FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is to file and serve minutes of the declarations and other orders appropriate to give effect to the findings of the Court in respect of the liability of the first, second and third respondents.

2.    The trial of the issue of the fourth respondent’s liability is adjourned to a date to be fixed.

3.    Consideration of the imposition of penalties and any consequential matters in relation to all respondents 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

CHARLESWORTH J:

1    This is an application for declarations that the respondents contravened s 500 of the Fair Work Act 2009 (Cth) (FW Act) and for the imposition of civil penalties in respect of the alleged contraventions.

2    The applicant (Director) alleges that on dates between 28 April and 14 July 2014 the respondents acted in an improper manner whilst exercising or seeking to exercise statutory rights to enter a construction site situated on Sturt Street in Adelaide (Site).

3    I have determined that each of the first, second and third respondents contravened s 500 of the FW Act on the dates and in the manner described in these reasons.

4    The question of the fourth respondent’s liability and the question of remedies in respect of all respondents are to be tried separately.

THE statutory framework

5    The Director is a Fair Work Building Inspector for the purposes of s 539 of the FW Act: see s 15(1) of the Fair Work (Building Industry) Act 2012 (Cth) (FWBI Act). He brings these proceedings in that capacity.

6    The fourth respondent, the Construction, Forestry, Mining and Energy Union (CFMEU), is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act). CFMEU is:

(1)    a body corporate (see s 27 of the FWRO Act);

(2)    an industrial association within the meaning of s 12 of the FW Act; and

(3)    a building association and building industry participant within the meaning of s 4(1) of the FWBI Act.

7    CFMEU’s Membership Rules allow for membership of the organisation by a person whose employment consists of or includes building or construction work.

8    As a body corporate, CFMEU is subject to the operation of s 793 of the FW Act, which relevantly provides:

793 Liability of bodies corporate

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.

…

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

9    The individual respondents, Michael McDermott, Anthony Sloane and Aaron Cartledge, are union officials. At the time of their alleged contraventions Mr Cartledge and Mr McDermott were, respectively, the Secretary and Assistant Secretary of CFMEU’s Construction and General South Australian Divisional Branch. Mr McDermott and Mr Cartledge are each alleged to be employees, officers or agents of CFMEU within the meaning of s 793 of the FW Act. Mr Sloane is alleged to be an employee, officer or agent of the NSW Branch of CFMEU (CFMEU-NSW) and an employee, officer and agent of CFMEU within the meaning of s 793 of the FW Act.

10    It is alleged that CFMEU is liable for contraventions of s 500 of the FW Act by reason of the conduct and states of mind of Mr McDermott and Mr Cartledge only. There is no pleaded allegation that CFMEU contravened s 500 of the FW Act by reason of the conduct and state of mind of Mr Sloane.

11    At the time of the alleged contraventions, Mr McDermott, Mr Sloane and Mr Cartledge each held an entry permit issued under s 512 of the FW Act, which provides:

512 FWC may issue entry permits

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.

12    An “official”, in relation to an industrial association such as CFMEU, is defined to mean a person who holds office in, or is an employee of, the association: see s 12 of the FW Act.

13    Division 2 of Pt 3.4 of the FW Act contains provisions conferring upon a permit holder the right to enter premises for purposes specified in Subdivs A, AA and B of Div 2. A permit holder for these purposes is a person to whom the Fair Work Commission (FWC) has issued an entry permit under s 512 of the FW Act: see the definitions of “permit holder” and “entry permit” in s 12 of the FW Act.

14    The Court is presently concerned with a permit holder’s right of entry for the purpose specified in s 484 of the FW Act, which is contained in Subdiv B of Div 2. It provides:

484 Entry to hold discussions

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

(a)    who perform work on the premises; and

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

(c)    who wish to participate in those discussions.

15    Section 484 of the FW Act is to be construed in the context of the other provisions contained in Div 2 of Pt 3.4. Of particular importance is s 486 of the FW Act, contained in Subdiv C. It provides:

486 Permit holder must not contravene this Subdivision

Subdivisions A, AA and B do not authorise a permit holder to enter or remain on premises, or exercise any other right, if he or she contravenes this Subdivision, or regulations prescribed under section 521, in exercising that right.

16    Section 487 of the FW Act is also contained in Subdiv C. It provides:

487 Giving entry notice or exemption certificate

Entry under Subdivision A or B

(1)    Unless the FWC has issued an exemption certificate for the entry, the permit holder must:

(a)    before entering premises under Subdivision A—give the occupier of the premises and any affected employer an entry notice for the entry; and

(b)    before entering premises under Subdivision B—give the occupier of the premises an entry notice for the entry.

(2)    An entry notice for an entry is a notice that complies with section 518.

(3)    An entry notice for an entry under Subdivision A or B must be given during working hours at least 24 hours, but not more than 14 days, before the entry.

17    It is common ground that none of the respondents held an exemption certificate issued by the FWC within the meaning of s 487(1) of the FW Act when they entered the Site.

18    The combined effect of ss 484, 486 and 487 of the FW Act is that a permit holder who has not complied with the requirements of s 487 is not authorised to enter or remain on premises under s 484 of the FW Act, even if the permit holder enters the premises with the subjective purpose of holding discussions with workers specified in s 484.

19    It was submitted on behalf of the Director that s 487 of the FW Act conditions the manner of exercise of the right of entry conferred under s 484 of the FW Act. I do not agree. The express words of s 486 are to the effect that compliance with s 487 of the FW Act is a mandatory precondition to the statutory right to enter or remain on premises. A permit holder who does not comply with the requirements of s 487 of the FW Act is not authorised under s 484 of the FW Act to enter or remain on the premises at all.

20    Section 500 of the FW Act is contained in Pt 3.4. It is a civil remedy provision: see s 539. It 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.

21    The Director alleges that the individual respondents acted in an improper manner within the meaning of s 500 of the FW Act while exercising or seeking to exercise rights in accordance with s 484 of the FW Act.

TRIALS OF SEPARATE ISSUES

22    On 29 April 2016 I ordered that the issue of the liability of all respondents be tried separately from the issue of remedies. The trial on issues of liability was set down for hearing on 17 May 2016. Although the trial was originally listed in respect of the liability of all of the respondents, Mr McDermott, Mr Cartledge and CFMEU did not appear. That is presumably because Mr McDermott and Mr Cartledge had, on their pleadings, made admissions both as to fact and as to mixed questions of fact and law. They had, consequentialy, admitted liability. So, too, had CFMEU.

23    At the commencement of the trial, the Court raised, of its own motion, a question of law potentially affecting CFMEU’s liability. The issue is whether s 793 of the FW Act operated on the facts admitted by Mr McDermott and Mr Cartledge so as to render CFMEU liable for a contravention of s 500 of the FW Act in circumstances where CFMEU is not itself a “permit holder” for the purposes of s 484 and s 500 of the FW Act. The issue arises because s 793 of the FW Act is concerned with the attribution of conduct and states of mind of certain natural persons to a body corporate but does not directly operate, of itself, to ascribe liability to the body corporate. Whether the ascription of conduct and a state of mind to a body corporate results in one or more contraventions by the body corporate will depend upon the elements of the contravention that is alleged in any particular case: see Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525.

24    With the consent of the Director, I made an order that the issue of CFMEU’s liability be tried separately from that of the other respondents, so as to enable CFMEU and the Director to be heard on that discrete question of law. It is for that reason that this judgment concerns only the issue of the liability of Mr McDermott, Mr Sloane and Mr Cartledge.

