed not to recall the pathway being blocked off by bollards and tiger tails. However, he acknowledged later that there was tiger tail in the area and that, when he walked down to the track formation area, “they tried to sort of block the way with a short bit of tiger tail with some bollards, basically just dragging it over.” He said that he went around the bollard and kept walking down to the track formation area.

18    I accept the evidence of Mr Currie. Mr Myles and Mr MacDonald proceeded along the pathway between the site entrance on McNab Avenue and the track formation area. That pathway led down an embankment. It was obstructed by bollards and tiger tails. Despite shouted warnings from Mr Currie (which were heard by Messrs Myles and MacDonald) they passed around or over the obstructions and proceeded down the embankment to the track formation area.

Mr Myles’s stopping of work to address workers

19    It was approximately 2:15 pm, when Mr Myles and Mr MacDonald entered the track formation area. A concrete pump was operating and the contents of a second concrete truck were being discharged into the hopper attached to the pump. Mr Myles spoke to the concrete pump operator who was employed by Rapidcrete Concrete Pumping. Mr Myles said that he asked the concrete pump operator if he had had any manual handling training. There was a discussion about paperwork relating to compliance with manual handling regulations. After Mr Myles spoke to the concrete pump operator the pumping ceased.

20    Mr Myles called workers who were pouring concrete into the formwork of Ramp 2 to come down so that he could speak to them. The workers were employed by Summit Concrete and Lime Contracting. Mr Myles addressed the workers about manual handling and asked them what training they had completed. There was conflicting evidence about the length of the discussion. Mr Bouten said that it continued for upwards of five minutes. Mr Barton and Mr Myles said it lasted 10 minutes. Mr Currie said that it went on for longer than 10 minutes and Mr Andrews said that it had taken approximately 15 minutes. Nothing turns on the precise length of the meeting. The preponderance of evidence supports a finding that it continued for approximately 10 minutes. Mr Barton gave evidence that, during this period, he “sort of respected his [Mr Myles’s] right to consult with the workers so we gave him some space so it didn’t appear that we were trying to listen.”

21    While work was suspended Mr Myles asked for proof about the manner in which Thiess and Balfour Beatty were dealing with manual handling and evidence of compliance with the relevant regulations. Mr Myles claimed that the regulations required identification of risks for manual tasks performed on a site and, where identified risks could not be eliminated, specific training to ensure those tasks were performed safely. He was provided with a Job Safety and Environment Analysis (“JSEA”). A JSEA recorded the working environment and identified hazards which, it was anticipated, would confront workers who were carrying out specific tasks on the Site. JSEAs were completed prior to the works commencing. The JSEA provided to Mr Myles contained an analysis of the work involved in the concrete pour which was scheduled for 27 February 2014 and included controls to minimise risks to musculoskeletal injuries. Mr Myles claimed that the JSEA was inadequate as it did not deal with all manual tasks.

22    After the meeting had gone on for about 10 minutes the managers intervened. The following exchanges occurred:

“Mr Bouten:    The consultation’s over, we deem or we believe this to be unlawful industrial action.

Mr Myles:        Yeah, we’re here for safety mate.

Mr Bouten:    No, well the consultations over. We need to go back to pour, to the pour.

Mr Myles:        Can you satisfy us that you’ve met the regs of 2007.

Mr Bouten:        We’ve already for (sic) through this Joe.

Mr Myles:        No you haven’t.

Mr Bouten:        We’ve deemed this unlawful.

Mr MacDonald:    It’s all about safety.

…

Mr Andrews:    We’re directing the guys to go back and continue their work. If they refuse we’re going to call it unlawful industrial action.

Mr Myles:    You can call it whatever you want.

Mr Andrews:    So it’s up to you guys whether you want to go back to work or not but that’s where we are.

Mr Bouten:    They can only advise you.

Mr MacDonald:    There’s your response, there’s your response.

Mr Andrews:    All right so.

Mr Myles:    We’re their organisers, when we’re satisfied they’ll be satisfied.

Mr Bouten:    Yeah. Well you’re risking your members.

Mr Myles:    Whatever, just make them safe can ya, just show us the paperwork we requested.

Mr Andrews:    You’ve got it.

Mr Bouten:    We’ve already showed you the paperwork.

Mr Myles:    No you haven’t.

Mr Andrews:    Joe, Joe you don’t have the power to stop to (sic) job in order to see it.

