FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 197

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

REASONS FOR JUDGMENT

NORTH J:

INTRODUCTION

1    Section 500 of the Fair Work Act 2009 (Cth) (the FW Act) provides that a permit holder exercising or seeking to exercise rights in accordance with Part 3-4 must not intentionally hinder or obstruct any person or otherwise act in an improper manner.

2    The applicant, formerly known as the Director of the Fair Work Building Industry Inspectorate, is able to apply for orders in relation to a contravention of s 500. By reason of the commencement of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) and item 19 of Schedule 2 of the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016, the applicant is now the Australian Building and Construction Commissioner. However, in these reasons for judgment the applicant will be referred to as the Director.

3    On 23 December 2015, the Director filed this application against the first respondent, the Construction, Forestry, Mining and Energy Union (CFMEU), and the second respondent, Alex Tadic.

4    The CFMEU is an association of employees registered under s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) and able to be sued in its registered name.

5    Mr Tadic is employed by the CFMEU in its Construction and General Division Victoria/Tasmania Divisional Branch as an organiser and as an occupational health and safety advisor.

6    At the time of the alleged contraventions Mr Tadic held an entry permit issued under s 512 of the FW Act, and also an entry permit under s 83 of the Occupation Health and Safety Act 2004 (Vic) (OHS Act). It was common ground that Mr Tadic was exercising or seeking to exercise rights in accordance with Part 3-4 of the FW Act and was answerable for any contravention of s 500 of the FW Act.

7    In the amended statement of claim dated 1 September 2016, the Director alleges that Mr Tadic intentionally hindered a WorkSafe Victoria (WorkSafe) inspector, Jason Sharples, and/or acted in an improper manner on 13 June 2014, at the site of the construction of the Castlemaine Police Station at 32 Templeton Street, Castlemaine (the Castlemaine site) in contravention of s 500 of the FW Act.

8    The Director alleges that the contraventions occurred during a safety walk around the Castlemaine site conducted with, inter alia, Mr Sharples, Mr Tadic and Bradley James Regan, an employee of Behmer & Wright Pty Ltd (Behmer), the head contractor on the Castlemaine site.

9    The Director also alleges that the CFMEU was liable for the actions of Mr Tadic. The Director seeks declarations of contravention and pecuniary penalties against Mr Tadic and the CFMEU.

THE PLEADED CASE

10     The conduct relied on by the Director is set out in [19] of the amended statement of claim as follows:

19.    During the Inspection, Tadic engaged in the following conduct:

(a)    Tadic refused to follow Sharples’ requests to limit his questions and comments until the end of the Inspection.

        PARTICULARS

A.    On the Castlemaine Premises, before Sharples commenced the Inspection, Tadic said to Sharples and Regan words to the effect that he wanted to walk around the site with them. After Regan agreed to that, Sharples asked Tadic to limit all comments and questions until the completion of the visit to allow Sharples to satisfy his requirements and Tadic said words agreeing to do that.

B.    During the Inspection:

i.    Tadic made derogatory comments about the site and directed things to Sharples.

ii.    Sharples repeated his request to Tadic to limit his questions and comments until the end of Sharples’ visit, said that at that time Sharples was happy to speak with him but allow him (that is, Sharples) to go through and do his job first.

iii.    Tadic said words to the effect “no problem” but shortly afterwards continued to direct many comments to Sharples during the Inspection.

(b)    Tadic made repeated demands to Sharples to close the site down.

(c)    Tadic was rude to and made derogatory remarks about Sharples by saying words to the effect:

(i)    that Sharples was the “worst inspector” that he (that is, Tadic) had seen;

(ii)    asking whether Sharples was in the “back pocket” of Regan, when he (that is, Sharples) was picking up his pay packet from them (that is, Behmer); and

(iii)    that “You are a fucking idiot. You’re an embarrassment. You’re pathetic. You’re all for the builder, nothing for the worker”.

(d)    When Sharples was not reacting the way he wanted Sharples to, Tadic:

(i)    said to Sharples said [sic] words to the effect “I’m going to fuckin’ call your boss” as he held up his mobile phone;

(ii)    in front of Sharples appeared to leave a voicemail message with someone saying words to the effect “I’ve got an inspector here, Jason Sharples. I’ve got concerns about him”; and

(iii)    was angry and behaved aggressively towards Sharples.