PROOF

25    The Court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention of a civil remedy provision: s 551 of the FW Act. The Director has the onus of proving the elements of the contraventions alleged against the respondents: Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64 (Bragdon) at [45].

26    As to the standard of proof, s 140(2) of the Evidence Act 1995 (Cth) provides:

140 Civil proceedings: standard of proof

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject matter of the proceeding; and

(c)    the gravity of the matters alleged.

27    As Logan J observed in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 (John Holland), s 140(2) of the Evidence Act is a restatement of this well-known passage in the judgment of Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 362):

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

28    See also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [30] – [31], Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450; [1992] HCA 66 at [2].

the Director’s standing

29    By their respective defences, Mr McDermott, Mr Cartledge and Mr Sloane made a qualified admission that the Director was appointed to his office by written instrument under s 15 of the FWBI Act and thereby had the authority to commence this action in his pleaded capacity as Fair Work Building Inspector by the combined operation of s 59A and s 59C of the FWBI Act and s 539 of the FW Act. The respondents’ admissions were said to be “subject to the provision of valid appointment and authorisation documents”. On one reading of that plea, it might be said that the respondents awaited the provision of further materials before deciding whether to join issue with the validity of the Director’s appointment at trial. For the avoidance of doubt, it is appropriate that I deal with the issue of the Director’s standing, particularly as the named applicant adduced no evidence at trial going to the question of whether he was validly appointed to the office of Director of the Fair Work Building Inspectorate pursuant to s 15 of the FWBI Act. It can be accepted that the authority of the Director to commence civil remedy proceedings in relation to a building matter is dependent upon the validity of his appointment.

30    In my opinion, the Director was, in this proceeding, entitled to rely on the presumption of regularity explained in R v Brewer (1942) 66 CLR 535 (at 548) and Cassell v The Queen (2000) 201 CLR 189. The presumption is to the effect that the person purporting to commence these proceedings in the capacity as the Director of the Fair Work Building Inspectorate is presumed to be duly appointed to that office unless the contrary is proven: see also Minister for Natural Resources v Aboriginal Land Council (NSW) (1987) 9 NSWLR 154, Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506. None of the respondents adduced any evidence at trial to rebut the presumption that the person named as the applicant in these proceedings had been duly appointed. In the circumstances, the presumption operates as sufficient proof of the appointment.

ADMISSIONS

31    The respondents’ contraventions are alleged to have occurred on the Site on four dates: 28 April 2014 (in respect of Mr McDermott and Mr Sloane), 23 May 2014 (in respect of Mr McDermott only), 6 June 2014 (in respect of Mr McDermott only) and 14 July 2014 (in respect of Mr McDermott and Mr Cartledge). Over that period, works were undertaken on the Site for the construction of an apartment complex project known as Ergo Apartments Stage 2 (Project). The head contractor on the Project was, at the relevant time, Hindmarsh Construction Australia Pty Ltd (Hindmarsh). It subcontracted building work to Ballestrin Pty Ltd (Ballestrin) and McMillan Contracting Pty Ltd (McMillan). Each of Hindmarsh, Ballestrin and McMillan engaged employees to perform building work on the Project at the Site (the Employees). There were, at relevant times, between 150 and 200 workers at the Site, including the Employees. The Employees were engaged in building work and they were, therefore, persons whose industrial interests CFMEU was entitled to represent within the meaning of s 484(b) of the FW Act.

32    As I have mentioned, Mr McDermott and Mr Cartledge either made express admissions of fact on the pleadings or otherwise did not dispute the Director’s pleaded facts and are thereby taken to have admitted them: see r 16.07 of the Federal Court Rules 2011 (Cth).

33    Accordingly, the events that occurred on 23 May 2014, 6 June 2014, 14 July 2014 and, in respect of Mr McDermott, 28 April 2014 are, for the most part, not contentious. Insofar as there are any facts alleged against Mr McDermott and Mr Cartledge in respect of which the Director was put to proof, I have found those facts to be proven on the unchallenged evidence adduced by the Director at the trial, except where I have expressly stated otherwise. The facts narrated below are to be understood as including both the admitted and the proven facts.

34    It is convenient to first consider the events occurring on 23 May 2014, 6 June 2014 and 14 July 2014 before turning to the more contentious events occurring on the earlier occasion of 28 April 2014.

Events of 23 May 2014

35    On 23 May 2014, Mr McDermott attended at the Site. He signed a document described as a “visitor register” at approximately 12:50pm. The visitor register was located inside a pedestrian entrance to the Site running off Stamford Court in Adelaide. After signing the register, Mr McDermott was approached by Benjamin Groves, the Project Manager at the Site. The two exchanged words to the following effect:

Groves:        ‘Why are you here?’

McDermott:    ‘Just catching up to have a chat with the guys at lunch time’.

Groves:        ‘We haven’t received an entry notice’.

McDermott:    ‘No’.

Groves:        ‘You have to leave site’.

McDermott:    ‘I’m not exercising my right of entry’.

Groves:        ‘That’s not how it works’.

36    Mr McDermott entered the Site at 12:50pm, notwithstanding that Mr Groves had told him that he had to leave. He proceeded to hold discussions with the Employees in a lunch shed at the Site for approximately 10 minutes. Mr McDermott left the Site at approximately 1:10pm. At the time that he entered the Site, Mr McDermott had not provided Mr Groves or any other person at the Site with an entry notice and the FWC had not issued an exemption certificate for his entry.

37    Although Mr McDermott stated to Mr Groves that he was not exercising his right to enter the Site, he admits that, when entering the Site, he was seeking to exercise rights in accordance with s 484 of the FW Act. On the basis of that admission I find that Mr McDermott entered the Site for the purpose of holding discussions with the Employees.

38    Photographs taken at the Site during the course of Mr McDermott’s visit depict Mr McDermott with the Employees in a lunch shed and Mr McDermott leaving the lunch shed. The photographs were taken by Mr Thomas Fisher, the Project Co-ordinator at the Site, approximately six metres from the lunch shed.

39    In relation to this particular visit, Mr McDermott pleaded that:

(1)    the discussions occurred in a normal break in work, being the lunch break;

(2)    no work was being performed or being attempted to be performed by the workers he spoke to when he spoke to them;

(3)    there was no disruption to their work; and

(4)    the discussions occurred in a room or area for the purposes of s 492(3)(b) of the FW Act.

40    I infer from the location at which the discussions were held, and from the time of day at which the visit occurred, that the discussions took place during an ordinary lunch break. That inference is supported by a record completed by Mr Groves on the same day of the visit. However, I am not satisfied that the discussions occurred in a room or area “for the purposes of s 492(3)(b) of the FW Act”. Section 492 is contained in Subdiv C of Div 2 of Pt 3.4. It provides:

492 Location of interviews and discussions

(1)    The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.

(2)    Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.

(3)    The permit holder may conduct the interview or hold the discussions in any room or area:

(a)    in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and

(b)    that is provided by the occupier for the purpose of taking meal or other breaks.

Note 1:    The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused.

Note 2:    A person must not intentionally hinder or obstruct a permit holder exercising rights under this section (see section 502).