Mr Myles:    I’m advising.

Mr MacDonald:    We just want them safe.

Mr Andrews:    We’ll take you over to the sheds and you can see the paperwork, your refusing to come and go where we’re telling you.

…

Mr Bouten:    We’ve already mentioned safe spine. The boys are all involved in that every morning.

…

Mr Myles:    No James [Andrews] I’ve told you that I’m here under my workplace health and safety ARREO [Authorised Representative of the Registered Employee Organisation] permit, we’ve issued you that permit we’ve given you an ARREO, we’ve told you why we’re here. We’re not satisfied you’ve met the obligations under the regulations can you please satisfy us.

Mr Bouten:    We’re asking you to come back to the office where all that paperwork is.

Mr Myles:    I’m happy to see it here mate.”

23    Shortly after this interaction, the workers returned to work.

24    “Safe Spine” was conducted every morning at 7:00 am. It involved several back exercises to warm up and prepare the workers for the physical activities required on the Site each day.

25    Mr Barton also pointed out, in his evidence, that, at the beginning of the Regional Rail Link Project, all workers were required to obtain a card called a “rail industry card” before they were able to perform work for rail operators. In order to obtain the card the workers needed to undertake certain rail industry worker training. A component of this training was manual handling.

Mr MacDonald’s obstruction of the third concrete truck

26    Trucks delivering concrete for the ramp drove down a marked “roadway” and then backed up to the hopper which was attached to the pump. Shortly after 3:00 pm Mr MacDonald was standing on the part of the roadway which ran along the track bed when a third concrete truck arrived. Mr MacDonald had his back to the truck. The truck was unable to proceed because of his presence on the roadway.

27    Mr Barton, Mr Bouten and Mr Currie yelled at Mr MacDonald to get out of the way and move. Mr Andrews said to him:

“Get out of the way, Drew. You’re hindering and obstructing. Get out of the way. Get out of the way. Get out of the way, Drew. Get out of the way, Drew. Get out of the way.”

28    Mr Andrews also told Mr MacDonald that he was “a disgrace” and said “I don’t know how you get up in the morning.”

29    Eventually Mr MacDonald moved out of the way. The third concrete truck continued along the “roadway” and backed towards the concrete pump. Mr Barton gave evidence that Mr MacDonald impeded the progress of the truck for three to four minutes. In cross-examination, he conceded that it might objectively have been less than a minute. Mr Andrews said it was delayed for no more than two minutes.

Mr Myles’s obstruction of the third concrete truck

30    At about the same time Mr Myles presented Mr Barton with a further notice of suspected contravention relating to the concrete pump. Mr Myles approached the pump operator and asked him to produce documents in relation to the maintenance of the concrete pump. The pump operator complied with Mr Myles’s request and produced the relevant documents from his cabin. Mr Barton said that Mr Myles had told the pump operator to stop pumping the concrete. Mr Myles denied giving this instruction and said that it was the pump operator’s call whether or not to operate the pump until he (Mr Myles) had given him the “all clear”. Mr Myles said that the pump operator had indicated to him that he was not sure if all of his paperwork was in order. Mr Myles claimed that he “was a bit worried, because [pump operators] are normally pretty protective of their pumps.”

31    Mr Myles took the documents and stood between the third concrete truck and the hopper. He there inspected the documents. The chute of the concrete truck was hovering in close proximity to the hopper. Mr Myles stood in this position for approximately 10 to 15 minutes. During this time Mr Barton, Mr Currie, Mr Bouten and Mr Andrews each asked Mr Myles to move. Mr Bouten asked Mr Myles to have a look at the paperwork in the office. Mr Andrews said to Mr Myles words to the effect of, “Move out of the way…You’re hindering and obstructing us Joe, hindering and obstructing.” Mr Myles did not move until after the truck had driven away.

32    There was conflict in the evidence about whether the third concrete truck had started to discharge its contents when Mr Myles positioned himself between the truck and the hopper. Mr Myles claimed that the third concrete truck backed onto him as he was reviewing the pump operator’s maintenance records. Mr Currie also said that the third concrete truck backed towards Mr Myles while he was standing next to the hopper reviewing the records. Mr Barton recalled that the third concrete truck had started to discharge its load when Mr Myles moved himself in between the truck and the hopper. Mr Andrews had a similar recollection. All agreed that, once Mr Myles took up position between the truck and the hopper, discharging of concrete ceased. Mr Myles offered no explanation as to why he had chosen to stand behind the truck while reading the documents. Had the discharge continued Mr Myles’s personal safety would have been at risk. The video footage discloses that, had the truck reversed further towards the pump, either the rear of the truck or the chute was likely to have struck Mr Myles. His presence impeded the planned pour. I am satisfied that he deliberately put himself in a position which prevented the discharge of concrete from the truck into the hopper.