(e)    After the Inspection, as he was exiting the building in the presence of a group of employees, Tadic said words to the effect that he was not happy with Sharples, “This is not over” and “I’ll sort this out”.

(f)    Tadic was angry, aggressive and combative to Sharples during parts of the Inspection including in relation to the matters referred to in sub-paragraphs (a) and (e) above.

    PARTICULARS

The Applicant refers to sub-paragraphs (a) to (e) above and Tadic’s conduct during the Inspection and, in particular, the following:

A.    When the persons on the Inspection moved from the start of the construction site to the stairwell, Tadic conveyed his concerns with balustrading of the stairs in a very angry way to Sharples.

B.    During the Inspection when speaking to Sharples, Tadic swore at Sharples.

11    The alleged consequence of the conduct is set out in [20] of the amended statement of claim as follows:

(a)    Sharples considered leaving the Castlemaine Premises without completing the Insepction;

(b)    Sharples was distracted from conducting the Inspection in the manner that he wished to conduct the inspection;

(c)    Sharples’ ability to conduct a more thorough inspection of the Castlemaine premises was adversely affected;

(d)    the Inspection took longer than it would have taken if Tadic had not engaged in the conduct referred to in paragraph 19 above;

(e)    Sharples telephoned his supervisor, Peter Sullivan, to discuss Tadic’s conduct, his complaints about Sharples and his demands to close the site down; and

(f)    Sharples felt hindered in conducting the Inspection.

12    The Director further alleges that the CFMEU is to be taken to have contravened s 500 of the FW Act by operation of s 793 of the FW Act, or alternatively, s 550 of the FW Act, or alternatively, the common law.

The Evidence

Introduction

13    Evidence was given on behalf of the Director by Mr Sharples, and by Mr Regan.

14    Evidence was given on behalf of the respondents by Mr Tadic, and also by Nigel Davies, another organiser employed by the CFMEU.

15    Each of the witnesses gave an account of the events which occurred on the safety walk. In the case of Mr Regan he gave two further accounts in statements dated 18 June 2014 and 15 October 2014 provided to the Director. In the case of Mr Sharples, he gave an additional account at a compulsory examination conducted under s 45(1)(e) of the Fair Work (Building Industry) Act 2012 (Cth) by the Director on 11 February 2015. The resulting seven accounts differ, at times, in significant respects.

16    In the evidence concerning the safety walk, the witnesses referred to a number of safety issues on the site. There was exposed electrical wiring hanging from the ceiling immediately outside the smoko room. The place adjacent to one of the access/egress points from the site was obstructed. A handrail to prevent people falling down three metres onto the entrance driveway was loose. There was building rubbish throughout the site. The surface of the driveway was wet and slippery. Throughout the site the lighting was inadequate. The tagging of the electricity supply in the toilets was out of date. And finally a heavy pane of glass was not secured and presented a risk of falling.

17    This section of these reasons for judgment, dealing with the evidence in the proceeding, commences with an assessment of the general reliability of the evidence of each of the witnesses. Then, the reasons outline the material evidence concerning the lead up to the safety walk. Finally, in this section there is an outline of the material evidence concerning the events of 13 June 2014.

Some observations concerning the reliability of the evidence of the witnesses

Mr Regan

18    Mr Regan started work with Behmer as a site manager in February 2014. In June 2014, he was the site manager for the building of the Gisborne Medical Centre.

19    Mr Regan had met Mr Davies three times before 13 June 2014, namely, in March 2014, in April 2014 and on 12 June 2014. At the second meeting Mr Davies asked whether Behmer had an enterprise bargaining agreement with the CFMEU. Mr Regan replied that the company advised him that it does not discuss that sort of issue. On 11 June 2014, WorkSafe conducted a routine inspection of the Gisborne site and identified a number of issues requiring attention. On 12 June 2014, Mr Davies turned up at the Gisborne site without notice. Mr Regan had to cancel a dental appointment in order to attend to Mr Davies’ visit. Mr Regan said that the circumstances of this visit caused him frustration with Mr Davies. Anthony Bortolotto, the Behmer construction manager, told Mr Regan to call the police in response to the visit. Mr Regan did not do so, but called what he referred to as the Fair Work Building and Construction Commission to report that Mr Davies had been on site.