41    As I have mentioned, Mr McDermott did not attend at trial. He adduced no evidence to the effect that he had made any attempt at all to agree any location with Mr Groves for the holding of discussions on the Site for the purposes of s 492(1). Nor did the Director adduce evidence that would support such a finding. There being no evidence of any attempt to agree a location, I reject Mr McDermott’s pleaded allegation insofar as he means to contend that he was authorised to hold discussions in the lunch shed at the Site by virtue of s 492(3)(b) of the FW Act. The effect of s 486 of the FW Act is that he was not authorised by the Act to hold discussions with the Employees at any location at all on the Site. Whether or not Mr McDermott’s choice of location constitutes a mitigating factor for the purpose of the assessment of penalties is a matter yet to be determined.

Events of 6 June 2014

42    Mr McDermott again entered the Site on 6 June 2014. He signed the visitor register at 12:05pm shortly after his arrival. He was again approached by Mr Groves. The two exchanged words to the following effect:

Groves:        ‘Why are you visiting site?’

McDermott:    ‘I am catching up with the guys at lunch’.

Groves:        ‘Have you given an entry notice?’

McDermott:    ‘If I find anything on site I will use my WHS permit to gain entry’.

Groves:        ‘Leave the site’.

43    Again, notwithstanding that he had been told to leave, Mr McDermott continued on to the Site where he held discussions with Employees. The discussions took place in the lunch shed and continued for approximately 30 minutes. Mr McDermott left the Site at approximately 1:07pm.

44    As with his attendance on 23 May 2014, at the time that he entered the Site Mr McDermott had not provided Mr Groves or any other person at the Site with an entry notice and the FWC had not issued an exemption certificate for his entry.

Events of 14 July 2014

45    On 9 July 2014 Mr McDermott entered the Site at approximately 12:00pm and displayed posters in the lunch shed notifying Employees of a meeting to be held on 14 July 2014 at 12:30pm. Although he had obtained the consent of Mr Groves to enter the Site for the purpose of displaying posters, Mr Groves was not aware at the time that he granted consent that the posters would give advance notice of a meeting to be held at the Site on 14 July 2014.

46    On 14 July 2014 Mr McDermott attended at the Site at approximately 12:00pm. Mr Cartledge arrived about 10 – 15 minutes after Mr McDermott. Both Mr McDermott and Mr Cartledge signed the visitor register.

47    At this juncture, there is a divergence between the Director’s pleaded case, the admissions of Mr McDermott and Mr Cartledge and the unchallenged evidence adduced by the Director at trial. The Director’s pleaded case proceeds as follows:

Mr  Groves approached Mr McDermott and Mr Cartledge and asked them to leave the Site because an entry notice had not been provided.

Particulars

Groves and Cartledge had a conversation to the following effect:

Groves:    ‘I understand that you are having discussions at lunch time, because we haven’t received a notice you have to leave’.

Cartledge:    ‘We will leave site after we have had our meeting’.

Groves:    ‘Why aren’t you giving notice prior to entry if you give prior notice we have no problem’.

Cartledge:    ‘Although we won’t be looking at safety on site I think the formwork could be improved and we will turn a blind eye to it, there’s a sneak peak of what we will be looking at next time on site’.

48    Both Mr McDermott and Mr Cartledge admit that Mr Groves asked them to leave the Site. They otherwise deny that the conversation occurred to the effect of the words pleaded by the Director. In his Amended Defence dated 5 November 2015, Mr Cartledge alleges that he had a conversation with Mr Groves to the following effect:

Cartledge said to Groves that there were workplace and safety risks with formwork on site, including in relation to the handrail system. Cartledge said that if it was not addressed he would ask McDermott to return on another day and address that safety issue. Whilst Cartledge was on site on that day, steps were taken to remedy the safety matters identified by Cartledge and by the time Cartledge left the site it appeared that the safety issues he had identified were in the process of being resolved. Groves said to Cartledge that it was good to see him as he had not seen Cartledge for some time.

49    Mr Cartledge did not adduce evidence at trial in support of that pleaded allegation insofar as it bears on his liability.

50    In his unchallenged affidavit evidence, Mr Groves deposes to two conversations occurring before the union officials proceeded further on to the Site. One of the conversations is to the effect pleaded by the Director and extracted above at [47] of these reasons. Neither Mr McDermott nor Mr Cartledge challenged that evidence at trial. I find on the basis of that conversation that both Mr McDermott and Mr Cartledge were asked by Mr Groves to leave the Site. That is consistent with the admission made by both Mr McDermott and Mr Cartledge that they were told to leave.

51    The other conversation deposed to by Mr Groves was an exchange between him and Mr McDermott, prior to Mr Cartledge’s attendance. The affidavit evidence was as follows:

At 12:00 noon I was in the site office when Michael entered my office. We had a conversation to the following effect:

I said: ‘What are you doing here?’

Michael said: ‘I’m here to have a discussion with Aaron with the guys at lunchtime’

I said: ‘Then you have to leave’

Michael said: ‘Aaron will be on site shortly’

I said: ‘Make sure you bring Aaron into see me’

52    In the circumstances, I am not prepared to act on that evidence for the purpose of establishing Mr McDermott’s liability for contravening s 500 of the FW Act on 14 July 2014. Although the conversation is consistent with Mr McDermott’s admission that he was asked to leave the Site, the conversation was not pleaded in support of the Director’s claims. The only conversation relied upon on the Director’s pleaded case was that which I have extracted at [47] above. I am satisfied that that conversation occurred in the presence of Mr McDermott and that Mr Groves’ words ought reasonably to have been understood (and were in fact understood) by both union officials to constitute a direction that they both leave the Site.

53    Mr McDermott and Mr Sloane ignored the direction, entered further into the Site and proceeded to hold discussions with the Employees in the lunch shed at the Site for approximately 25 minutes. Photographs taken by Mr Fisher at the Site during the course of Mr McDermott and Mr Cartledge’s visit depict Mr McDermott and Mr Cartledge holding discussions with the Employees in a lunch shed. Mr Fisher was standing outside the lunch shed. Mr Fisher deposed to having seen Mr McDermott and Mr Cartledge holding the discussions, although he could not hear what was being said.

54    As in the case of Mr McDermott’s attendance on 23 May 2014, it is then alleged by Mr McDermott and Mr Cartledge that their discussions with the Employees occurred in a lunch room “being a room or area within the meaning of s 492(3)(b)” of the FW Act, that the discussions occurred during an ordinary break in work and that no work was disrupted or delayed by virtue of the discussions. Although I am satisfied that the discussions took place during an ordinary lunch break I am not, for the reasons given above, satisfied that the lunch shed is “a room or area within the meaning of s 492(3)(b)” so as to authorise the holding of discussions there. Nor am I satisfied that the location in which the discussions were held otherwise affects the question of the liability of Mr McDermott or Mr Cartledge for contraventions of s 500 of the FW Act. It was not alleged by the Director that the choice of location for the discussions was a circumstance that constituted acting in an improper manner within the meaning of s 500 of the FW Act in respect of this particular visit. Again, I express no view at present as to whether the location of the discussions is a mitigating circumstance for the purposes of the assessment of penalty.

55    Mr McDermott and Mr Cartledge left the Site at approximately 1:10pm. As at the time of their entry, neither Mr McDermott nor Mr Cartledge had provided Mr Groves or any other person at the Site with an entry notice. The FWC had not issued an exemption certificate in respect of their entry.

56    Mr McDermott admits that by entering the Site, he was seeking to exercise rights in accordance with s 484 of the FW Act and that, in the circumstances described above, he acted improperly within the meaning of s 500 of the FW Act.