33    The third concrete truck was not able to discharge all or most of its load because the concrete had “cooked”: the concrete had started to harden in the truck and could not thereafter be discharged. It drove off. Mr Myles admitted that he knew that concrete has a limited useful lifespan.

Mr Myles’s obstruction of the fourth concrete truck

34    After the third concrete truck left, Mr Myles moved to inspect the other side of the concrete pump. A short time later, a fourth concrete truck arrived. The truck backed up onto the hopper. Mr Myles repositioned himself between the truck and the hopper and continued to read the documents. Mr Myles stood in this position for approximately 15 minutes. The pump operator ceased to operate the pump while Mr Myles was standing in between the truck and the hopper.

35    Mr Barton, Mr Bouten, Mr Currie and Mr Andrews again asked Mr Myles to move out of the way. They had the following conversation:

“Mr Andrews:    I’m asking you again can you please move out of the way of the concrete truck.

Mr Myles:    I’m here under my ARREO.

Mr Andrews:    You’re hindering and obstructing us from working on site. We’ve asked you to move out of the way of the truck, and we’ve also asked you to leave site. Can you please move. No.

Mr Barton:    Come on Joe, can you move out of the way mate.

Mr Andrews:    Joe you’re in the way of the truck. He needs to back, back into this concrete pump.

Mr Barton:    Come on Joe, get out of the way buddy.

Mr Andrews:    You’re hindering and obstructing us Joe. Which is obviously a breach of your right of entry powers.”

36    The fourth truck could not safely discharge its contents and left the Site. Mr Myles remained where he had been standing until the truck left.

37    Some time after the fourth truck left the Site, it was necessary to “blow out” the pump to prevent concrete from hardening inside. The concrete pour for the day was called off.

LEGISLATIVE PROVISIONS

38    Section 499 of the Act provides that:

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

39    Section 500 of the Act provides that:

“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.”

40    A “State or Territory OHS right” is a right conferred by a State or Territory OHS law: see s 494(2). The Occupational Health and Safety Act 2004 (Vic) (“the OH&S Act”) is a prescribed State OHS law: see s 494(3) and the Fair Work Regulations 2009 (Cth), reg 3.25.

41    Section 90 of the OH&S Act relevantly provides that:

“(1)    Despite anything else in this Part, an authorised representative of a registered employee organisation is not entitled to exercise a power under this Part in respect of—

(a)    …

(b)    any part of a place to which access is limited to any extent, by or under another Act, to particular persons or circumstances the effect of which is that the authorised representative is precluded from entering the part of the place.

(2)    Despite anything else in this Part but subject to subsection (3), an authorised representative of a registered employee organisation is not entitled to exercise a power under this Part in respect of a place, except with the consent of the employer who has, or a person who on behalf of the employer has, the management and control of the work, if the exercise of that power would cause any work at the place to cease.

(3)    Nothing in subsection (2) prevents an authorised representative who reasonably believes that there is an immediate and significant risk of serious injury or death to one or more employees from warning the employee or employees of that risk.

(4)    To avoid doubt, nothing in subsection (2) prevents an authorised representative from consulting with an employee during his or her meal-time or other breaks.”

CONSIDERATION

42    The Director alleged a series of contraventions of ss 499 and 500 of the Act by the respondents. Having regard to admissions made by them the following elements of the alleged contraventions of s 499 remained in dispute in respect of each allegation:

    whether the particular respondent failed to comply with a request;

    whether the request was a reasonable request;

    whether the request was a request to comply with an occupational health and safety requirement; and

    whether the occupational health and safety requirement applied to the premises.

43    The remaining issues in dispute in respect of each of the alleged contraventions of s 500 of the Act were:

    whether the respondents intentionally hindered or obstructed a person; or

    whether the respondents otherwise acted in an improper manner.