20    When Mr Regan was told to attend the Castlemaine site on 13 June 2014, he was, as a result, not able to attend an important meeting scheduled for that day with the Mayor of Gisborne and other VIPs at his Gisborne site.

21    The Castlemaine site was not Mr Regan’s site and yet he was confronted with a number of serious safety issues in the absence of the usual site manager. He was forced to deal with problems which were not of his making.

22    Mr Regan had the view that Mr Tadic and Mr Davies had no right to be on site without an escort, and preferred that they were not on site. He had had little to do with unions.

23    The evidence of Mr Regan concerning the safety walk painted a picture of extraordinary and persistent aggression, of yelling and screaming and explosive reactions, all accompanied by constant swearing by Mr Tadic. He said that Mr Tadic spoke “like crazy.” Mr Regan said that at the same time he was attempting to be conciliatory, and Mr Sharples was speaking very low key.

24    The picture portrayed by Mr Regan was of such extreme behaviour by Mr Tadic and such benign behaviour by Mr Regan and Mr Sharples that it was, in all the circumstances, improbable.

25    The earlier descriptions of the events contained in Mr Regan’s two statements to the Director did not have the intense colouring of the evidence which he gave in Court. In cross-examination Mr Regan conceded that maybe the words that he said were used by Mr Tadic were not exactly the words used, but the intent was in accordance with his evidence.

26    The evidence establishes that Mr Regan bore an animosity towards Mr Tadic and Mr Davies arising from his employer’s attitude towards the union, his past negative experiences with Mr Davies, the fact that he had to miss an important meeting concerning his own site, that he had to deal with a site with problems which were not of his making, that those safety issues were significant and that Mr Tadic directed his frustration about the state of safety on site, in part, towards Mr Regan and did so in a forceful way.

27    That animosity explains why the evidence of Mr Regan, in part, exaggerated the conduct of Mr Tadic and, in part, attributed to Mr Tadic conduct which did not occur at all.

28    The manner in which Mr Regan gave his evidence, a factor which alone would not be influential, confirms the view that Mr Regan had a strongly negative attitude towards Mr Tadic.

29    Furthermore, the evidence of Mr Regan is of limited value because much of it, although not all, was evidence about Mr Tadic’s conduct directed to him, whereas the allegations of contravention concerned conduct directed to Mr Sharples. For instance, Mr Regan said “Nigel and Alex … got into me saying that it was fucking hopeless and another fucking reason, you know, just continually was bang bang bang all the time, you know.” And “you’re just continually bashing the shit out of me, you know … yes, I – I had copped the whacks because the site wasn’t safe in – in – you know total respect.” [Emphasis added.] And see also the observation made by Mr Sharples extracted at [143] of these reasons for judgment. That Mr Regan was focused on what was said to him is revealed by the fact that he did not include in his description of the events which occurred, one of the most important complaints made by Mr Sharples, namely, that Mr Tadic called Mr Sharples the worst inspector he had ever seen.

30    It follows that much of the evidence of Mr Regan is unreliable. I do not base findings on his evidence unless corroborated by some other reliable evidence or admissions.

Mr Sharples

31    Mr Sharples started work as a Field Inspector F1 with WorkSafe in the Bendigo office on 16 November 2012.

32    The way Mr Sharples experienced and hence recollected the events of the safety walk was conditioned by several factors.

33    In the course of the examination by the Fair Work Building Industry Inspectorate, in response to one of the interventions by the Director, Mr Sharples said that he is not easily intimidated because he had worked in a maximum security jail for 13 years. In response to questions from the Court he explained:

Maximum security section of the Alice Springs jail would have had around 50 prisoners in one block. At that stage in the Northern Territory life meant life. There was no parole date. At that stage the life sentence prisoners were largely uncontrollable but controllable. They were aggressive. They had nothing to lose. They had no – no expiry date, as such, for their sentence.