The events of 28 April 2014

57    The Director’s case in respect of the events of 28 April 2014 was pleaded at [10] – [20] of the Statement of Claim filed on 31 March 2015 as follows:

10    At approximately 8.45 am on 28 April 2014 McDermott and Sloane attended at the Site.

11    McDermott and Sloane signed a document described as a ‘visitor register’ at approximately 8.55 am.

12    McDermott and Sloane met the project manager at the Site, Benjamin Groves (Groves).

13    Groves asked McDermott and Sloane why they were at the Site. McDermott and Sloane did not provide a response. Groves asked McDermott and Sloane to leave the Site.

Particulars

13.1    Groves spoke to McDermott and Sloane and said words to the effect ‘Why are you guys on site, is it for industrial relations or safety related?’

13.2    McDermott and Sloane did not respond to Groves.

13.3    Groves said words to the effect ‘You haven’t provided us with a notice of entry, you must leave site.’

14    Notwithstanding the direction in paragraph 13, McDermott and Sloane walked further onto the Site and proceeded to hold, and further or in the alternative, attempted to hold, discussions with Project Workers.

Particulars

14.1    McDermott and Sloane held the discussions:

14.1.1    in rooms or areas at the Site not agreed with Hindmarsh for the purposes of section 492 of the Act; and

14.1.2    not during mealtimes or other breaks for the purposes of section 490(2) of the Act.

14.2    The discussions included:

14.2.1    discussions with approximately five Ballestrin employees performing work in the excavation pit at the Site at about 9 am;

14.2.2    discussions with an employee of Hindmarsh, Damien O’Connell, who was performing work in the excavation pit at about 9.10 am; and

14.2.3    discussions with an employee of McMillan who was performing work in the excavation pit at about 9.15 am.

15    McDermott and Sloane left the Site at approximately 9.25 am.

16    As at the time of entry on 28 April 2014 McDermott and Sloane had not provided Hindmarsh with an entry notice in respect of the entry for the purposes of section 487 of the Act (entry notice).

17    The Fair Work Commission (FWC) had not issued an exemption certificate for the entry on 28 April 2014.

18    By reason of the matters referred to in paragraphs 2.4, 10, 11, 13 and 14 herein McDermott was seeking to exercise rights in accordance with section 484 of the Act.

19    By reason of the matters referred to in paragraphs 3.3, 10, 11, 13 and 14 herein Sloane was seeking to exercise rights in accordance with section 484 of the Act.

20    By reason of the matters set out in paragraphs 2.1 to 2.4 herein, the CFMEU was taken by operation of section 793(1 )(a) of the Act to have engaged in the conduct of McDermott referred to in paragraphs 10, 11, 13 and 14 herein.

58    I bear in mind that there is no pleaded allegation that Mr Sloane was involved in the contravention pleaded against Mr McDermott within the meaning of s 550 of the FW Act. The Director must establish that each of the elements of a contravention of s 500 of the FW Act is independently made out in relation to Mr Sloane.

59    As originally filed, the Statement of Claim alleged (at [3.1]) that Mr Sloane was an employee, officer or agent of CFMEU-NSW. CFMEU-NSW was named as the fifth respondent. It was alleged that CFMEU-NSW was liable for a contravention of s 500 of the FW Act by reason of the conduct and state of mind pleaded against Mr Sloane.

60    On 29 April 2016 I granted the Director leave to discontinue the action against CFMEU-NSW and to file an Amended Statement of Claim. The Amended Statement of Claim contained amendments consequent upon the discontinuance against CFMEU-NSW and included an additional allegation to the effect that Mr Sloane was an employee of both CFMEU and CFMEU-NSW. The allegations in [10] – [20] of the pleading remained untouched.

61    Mr McDermott pleaded that he did not recall some of the significant pleaded facts. He nonetheless did not dispute, and is therefore taken to have admitted those facts.

62    Mr Sloane filed a Defence dated 15 June 2016 and then an Amended Defence dated 5 November 2015. In his Amended Defence, he admitted (or is taken to have admitted) the allegations pleaded in [10] and [11] of the Statement of Claim. He claimed that he did not know and could not admit whether he and Mr McDermott met Mr Groves at the Site, as alleged in [12] of the Statement of Claim. He further claimed that he did not recall and therefore could not admit the allegations that Mr Groves had asked him and Mr McDermott why they were there, that they gave no response and that they were then asked to leave the Site. Nor, according to his Amended Defence, could Mr Sloane recall any of the matters pleaded in [14] of the Statement of Claim, including the allegation that he walked on to the Site and held or attempted to hold discussions with the Employees. He nonetheless made admissions to the effect that he left the Site at approximately 9:25 am, that he had not provided Hindmarsh with an entry notice for the purposes of s 487 of the FW Act and that the FWC had not issued an exemption certificate in respect of his entry to the Site on the relevant date. In response to the allegation that by entering the Site he was seeking to exercise rights in accordance with s 484 of the FW Act, Mr Sloane pleaded, by repetition and reference, that he did not recall events and that he therefore did not know and could not admit whether he was seeking to exercise such rights. He then repeated that plea as the basis for denying liability for a contravention of s 500 of the FW Act.

63    By an affidavit sworn on 21 August 2015, Mr Sloane deposed to having visited a number of construction sites in Adelaide over a period of five to six days in 2014. He went on to say:

11.    When I filed my Defence in these proceedings I exercised my right to privilege against self-incrimination and self-disclosure [sic] to penalty.

12.    I intend to maintain my right to privilege against self-incrimination and self-disclosure to penalty at the hearing of this matter in relation to events on 28 April 2014 at the Ergo Apartment Stage 2 Project site pleaded in the statement of claim paragraphs 10 to 14, respectively.

64    Mr Sloane filed a further Amended Defence dated 10 May 2016 in response to the Amended Statement of Claim. I will refer to that pleading as Mr Sloane’s Second Amended Defence, although it was not correctly titled that way. Although [10] – [20] of the Statement of Claim had not been amended, Mr Sloane’s responses to those pleas were amended in significant respects. He denied facts pleaded in [12], [13] and [14] whereas he had previously pleaded that he could not recall those events. He denied that he was, upon entering the Site, seeking to exercise rights in accordance with s 484 of the FW Act, whereas he had previously pleaded that, by reason of having no recollection of critical facts, he did not know and could not admit his purpose for attending there.

65    In an affidavit sworn on 9 May 2016, Mr Sloane gave evidence to the effect that he had read the affidavits of the Director’s witnesses at the time of preparing his first affidavit (that is, in August 2015). He said words to the effect that reading the affidavits of the Director’s witnesses had “brought back” his memory of certain events of his visit to the Site.

66    He went on to give evidence of having positive recollections of events that occurred at the Site and as to his state of mind, particularly his subjective purposes for attending there. He denied holding any discussions on the Site with the Employees. He stated that he had confined his comments to saying “hello” or “hi” when he was introduced to the Employees by Mr McDermott as a “colleague from New South Wales”. He stated that he did not, at the relevant time, consider it would be appropriate to hold or attempt to hold discussions with Employees at the Site “concerning industrial issues or any issues beyond that which were necessary to be polite”. Mr Sloane stated that Mr McDermott said on occasions during the visit that he (Mr Sloane) was “working for us locally here, for the CFMEU”.