The case law

44    The precursor to s 500 was found in s 767 of the Workplace Relations Act 1996 (Cth). Relevantly it provided that a permit holder who was exercising or seeking to exercise rights under an occupational health and safety law “must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.”

45    In Setka v Gregor (No 2) (2011) 195 FCR 203 the Full Court held (at 209) that the relevant part of s 767(1) covered both obstruction and hindering and other improper acts.

46    Section 500 of the Act came into force in 2009. The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (which became the Act) read, at [1994]:

“Acting in an improper manner is intended to cover a wider range of conduct. It includes actions that are inconsistent with the requirements of the right of entry provisions, such as deliberately engaging in conduct that the permit holder knows is not permitted.”

47    In Director of the Fair Work Building Industry Inspectorate v Bragdon (2015) 147 ALD 373 Flick J dealt with an allegation that two union officials had contravened s 500 of the Act by telling workers who were engaged in pouring concrete to get off the deck and that they (the officials) were “stopping the pour”. His Honour found this conduct to constitute “hindering” of the work being undertaken at the site and to be “improper conduct”. In dealing with the phrase “intentionally hinder or obstruct any person” his Honour adhered to some observations which he had earlier made in Darlaston v Parker (2010) 189 FCR 1 at 17 where he had said that:

“[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).”

48    His Honour then turned to the phrase “act[ing] in an improper manner”. Referring to the decisions in R v Byrnes (1995) 183 CLR 501 at 514-5, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106] and [107] and Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 at [171] (Mansfield J), he held that “‘improper conduct’ is conduct which falls below that standard which can reasonably be expected of those who occupy positions of responsibility.” He found that the Union officials’ conduct was improper for the purposes of s 500.

49    It is now well established that it is not necessary for the Director, in a proceeding under s 500, to prove a subjective intention on the part of the actors to conduct themselves in an improper manner: see Bragdon at 394-5, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106] (Mansfield J), Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [24] (White J). Were it otherwise, as the Full Court observed in Setka v Gregor (No 2) (at 209), a person who had no understanding of how to conduct him or herself in society could never be held to contravene the provision. An objective assessment of the relevant behaviour is required.

The “delineated area” contraventions

The alleged contravention by Mr Myles of s 499

50    The Director alleged that Mr Myles contravened s 499 of the Act by failing to comply with Mr Currie’s reasonable request to observe an occupational health and safety requirement by proceeding down the path to the area where the track was to be laid.

51    The Director submitted that the barricading of the area with tiger tails and bollards was a well-known means of communicating an occupational health and safety requirement not to enter a particular area. He asserted that the requirement was reasonable having regard to the evidence of Mr Currie that the path was too steep and the rock on the embankment was not compacted.

52    The respondents submitted that Mr Currie’s request was not in substance or form a request to comply with an occupational health and safety requirement. They asserted that the presence of tiger tails did not of itself demonstrate an area marked off for occupational health and safety purposes. They further contended that Mr Currie’s request did not specify any occupational health and safety concern and that any apparent or visible occupational health and safety risk occasioned by Mr Myles’s use of the path was low. The respondents argued that, for the same reasons, the request was not reasonable. They contended that, had the management representatives considered that Mr Myles had breached a request relating to occupational health and safety, he would have been asked to leave the Site. This had not occurred.

53    The interaction between Mr Myles and Mr Currie about Mr Myles’s use of the pathway occurred on a working building site on which, as Mr Myles repeatedly asserted on the relevant afternoon, the health and safety of those present was a high priority. When Mr Currie saw Mr Myles proceed down a path which had been blocked using bollards and tiger tails Mr Currie called out to Mr Myles. He did not use the formal language of request. He said “you can’t be walking through there”. Implicit in these words of warning was a request that Mr Myles proceed no further. Despite hearing Mr Currie’s words Mr Myles deliberately avoided the barricades and proceeded down the embankment to the track formation area. In doing so, he came to no harm.

54    It does not, however, follow that Mr Currie’s request did not relate to health and safety or that it was not reasonable. It was not disputed that there was loose rock along the pathway and that the descent from the upper level on which Mr Myles was standing when the warning was given to the track area was steep. The possibility of a person slipping or falling existed. This may have led to the person sustaining an injury.

55    The alternative route, which Mr Myles originally said that he had traversed, provided a more gradual descent without the hazards of the path he took.