…

[W]ere the officers themselves the subject of violence or threats of violence? --- Yes, they were, your Honour.

On what sort of a basis – daily, weekly, you know, was it unusual or --- ? --- When I answered that question I – there was a segregation unit where if someone was disciplined within the prison system they were sent to, sort of an isolation unit. Prisoners there would certainly be heightened in emotion, and they would throw abuse at the officers that were either searching them, searching their cell, removing contraband, engaging with them generally. Yes, we had a few that were a bit colourful, in so much as they would throw a cup of urine at you. They would do what we would call “bronze up”. I think you can imagine what that would be.

34    After leaving his job as a prison officer, Mr Sharples worked in Alice Springs as a liquor licensing inspector. That required him to enforce drinking bans in hotels where he often saw violence, fights and arguments, although not directed at himself. Later in these reasons for judgment I explain why Mr Sharples was not appreciably affected by the robust behaviour of Mr Tadic.

35    Then, at the time of the safety walk, Mr Sharples was inexperienced as a workplace inspector. He started work with WorkSafe on 16 November 2012, just over 18 months before the safety walk. Although he had done around 500 work site visits in the period before the safety walk, he had only done 12 to 14 inspections on commercial building sites. In each of those he was mentored by Peter Sullivan, Mr Sharples’ F2 supervisor. Commercial construction inspections were generally reserved to Mr Sullivan. Additionally, this was the first time Mr Sharples had done a safety walk with a union official present.

36    I find that Mr Sharples felt most uncomfortable at the end of the safety walk when Mr Tadic rang Allan Beacom, the WorkSafe Construction Manager, to complain about Mr Sharples’ conduct of the inspection. Mr Sharples acknowledged that the various safety issues drawn to his attention were serious safety risks. When Mr Tadic rang Mr Beacom, Mr Sharples asked himself whether there “could be an element of truth what Mr Tadic is saying … have I done something wrong.” Similarly, when Mr Tadic called him the worst inspector he had ever seen, Mr Sharples was disconcerted and, understandably, concerned about his reputation with a senior officer of WorkSafe.

37    These factors meant that when it came to giving evidence against Mr Tadic, Mr Sharples was not prone to paint the picture any more favourably to Mr Tadic than was necessary. Having said that, Mr Sharples presented as a conscientious person who, if it was suggested that he had exaggerated the picture, was prepared to accept that fact and concede the point. He did not exhibit the animus against unions generally, or Mr Tadic in particular, which was the hallmark of Mr Regan’s evidence.

38    A number of illustrations of these matters will be referred to later in these reasons for judgment. But for present purposes, by way of illustration, it is sufficient to refer to Mr Sharples’ evidence in cross-examination in which he conceded that he did not positively recall Mr Tadic calling him “a fucking idiot”, and that he was not sure of the place where Mr Tadic called him the worst inspector.

39    There were some important instances where Mr Sharples’ evidence was confused or inconsistent. They will also be referred to later. But generally I take his evidence to have been given honestly even if, as will be shown, at times mistakenly.

Mr Tadic

40    Mr Tadic has spent his entire working life on construction sites and has worked as an occupational health and safety advisor for the last nine years. He said, and Mr Sharples acknowledged, that Mr Tadic has a passion for the work he does. He is not concerned with the industrial conditions side of union activities. Ninety-five percent of his site visits are done at the invitation of employers who “don’t really need paperwork.” Mr Tadic conducts about 300 site visits a year. Thirty or forty of those visits are conducted with a WorkSafe inspector. Mr Tadic is a very experienced safety officer with a keen sense of the importance of safe working conditions on building construction sites.

41    The evidence of Mr Tadic has an air of authenticity. Unlike the evidence of Mr Regan and Mr Sharples, the motivating factors for Mr Tadic’s conduct are exposed and openly acknowledged by Mr Tadic.

42    The first motivating factor is that Mr Tadic assessed that there were serious safety dangers to building construction workers on the Castlemaine site. It was not in contest between the parties that the safety issues existed, although there were differences in the assessment of the seriousness of the dangers.