67    There is substantial inconsistency between the facts pleaded in the Amended Defence dated 5 November 2015 and matters pleaded in the Second Amended Defence dated 10 May 2016. Mr Sloane’s affidavit of 9 May 2016 does not adequately explain the inconsistency. Under cross-examination, Mr Sloane stood by his assertion that he could recall events that had occurred at the Site at the time of preparing his first affidavit in August 2015. That is curious. His recollection of events at that time did not assist him in explaining why he made positive assertions in the Amended Defence of 5 November 2015 that he had no recollection of critical events.

68    I find Mr Sloane’s attempts to explain away the differences between the two versions of the pleadings to be wholly unconvincing. Nor do I accept that the inconsistencies between the two versions of the pleading can be explained by Mr Sloane’s reliance or purported reliance on the privilege against self-incrimination or self-exposure to civil penalty, as he alleged. The claim for privilege does not erase or otherwise explain the circumstance that Mr Sloane originally made positive pleadings of fact in response to the Statement of Claim, namely his pleaded state of mind of having no recollection of important events. Whilst it might have been open to Mr Sloane to plead no substantive defence to the facts alleged in the Statement of Claim, that is not the course that he adopted.

69    Mr Sloane’s credibility is adversely affected by the inconsistencies in his pleadings, together with his inept attempts to explain how, at the time of trial, he purported to recall events which, as at 5 November 2015, he pleaded he could not recall at all.

70    It is against that background that I make the following findings of fact.

71    Mr Sloane first attended at the Site with Mr McDermott at about 8:45am. He signed the visitor register upon his arrival. He was wearing a helmet and a vest, both of which were clearly marked with the initials CFMEU. He remained at all times in close proximity to Mr McDermott. At the time that Mr McDermott and Mr Sloane were approached by Mr Groves, Mr Sloane was standing no more than one metre away from Mr McDermott. Mr Sloane introduced himself to Mr Groves as “Tony”. Mr McDermott explained to Mr Groves that Mr Sloane was a person who was working locally for CFMEU.

72    Mr Groves said words to the effect “Why are you guys on site, is it for industrial relations or safety related?” Neither Mr McDermott nor Mr Sloane responded to the question. Mr McDermott smiled. I am satisfied that when he asked the question, Mr Groves was facing Mr McDermott. However, I reject Mr Sloane’s evidence that Mr Groves’ question enquired only as to Mr McDermott’s purpose for attending the Site and not also as to Mr Sloane’s purposes. Although directed to Mr McDermott, the words of the question clearly enquire as to the purposes of both union officials and were uttered within earshot of Mr Sloane. It can be fairly inferred that Mr Sloane heard the question and understood the question to go not only to Mr McDermott’s reasons for being there but also to his own.

73    In cross-examination, Mr Groves acknowledged that he had, on a number of previous occasions, asked Mr McDermott to explain his reasons for attending the Site. I do not accept that Mr McDermott’s smile in response to the question evidenced a light-hearted relationship between Mr McDermott and Mr Groves as a matter of fact, nor do I accept Mr Sloane’s evidence that there was an atmosphere of jocularity between Mr McDermott and Mr Groves, such that questions of the kind posed by Mr Groves could simply be ignored. No proposition of that kind was put to Mr Groves in cross-examination. I will return to that issue again later in these reasons.

74    I am satisfied that Mr Groves then told both Mr McDermott and Mr Sloane to leave the Site. He said words to the effect “You haven’t provided us with a notice of entry, you must leave the site”. It matters not whether Mr Groves was physically oriented toward Mr McDermott when he gave that direction. The import of the direction is to be derived from the question that preceded it. I find that Mr Sloane subjectively understood the direction to be aimed not only at Mr McDermott but also at himself. It is, I find, incredulous that Mr Sloane might entertain the idea that it was only Mr McDermott who was being told to leave the Site, particularly in circumstances where neither of them had given notice of entry. Mr Sloane ultimately conceded in cross-examination that he well understood he did not have the permission of Mr Groves to enter the Site. The concession was not readily forthcoming.

75    Mr McDermott proceeded further into the Site with Mr Sloane following no more than a metre behind him.

76    Photographs taken by Mr Fisher during the course of Mr Sloane’s visit show Mr Sloane standing in close proximity to Mr McDermott and to Employees in small groups at three locations. The photographs were taken from vantage points varying between two and 20 metres from Mr McDermott and Mr Sloane.

77    I have considered the photographs in the context of the other evidence at trial, including a previous out-of-court statement of Mr Groves dated 8 May 2015, ultimately admitted in evidence without objection by Counsel for Mr Sloane. That statement was taken about 10 days after the events in issue. I consider it to be reliable evidence of the facts in issue. Mr Groves was cross-examined about some discrepancies between the earlier statement and his affidavit evidence in this Court. Notwithstanding those discrepancies, Mr Groves presented as an earnest witness. I do not accept that his affidavit was improperly tailored as suggested by Mr Sloane’s Counsel in the course of cross-examination and in closing submissions.

78    At the first location, Mr McDermott and Mr Sloane are depicted with a small group of Ballestrin shotcrete workers in an excavation pit. I am satisfied that they remained in the group for a period of about 10 minutes at that location and that the relevant Employees ceased working to join with Mr McDermott and Mr Sloane in a group. Mr Groves could not recall seeing Mr Sloane talking to the Ballestrin workers at that location.

79    At the second location, Mr McDermott and Mr Sloane are depicted standing on either side of a Hindmarsh employee, Damien O’Connell. I am satisfied that Mr Groves saw Mr Sloane talking with Mr O’Connell, although Mr Groves was standing about 10 metres away and could not hear what was being said.

80    At the third location, Mr McDermott and Mr Sloane are depicted with a McMillan employee referred to in evidence by the first name Kerry. I am satisfied that Mr Groves saw Mr Sloane participating in a conversation with Mr McDermott and Kerry, although Mr Groves was positioned between 10 and 15 metres away and could not hear what was being said.

81    Mr Fisher’s evidence was to the effect that he was either too far away from Mr Sloane or that Mr Sloane was positioned so that it was not possible for Mr Fisher to ascertain whether Mr Sloane was talking to any of the Employees at any of the three locations.

82    Whilst at the Site, and in Mr Sloane’s presence, Mr McDermott handed CFMEU brochures to the Employees with a title to the effect What Your Union Can Do For You.

83    Much was made at the trial of the question of whether Mr Sloane in fact had any substantive conversation with any of the Employees at the Site during his 45 minute attendance there. On that topic, I am satisfied that Mr Sloane was introduced by Mr McDermott to the Employees as a union official who was working locally for CFMEU in Adelaide. He was not introduced as a mere outside observer of Mr McDermott’s activities there, nor did Mr Sloane introduce himself in that capacity. When introduced to the Employees, Mr Sloane said “hello” or “hi”. In his oral evidence, he described the nature of his exchanges with the Employees as a “meet and greet”. Having regard to Mr Sloane’s own evidence and to all of the surrounding circumstances, I am also satisfied that Mr Sloane engaged in what he described as banter with the Employees on topics other than industrial issues, and that he permitted himself to be introduced as a local representative of CFMEU either before or after Mr McDermott handed out brochures to the Employees which, I find, promoted the services their union representatives could provide to them.

84    To the extent I have described in the preceding paragraphs, I find that Mr Sloane participated in discussions with the Employees. However, the evidence does not establish the precise content of his contributions to those discussions. It is not established, for example, that Mr Sloane expressly uttered words to the Employees on the topic of any specific industrial issue.