56    In the circumstances I consider that Mr Currie’s words constituted a reasonable request that Mr Myles not proceed down the path. That request was made in order to protect Mr Myles’s health and safety. He heard the words and chose to ignore them.

57    I have not overlooked the fact that, on other earlier days, others, including Mr Bouten, had traversed the path without difficulty. This does not undermine the Director’s claims that the closure of the path was a reasonable occupational health and safety measure which applied on the Site. Whilst there was no evidence that others had suffered any harm when using the path prior to its closure, earlier usage may well have alerted those involved to the potential hazards which led to the closing off of access.

58    In acting as he did, Mr Myles contravened s 499 of the Act.

The alleged contravention of s 500 by Mr Myles and Mr MacDonald

59    The Director further alleged that, in failing to comply with Mr Currie’s request to leave the delineated area, Mr Myles had acted in “an improper manner”.

60    The Director’s case was that Mr Myles’s conduct was “improper” because, as a union official whose responsibilities included protecting the safety of its members, he ought to have set a positive example by complying with the safety measures which were observed at the Site. His failure to do so meant that his conduct had fallen below the standard which reasonably could be expected of a union official conducting an investigation of safety breaches on a construction site.

61    The Director also asserted that the contravention was improper because it involved a contravention of s 499 of the Act.

62    Mr MacDonald was said to have contravened s 500 of the Act by following Mr Myles along the path. The Director contended that, although Mr Currie’s words of warning were not directed at Mr MacDonald, they were made in his presence and within his hearing and he ought to have understood that Mr Currie was making a request in relation to an occupational health and safety requirement.

63    The respondents relied on the same matters by way of defences in respect of Mr MacDonald as they had done in relation to the alleged contravention by Mr Myles: see above at [52].

64    The respondents denied that the actions of the two officials could constitute “improper conduct” within the meaning of s 500 of the Act. They contended that s 500 should not be read as comprehending conduct which breached s 499 of the Act. This interpretation was said to be consistent with the object of Part 3-4, which is expressed in s 480 of the Act to be:

“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 [relevant legislation and regulations];

(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.”

65    The respondents contended that, having regard to this object, the phrase “act in an improper manner” was intended only to apply to conduct that upset the balance of competing interests and caused employers “undue inconvenience”.

66    They also sought to advance the submission, which had been rejected in Setka v Gregor (No 2), that the words “act in an improper manner” must be read ejusdem generis with the words “hinder or obstruct”.

67    They contended, in reliance on Darlaston v Parker, in the passage set out above at [47], that the words “intentionally hinder or obstruct” are intended to cover “an ‘appreciable’ obstruction or interference” and not “a trivial act”. They argued that a similar approach should be taken towards the interpretation of “otherwise act in an improper manner”. That is, that the phrase is not intended to cover conduct which is less egregious than a “hindrance” or “obstruction”. The use of the word “otherwise”, they submitted, suggests that hindering and obstructing are two kinds of improper conduct and that “act in an improper manner” is intended to catch other kinds of improper conduct of equivalent or greater seriousness.

68    It was further contended that, having regard to the civil penalty regime, s 500 must be intended to only capture conduct that is not proscribed by other provisions in Part 3-4 of the Act and which upsets the balance provided for in s 480 in an “appreciable” manner.

69    The construction of s 500 is to be undertaken having regard to its text in the context of the Act as a whole and its general purpose: see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-7. The section prohibits permit holders from intentionally hindering or obstructing any person or otherwise acting in an improper manner when exercising rights conferred on them under Part 3-4 of the Act. The terms of the proscription are clear. They are one of the means adopted by the legislature in order to advance the object contained in s 480. There is no justification for reading down the plain words of the section in the ways proposed by the respondents. There is no reason why the same conduct might not be found to give rise to a contravention of both ss 499 and 500. While such an overlap may have implications for the fixing of appropriate pecuniary penalties, it has no bearing on the question of whether or not s 500 has been contravened.

70    I am bound by the Full Court’s decision in Setka v Gregor (No 2) to reject the respondent’s submission that the reach of the phrase “act in an improper manner” is to be confined by the words which immediately precede it.

71    I accept the Director’s submission that both Mr Myles and Mr MacDonald acted in an improper manner by proceeding along the barricaded pathway after Mr Currie had told them that they should not do so. The conduct of both men, in ignoring Mr Currie’s admonition, was conduct which fell below the requisite standard which applied to them as union officials who had repeatedly emphasised that they were on the Site to ensure that appropriate health and safety standards were being observed.