85    Mr Sloane’s Counsel submitted that the Rules of Association of CFMEU and CFMEU-NSW were relevant in determining Mr Sloane’s purposes for entering the Site. More particularly, it was alleged that the Rules prohibited, in the absence of certain consents, the resources of one State’s CFMEU branch being deployed in another State. It was submitted that Mr Sloane’s stated purpose for entering the Site was consistent with the Rules in that regard, particularly insofar as Mr Sloane denied holding discussions with the Employees as to industrial issues arising on the Site. Although I accept that the Rules might conceivably have some relevance in determining the subjective purposes of a CFMEU official from one State for entering a construction site in another, Mr Sloane gave no evidence as to having any detailed familiarity with the relevant Rules at the relevant time. He did not resort to them in cross-examination when his purposes for attending the Site were subject to challenge. Rather, he deposed that he considered it unlikely that Employees on the Site would be members of CFMEU-NSW.

86    These are not the first proceedings in which Mr Sloane is alleged to have contravened s 500 of the FW Act. As I have mentioned, Mr Sloane attended the Site during the course of a short visit to Adelaide, during which he visited a number of other construction sites. Early in his cross-examination, Mr Sloane stated that his purpose for visiting the Site was the same as his purpose for visiting other sites whilst in Adelaide. His evidence proceeded as follows:

Mr Roder:    … You were in Adelaide for about a week, weren’t you?

Mr Sloane:    Yes.

Mr Roder:    Yes. Did your purpose in Adelaide for that entire week remain the same?

Mr Sloane:    Yes.

Mr Roder:    I see. So your purpose on that day was no different from your purpose on other days when you attended other sites?

Mr Sloane:    Yes.

Mr Roder:    Yes. Did you hold discussions with workers when you attended other sites in Adelaide during that week?

Mr Sloane:    No.

87    One of those other sites was a construction site for an Ibis Hotel on Grenfell Street in the Adelaide CBD. Mr Sloane was the respondent in civil remedy proceedings in this Court in which it was alleged by the Director that he had contravened s 500 of the FW Act in connection with his visit at that site. He acknowledged in cross-examination in this action that he had admitted in the course of the earlier proceedings that he visited the Ibis Hotel site for the purpose of seeking to exercise rights in accordance with s 484 of the Act.

88    In re-examination, Mr Sloane claimed that he had not understood the import of questions put to him on this topic during cross-examination. I do not accept that Mr Sloane had difficulty understanding the meaning of the questions put to him. Although he had earlier stated that he suffered from dyslexia which, he said, affected his ability to absorb written materials, he presented as a robust witness, capable of avoiding responses he perceived to be adverse to his case and taking issue with potentially harmful propositions put to him. His responses in cross-examination generally showed a high level of vigilance, particularly in relation to the question of whether he had carried on any conversation with any of the Employees at the Site.

89    Mr Sloane’s responses in connection with the Ibis Hotel issue were unguarded, rather than affected by any misunderstanding as to the meaning of the questions put to him. He gave no evidence to the effect that his admissions in relation to the Ibis Hotel site could or should not be interpreted as meaning anything other than he had entered into that site for a s 484 purpose, that is, the purpose of holding discussions with workers there. Nor was any submission to that effect made on his behalf at trial.

90    Finally in respect of the factual allegations, I find that the discussions that occurred at the Site took place in areas that had not been agreed with Hindmarsh. That inference fairly arises from the fact that Mr Groves had not been given notice of the visit and that he directed Mr McDermott and Mr Sloane to leave the Site. I also find that the Employees ceased their work to participate in discussions and that the discussions took place at times other than meal breaks or other scheduled breaks in their work.

MODEL LITIGANT ISSUES

91    Before turning to the applicable legal principles, I digress to respond to an invitation made by Mr Sloane’s counsel to comment on the course of evidence at trial, particularly in relation to the Director’s obligations as a model litigant.

92    On 28 July 2014, after exchanges between Mr McDermott, Mr Sloane and the Employees had been completed, a conversation took place between Mr McDermott and Mr Groves, with Mr Sloane in attendance. The conversation bore on a number of industrial issues relating to the Site. I am satisfied that Mr Sloane did not actively participate in that conversation. I do not take that conversation into account in determining Mr Sloane’s subjective purposes for attending the Site. The Director submitted (correctly, in my view) that evidence of the conversation was irrelevant in the determination of Mr Sloane’s liability. Mr Sloane’s Counsel agreed.

93    Counsel for Mr Sloane invited the Court to comment on the alleged withholding of evidence by the Director in connection with the conversation to which I have just referred. More precisely, counsel alleged that the Director had breached his obligations as a model litigant because the affidavit of Mr Groves, constituting his evidence-in-chief, did not include any material revealing either the fact or content of that conversation.

94    Evidence of the subject conversation is contained in the previous out-of-court statement of Mr Groves dated 8 May 2015 upon which Mr Groves was cross-examined for some time.

95    There is before me insufficient evidence that the Director has departed from model litigant principles. On the contrary, evidence about the subject conversation was disclosed to the respondents during pre-trial discovery processes when the 8 May 2015 statement of Mr Groves was discovered. The model litigant principles do not require a litigant to include in his or her affidavit all evidence that may conceivably be of assistance to an opposing party. Nor does a model litigant in civil penalty proceedings have any obligation to give disclosure in any event, apart from such disclosure as may be ordered under the Rules of this Court against any other litigant in civil proceedings: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 at [240]; Brandon v Commonwealth of Australia [2005] FCA 109 at [11]. An applicant in civil penalty proceedings does not owe the Court or the respondent a prosecutorial duty of the kind that applies in criminal proceedings.

96    It was submitted on behalf of Mr Sloane that “it has always been a feature of the model litigant policy that there is a duty to ensure that a Court is in full possession of all relevant information known by the model litigant concerning proceedings”. That is a sweeping contention that, in my opinion, is not supported by the authorities. The standard expected of a model litigant is that of fair dealing. As emphasised by the Full Court in Scott v Handley (1999) 58 ALD 373; [1999] FCA 404 at [45], the fair dealing standard is best appreciated in its particular exemplifications in individual cases:

… The courts have, for example, spoken positively of a public body’s obligation of ‘conscientious compliance with the procedures designed to minimise cost and delay’: Kenny’s case, above, at 273; and of assisting ‘the court to arrive at the proper and just result’: P & C Cantarella Pty Ltd v Egg Marketing Board, above, at 383. And they have spoken negatively, of not taking purely technical points of practice and procedure: Yong’s case, above, at 166; of not unfairly impairing the other party’s capacity to defend itself: Saxon’s case, above, at 268; and of not taking advantage of its own default: SCI Operations Pty Ltd, above, at 368.

97    Further, it was always open to Mr Sloane’s counsel to cross-examine Mr Groves as to the reasons why certain evidence contained in the 8 May 2015 statement might have been omitted from his affidavit, as counsel ultimately did, and to make submissions to the effect that the omission of the material reflected adversely on Mr Groves’ credibility. Nothing in the conduct of the Director unfairly impinged upon Mr Sloane’s capacity to run his defence in that way. Strangely, it was ultimately submitted on behalf of Mr Sloane that evidence of the later conversation between Mr Groves and Mr McDermott was irrelevant in determining Mr Sloane’s subjective purposes for entering the Site in any event. As I have said, Counsel for the Director made the same submission. The Court is of the same view. It is difficult, in the circumstances, to identify any foundation upon which a legitimate allegation of a departure from model litigant principles on that ground might stand.

98    A further submission was made to the effect that there might have been a deliberate withholding by Mr Groves or the Director of a page of a business record that evidenced the fact and content of the same conversation. I am not satisfied that there has been any such deliberate withholding. It was further submitted that the Director should have caused Mr Groves to include in his affidavit a statement to the effect that he had on a number of previous occasions asked Mr McDermott to declare his reasons for attending at the Site. It was submitted that the evidence concerning Mr McDermott responding with only a smile to that same question on 28 April 2014 might be misinterpreted without the nuances said to be provided by that historical context. That topic was legitimate territory for cross-examination of Mr Groves, and there was nothing at trial to indicate that Mr Sloane’s capacity to cross-examine Mr Groves on the topic was unfairly impinged upon in a way that might constitute a breach of the Director’s model litigant obligations.

99    I note at this juncture that the casting of a smile by Mr McDermott in all of the circumstances is not, in my opinion, rendered more innocent by virtue of Mr McDermott having been asked the same question on previous occasions, and refusing to answer. I have rejected Mr Sloane’s evidence to the effect that he believed there to be something of a shared joke between Mr Groves and Mr McDermott, such that Mr McDermott’s smile could be interpreted as anything other than an outright refusal to respond. Mr Sloane’s evidence in that regard was inconsistent with his admission in cross-examination that he knew that he had not been given permission by Mr Groves to enter the Site at all.

100    An allegation that a party who is subject to model litigant obligations has departed from those obligations is a serious one. The allegation should not be made without proper factual foundation. The allegation should only be made after a careful and considered reflection upon what the model litigant obligations in fact require in the particular circumstances, as to which see: Melbourne Steamship Company Limited v Moorhead (1912) 15 CLR 333 at 342; Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155; Kenny v State of South Australia (1987) 46 SASR 268 at 273. No departure from the obligations is demonstrated in the present case.

liability: PRINCIPles

101    Section 500 of the FW Act will be contravened by a permit holder where the permit holder acts in an improper manner when exercising or seeking to exercise rights in accordance with Pt 3.4 of the FW Act. As I have said, it is the Director’s case that Mr McDermott, Mr Sloane and Mr Cartledge acted in an improper manner when seeking to exercise rights in accordance with s 484. The right conferred by s 484 of the FW Act is the right to enter premises for the purpose of holding discussions with workers:

(1)    who perform work on the premises;

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

(3)    who wished to participate in those discussions.

See s 484(a) – (c) of the FW Act.

102    The issues to be determined are, first, whether Mr Sloane exercised or sought to exercise rights in accordance with s 484 of the FW Act and, if so, whether he acted in an improper manner in exercising or seeking to exercise the right. Determination of the first issue requires an examination of Mr Sloane’s subjective purposes for entering the Site. Determination of the second issue requires an assessment of whether the actions of Mr Sloane, viewed objectively, constituted “acting in an improper manner”. The same principles apply in relation to the other respondents.

Purpose

103    In John Holland, the Full Court (Spender, Dowsett and Logan JJ) construed s 760 and s 767 of the Workplace Relations Act 1996 (Cth) (WR Act). Those provisions were in substantively similar terms to s 484 and s 500 of the FW Act respectively. At the date of judgment, the WR Act provisions were enacted in the following terms:

760 Right of entry to hold discussions with employees

A permit holder for an organisation may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions. For this purpose, eligible employee means any employee who:

(a)    on the premises, carries out work that is covered by an award or collective agreement that is binding on the permit holder’sorganisation; and

(b)    is a member of the permit holder’s organisation or is eligible to become a member of that organisation.

…

767 Hindering, obstruction etc. in relation to this Part

(1)    A permit holder exercising, or seeking to exercise, rights:

(a)    under section … 760; or

(b)    …

must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

(2)    Subsection (1) is a civil remedy provision.

104    It was alleged in that case that the permit holders contravened s 767 by intentionally hindering or obstructing a person when exercising or seeking to exercise rights under s 760. Spender J said (at [8] – [9]) that the relevant question was whether the permit holders had the prescribed purpose. If the permit holder did not have the prescribed purpose, then s 767 of the WR Act would not be engaged. Dowsett J, said (at [39]) that although the term “eligible employee” in s 760 of the WR Act was defined, authorisation of entry pursuant to that section was not dependent upon employees at the premises objectively satisfying that definition:

… The permit holder must rather satisfy the requirement that he or she have the required purpose. Establishment of, or challenge to the existence of such purpose may involve examination of whether there was an adequate factual basis for having the prescribed purpose. If, for example, the permit holder did not have some basis for a belief that there were eligible employees on the premises, then it may be difficult to conclude that he or she had the purpose of entering into discussions with people fitting that description. His or her purpose may rather have been to discover whether there were such people on the premises. Of course, a person may have more than one purpose.

105    Dowsett J was there concerned with the question of whether entry to premises would be authorised in fact by s 760 of the WR Act (the equivalent of s 484 of the FW Act), and not with the different question of whether a permit holder may be properly characterised as “seeking to exercise” the right of entry within the meaning of s 767(1) of the WR Act (the equivalent of s 500 of the FW Act). It is implicit in the reasoning of Dowsett J that the test for whether a permit holder enters premises for the statutorily prescribed purpose is a subjective one.

106    Dowsett J continued (at [41]):

… I am unpersuaded that a permit holder can be described as exercising, or seeking to exercise a right under s 760 if there is no such right because of the absence of the requisite purpose. I would, however, prefer to leave that question unresolved, largely because it has not been argued.

107    On remittal, Greenwood J confirmed that the assessment of the permit holder’s purpose was a subjective one and that the assessment does not depend upon whether the purpose was reasonably formed: John Holland Pty Ltd v Construction, Forrestry, Mining and Energy Union (2011) 195 FCR 280 at [130].

108    In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 (DFWBII v CFMEU), White J said (at [71]):

The purpose of a person’s entry in the context of s 484 is to be assessed objectively having regard to all the surrounding circumstances. The statements made by the person at the time of the entry, or subsequently, may be relevant to that assessment but are not conclusive. The person’s conduct and other circumstances after the entry may be more revealing of the person’s actual purpose or purposes.

109    It was submitted on behalf of Mr Sloane that this passage should not be followed because it advances an objective test for the assessment of a permit holder’s purpose for entering premises. The passage, it was submitted, is inconsistent with the reasons of Dowsett J in John Holland on appeal, as approved by the Full Court in Bragdon. This Court was informed that the respondents in DFWBII v CFMEU had commenced an appeal from that judgment. Counsel for Mr Sloane submitted that delivery of judgment in this matter should be delayed pending the finalisation of that appeal. In my opinion, it is neither appropriate nor necessary to delay judgment in this matter pending the resolution of the appeal.

110    I proceed on the basis that the word “purpose” in s 484 of the FW Act is a reference to the subjective purpose of the permit holder and that the enquiry to be undertaken is one involving an assessment of the permit holder’s state of mind. Although it is not necessary for the Director to prove, as an element of a contravention of s 500 of the FW Act, that the workers at the Site objectively had the characteristics prescribed in s 484 of the FW Act, the characteristics of the workers, as understood by the alleged contravenor, will be relevant in determining whether the contravenor exercised or was seeking to exercise a right of entry to premises for the subjective purpose of holding discussions with them: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287, [156] – [158] (White J).

111    It is trite to say that a finding as to a person’s state of mind is a finding of fact to be made upon an assessment of all the surrounding circumstances. Read in the context of his Honour’s reasons for judgment in DFWBII v CFMEU as a whole, I do not understand the passage of White J extracted at [108] above to express any principle to the contrary.