Mr Myles’s alleged stopping of work to address workers

72    The Director contended that Mr Myles’s conduct in calling the workers down from the formwork and addressing them caused work to cease. In so acting, he had contravened s 90(2) of the OH&S Act which provides that an authorised representative is not entitled to exercise a power in respect of a place if the exercise of that power would cause any work at the place to cease, unless the consent of the employer is first obtained or the representative reasonably believes that there is an immediate and significant risk of serious injury or death to an employee. The Director asserted that there was no evidence that Mr Myles held any belief that there was an immediate and significant risk of serious injury or death to an employee. In the alternative, the Director submitted that, if such a belief was held by Mr Myles, it was not reasonable. Either way, it was argued, Mr Myles had contravened s 500 of the Act by acting in an improper manner

73    The respondents countered that there was no evidence that Mr Myles had given any direction to the workers to cease work. His subsequent conversation with them was, it was said, in any event, lawful because s 90(3) of the OH&S Act entitled him to intervene, there being a perceived and immediate risk of serious injury to the workers. It was also contended that he had acted with the consent of site management.

74    When Mr Myles and Mr MacDonald arrived at the base of what was to be a ramp to the platform, a concrete pour was in progress. Workers were performing their duties on and near the formwork for the ramp.

75    Mr Myles called out to the workers who were standing on the scaffold and pouring concrete. He asked them to come down so that he could speak to them. The workers complied with Mr Myles’s request and walked down the scaffold. They passed across a small roadway to meet Mr Myles and Mr MacDonald near the concrete pump.

76    Mr Myles convened the meeting. He was, for practical purposes, in control of the meeting. When challenged by managers his response was that “when we’re [Mr Myles and Mr MacDonald] satisfied [about alleged safety concerns] they’ll [the workers] be satisfied”. I readily infer that Mr Myles had procured the cessation of work and that he proposed to persist in disrupting work until he declared himself satisfied about the contrived safety concerns.

77    Work ceased for about 10 minutes. The workers only resumed their duties after managers had intervened and advised that the cessation of work was unlawful. A contravention of s 90(2) of the OH&S Act thereby occurred.

78    Mr Myles’s actions were not justified by any concern that there existed an immediate and significant risk of serious injury to any of the workers. In his evidence he went no further than saying that he had asked Messrs Bouten and Currie how they had “complied with the regulations in regard to manual handling with the tasks that [were] being carried out”, that they hadn’t dealt with the relevant issues, that he had not seen the JSEA before he spoke to the workers and that he held the belief that the training provided to them was inadequate. Section 90(3) of the OH&S Act did not provide Mr Myles with any justification to act as he did.

79    The claim that Mr Myles’ actions had been sanctioned by management was said to be supported by the failure of the managers to intervene until the meeting had gone on for about 10 minutes. Mr Barton explained this forbearance. He said that he had seen Mr Myles addressing the workers and had taken the view that Mr Myles had a right to consult with them and so had provided Mr Myles with “some space so it didn’t appear that we were trying to listen.” It was Mr Myles who called on the workers to cease work and attend a meeting. They did as they had been asked. The managers were confronted with a fait accompli. The workers came down from the formwork and Mr Myles spoke to them. He did so without any prior notification to or approval from any of the site managers who were present. Their delay in intervening did not imply any consent to what he was doing. On the contrary, they accorded Mr Myles some latitude but, after about 10 minutes, intervened and insisted that the workers resume their duties. In doing so they specifically advised Mr Myles that they regarded the cessation of work to be unlawful.

80    Mr Myles acted improperly in procuring a cessation of work at the Site. He thereby contravened s 500 of the Act.

Mr MacDonald’s obstruction of the third concrete truck

81    The Director submitted that Mr MacDonald’s actions in standing in front of the third concrete truck contravened both ss 499 and 500 of the Act: he had obstructed or hindered the driver from performing his duties and had failed to comply with the request by Mr Andrews and other site managers to get out of the way.

82    The respondents argued that the conduct was minor and transient in nature, that it could not be characterised as “appreciable” and that, as a result, Mr MacDonald’s action could not amount to a breach of either ss 499 or 500.