Improper manner

112    The question of whether a permit holder has acted in an improper manner within the meaning of s 500 of the FW Act is an objective one: Bragdon at [61], [63] – [64], DFWBII v CFMEU at [28] (White J). It is not necessary that the Director prove that the permit holder intended to engage in conduct having that character: Darlaston v Parker (2010) 189 FCR 1 at [54] (Flick J), Bragdon at [63] – [64], Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106] – [107] (Mansfield J).

FINDINGS OF CONTRAVENTION

113    An issue arises as to whether the Director has established to the requisite standard that Mr Sloane entered the Site with the subjective purpose of holding discussions with the Employees. The findings I have made in respect of Mr Sloane’s actual conduct once he entered the Site are relevant to that enquiry, but not determinative of it.

114    I have found that the evidence did not establish that Mr Sloane personally said words to the Employees relating to any industrial issues. However, as White J explained in DFWBII v CFMEU at [72]:

There is no reason to construe the word ‘discussions’ in s 484 narrowly. To hold otherwise would be to confine the kinds of discussions which union officials generally may have in the course of their legitimate activities. The term should be given its ordinary meaning. That includes ‘talking something over’. Even a brief conversation comprising little more than an introduction and an enquiry as to whether a worker has any concerns may constitute a discussion in the relevant sense. There is no reason to incorporate into s 484 a requirement that the discussions be of a formal kind, concern the pursuit of an agenda, or be of some minimum duration. The section itself contemplates that the discussions may be with one or more employees. A discussion with an individual employee may of necessity be brief. Section 480 contemplates that the discussions may be with potential members, as well as existing members. Discussions with such persons may be of diverse kinds, again indicating that the term should not be given a narrow meaning. Sections 132 and 194 indicate that Pt 3-4 is intended to be the only prescription with respect to workplace entry by union officials, an intention which may well be frustrated if the term ‘discussions’ was construed narrowly.

115    It may be confidently inferred that at least one of Mr Sloane’s purposes for entering the Site was to meet the Employees there and to make it known to them that he was an official of CFMEU, the organisation entitled to represent their industrial interests. He was dressed in clothing identifying himself as a CFMEU official, permitted himself to be introduced as a person working locally for CFMEU and stood in close proximity whilst Mr McDermott provided brochures to the Employees titled What Your Union Can Do For You. He greeted the Employees and engaged in friendly banter with them.

116    In those circumstances, whether Mr Sloane personally said words to the Employees concerning any particular industrial issue is not the point. At the time that he entered the Site, Mr Sloane intended to have exchanges with the Employees at least to the extent I have described. That intention is sufficient proof that he entered the Site for the purpose of holding “discussions” with the Employees within the meaning of s 484 of the FW Act, albeit discussions of a brief and introductory nature.

117    In the present case, there is independent evidence of Mr Sloane’s purposes for entering the Site, quite apart from the evidence of what actually occurred there once he had done so. As I have said, Mr Sloane gave evidence that his purpose for entering the Site was the same as his purpose for visiting other construction sites in the days that followed. He made an admission to the effect that he entered the Ibis Hotel site on Grenfell Street on 1 May 2014 for the purpose of holding discussions with other workers there. That evidence is consistent with the facts as I have found them.

118    In seeking to exercise the right of entry under s 484 of the FW Act, Mr Sloane acted in a manner that is properly described as improper. He required a right of entry in order to exercise the right, and yet he proceeded onto the Site without one. He failed to leave the Site knowing that Mr Groves had directed him and Mr McDermott to do so. He then proceeded further onto the Site knowing that he did not have the permission of Mr Groves to do so. Once on the Site, he participated in discussions with workers at times and locations other than times and places that had been agreed.

119    In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [173] – [174], White J held that the failure to provide an entry notice in accordance with s 487 of the FW Act constituted acting in an improper manner in exercising or seeking to exercise the right of entry under s 484 of the FW Act.

120    I am mindful that the failure to provide a notice of entry in compliance with s 487 of the FW Act is a circumstance that deprived Mr Sloane of the authorisation to enter the Site under s 484 of the FW Act at all: s 486 of the FW Act. In my opinion, that circumstance does not preclude the Court from categorising his act of entering the Site without such a notice as “improper” within the meaning of s 500 of the FW Act. It is sufficient to found a contravention of s 500 that the permit holder acts in an improper manner when seeking to exercise rights in accordance with Pt 3.4 of the Act, including by seeking to exercise the right of entry conferred under s 484. The word “seeking” in my opinion is broad enough to encompass a circumstance in which a permit holder purports to, or subjectively intends to, exercise a right that he or she objectively does not have.

121    There is support for that construction in the different expressions used in s 500 and s 501 of the FW Act. Section 501 (also contained in Pt 3.4) provides:

A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.

(emphasis added)

122    Where, as here, a permit holder is not entitled at all to enter premsises under Pt 3.4 of the FW Act, the occupier of the premises may refuse or delay the permit holder’s entry without contravening s 501 of the FW Act, irrespective of whether the permit holder subjectively (but wrongly) seeks to exercise a statutory right of entry that he or she does not in fact have. The provisions read together evince an intention that s 500 of the FW Act may be contravened even in circumstances where the permit holder, on an objective assessment, has no authorisation in law to enter premises, whether for the purpose of holding discussions with workers or for any other purpose.

123    The combined effect of ss 486,  487 and s 501 of the FW Act is that Mr Groves’ direction that Mr Sloane and Mr McDermott leave the Site was entirely lawful. Mr Groves was entitled to refuse or delay their entry to the Site. Mr Sloane and Mr McDermott acted in an improper manner by defying Mr Groves’ lawful direction that they leave.

124    In all of the circumstances, I am satisfied that on 28 April 2014, Mr Sloane, in seeking to exercise rights in accordance with Pt 3.4 of the FW Act, acted in an improper manner by:

(1)    entering the Site having provided no notice of entry;

(2)    failing to leave the Site notwithstanding that he was directed by Mr Groves to leave;

(3)    holding discussions with Employees at locations at the Site that had not been agreed with Hindmarsh; and

(4)    holding discussions at times not being mealtimes or other breaks.

125    Mr Sloane thereby contravened s 500 of the FW Act.

126    I am satisfied that on 28 April 2014, Mr McDermott, in seeking to exercise rights in accordance with Pt 3.4 of the FW Act, acted in an improper manner by:

(1)    entering the Site having provided no notice of entry;

(2)    failing to leave the Site notwithstanding that he was directed by Mr Groves to leave;

(3)    holding discussions with Employees at locations at the Site that had not been agreed with Hindmarsh; and

(4)    holding discussions with the Employees at times not being mealtimes or other breaks.

127    Mr McDermott thereby contravened s 500 of the FW Act.

128    Mr McDermott committed three further contraventions s 500 of the FW Act by reason of the facts I have found at [35] – [41], [42] – [44] and [45] – [56] above in respect of his attendances at the Site on 23 May 2014, 6 June 2014 and 14 July 2014 respectively.

129    Mr Cartledge contravened s 500 of the FW Act by reasons of the facts I have found at [46] – [50] and [52] – [56] above in respect of his attendance at the Site on 14 July 2014.

130    I will hear the parties as to the setting down for trial of the remaining issues yet to be heard and determined in the action.

Associate:

Dated:    21 September 2016

SCHEDULE OF PARTIES