83    There was no occasion nor any necessity for Mr MacDonald to stand in the access roadway when a concrete truck was approaching and to remain there, albeit for a short time, after being directed to move. The request to him to move was reasonable and related to a safety requirement. In acting as he did he hindered the progress of the concrete truck and delayed the discharge of its contents. His conduct cannot, properly, be characterised as trivial or inadvertent. There was no justification for it. He had “obstructed or hindered” the driver and acted improperly.

84    Mr MacDonald contravened both ss 499 and 500 of the Act.

Mr Myles’s obstruction of the third concrete truck

85    The Director alleged that Mr Myles’s conduct in positioning himself between the chute of the third concrete truck and the concrete pump constituted a contravention of s 500 of the Act. He contended that Mr Myles’s conduct hindered and obstructed the concrete pour.

86    The Director further contended that Mr Myles’s failure to comply with Mr Bouten’s request to move out of the way constituted a breach of s 499 of the Act and improper conduct for the purposes of s 500.

87    The respondents argued that the Director’s contention that Mr Myles had contravened s 500 of the Act was not supported by the evidence. They asserted that Mr Myles was entitled to ask the pump operator about the safety of the plant and that none of the site managers had objected to him approaching the pump operator. In this sense, the initial shutting down of the pump was said to have occurred with the implied consent of management. Further they asserted that the pump operator ceased pumping because he did not know if the equipment was compliant. There was, it was submitted, no evidence that the pump operator had ceased pumping at the direction of Mr Myles. Accordingly, Mr Myles had not hindered or obstructed work because there was no work which could be performed while the pump operator and Mr Myles considered whether the equipment was compliant. The respondents contended that an inference could be drawn from the Director’s failure to call the pump operator and the truck driver that their evidence would not have assisted the Director’s case.

88    The managers present made it clear to Mr Myles that they wished him to move from his position between the rear of the concrete truck and the chute leading in to the pump. They wanted him to move so that the truck could discharge its load and the pumping operation resume. Whilst he remained where he was there was a danger of injury to him should the truck back up so that it was close enough to the pump to discharge its load. I infer that Mr Myles well knew that when he chose where to stand. There was no necessity for him to adopt the particular position he did whilst reading the paperwork relating to the maintenance of the pump. He could have done it anywhere. He deliberately chose to remain where he was despite being asked to move. He didn’t move until the truck had driven away. He resumed his position when the next truck arrived. He deliberately hindered and obstructed the progress of the concrete pour. His conduct was also “improper” in the necessary sense.

89    The respondents denied that any contravention of s 499 of the Act had occurred. This was because none of the requests made by site managers to Mr Myles was a request to comply with an occupational health and safety requirement. They referred to the language employed by the managers and noted the absence of any express reference to safety when Mr Myles was being asked to remove himself from the position which he had taken up between the rear of the truck and the concrete pump.

90    I reject this submission. There was a clear and obvious danger to Mr Myles’s safety whilst he remained where he was. That is why the work was suspended. The danger was so obvious as not to require specific comment.

91    Mr Myles contravened s 500 when he prevented the third truck from discharging all or some of its load. He contravened both ss 499 and 500 when he failed to comply with the request to move out of the way of the third truck.

Mr Myles’s obstruction of the fourth concrete truck

92    For the same reasons relied upon in relation to the obstruction of the third concrete truck, the Director submitted that Mr Myles had contravened s 500 of the Act in relation to his obstruction of the fourth concrete truck.

93    The Director contended that Mr Myles’s failure to move out of the way despite repeated requests from management to move amounted to a contravention of s 499 of the Act and improper conduct pursuant to s 500 of the Act.

94    For the same reasons, outlined above in respect of the third concrete truck, the respondents denied any contraventions of ss 499 or 500 of the Act by Mr Myles.

95    For the reasons already given in relation to Mr Myles’s obstruction of the third concrete truck I find that he contravened s 500 of the Act by hindering the discharge of the fourth truck’s load and both ss 499 and 500 of the Act by failing to comply with the request to move out of the way of the fourth truck.

THE CFMEU’S LIABILITY

96    The conduct engaged in by Messrs Myles and MacDonald was engaged in on behalf of the respondent union. The CFMEU’s liability is, therefore, co-extensive with that of each of the individual respondents: see s 793 of the Act.

PENALTY HEARING

97    I will give directions for the parties to make submissions relating to the relief sought by the Director for the various contraventions of the Act which I have found to have occurred.

Associate:

Dated:    5 August 2016