43    I accept Mr Tadic’s view that the faulty handrail was an immediate risk to the safety of people using the thoroughfare. A fall of three metres to the lower level through the handrail onto the driveway below could have resulted in catastrophic injury or death. Mr Sharples thought that it was unlikely that someone would put their weight on the handrail because, whilst he was there, nobody did that. Mr Sharples thought that a construction worker would not put his weight on a temporary balustrade. That, however, is not to the point because the handrail is required to protect people from falling even if they trip, or accidently come towards the ledge.

44    The insufficiency of the lighting, I find, was also a major safety defect in the site. I accept Mr Tadic’s assessment that it was an immediate risk to the safety of people on the site. Some parts of the site, particularly in the corridor areas, were dark, because there was little or no daylight there. There is an obvious need for efficient lighting on a large construction site like the Castlemaine site. The lack of proper lighting was especially dangerous on that site because the site was strewn with building debris thereby creating trip hazards. Construction workers carrying heavy and sharp tools were exposed to the risk of injury as a result of the lack of proper lighting.

45    The degree of poor housekeeping was a third major safety concern of Mr Tadic. Neither Mr Regan nor Mr Sharples challenged the substance of Mr Tadic’s judgment on that issue.

46    When there is added to these major safety concerns the danger that the glass pane might fall, the exposed electrical wiring, the slippery driveway, the rubbish in the adjacent access area and the failure of the builder to provide timely electricity safety testing it can be seen that Mr Tadic’s concern about safety issues on site was justified. Further, I find that his assessment of the degree of danger of these issues was soundly based on long experience. There was no suggestion that Mr Tadic targeted the site for any reason other than the concern about safety.

47    The second motivating factor which Mr Tadic made clear was his view that Mr Sharples was not responding to the safety issues seriously enough. In particular, he gave evidence that Mr Sharples gave Mr Regan a week to rectify the handrail and the lighting issues. Mr Tadic thought that this was unacceptable. From this, Mr Tadic concluded that Mr Sharples was exhibiting a preference for the builder over the safety of workers and others on site. Later in his evidence Mr Tadic explained that he did not appreciate at the time of the safety walk that Mr Sharples’ failure to address the safety issues seriously enough was probably a result of his inexperience. Mr Tadic accepted that in his frustration on the safety walk he called Mr Sharples the worst inspector he had seen and told him that he was pathetic. Mr Tadic followed this up by calling Mr Beacom to complain about Mr Sharpes’ conduct on the safety walk and by making a written complaint to WorkSafe about Mr Sharples. Mr Tadic told Mr Sharples what he was doing. These were actions, I find, by which Mr Tadic responded to serious safety issues which he regarded Mr Sharples failed to take seriously enough.

48    Mr Tadic accepted that he raised his voice and swore, but said that he was not nasty or aggressive in so doing.

49    Thus, the picture presented by Mr Tadic was of a very experienced safety official responding directly and energetically to an inexperienced inspector whom he regarded, with good cause, did not respond appropriately to the seriousness of the safety risks.

50    Mr Tadic was direct and forthright in the way he gave his evidence. He did not shy away from making concessions even though they might have damaged his case. Where he was uncertain about the sequence or locality of events or the details of conversations, he said so. I formed a favourable view of Mr Tadic and the accuracy and honesty of his evidence as a whole. In the case of conflict, Mr Tadic’s version of events should generally be preferred over the version provided by Mr Regan or Mr Sharples.

Mr Davies

51    Mr Davies gave evidence in a straightforward and open way. He presented as a patient and laconic man. His evidence is somewhat limited in usefulness because he did not recall some of the details of the safety walk and sometimes he was not present when relevant events occurred. Furthermore, he played a secondary role in the incidents in question. Although some of his inability to recollect details or absences might be viewed as convenient, I am persuaded that his evidence was genuine and not contrived to suit the case of the respondents.

52    Mr Davies did not at first mention in his evidence that Mr Sharples gave Mr Regan a week to fix the handrail. He remembered that fact overnight after commencing his evidence the day before. He sought to add to his evidence in this regard on the following day. He said, and I accept, that he did not speak to Mr Tadic on that topic overnight. Although the delay in recalling that evidence might be viewed as calling into question the veracity of the evidence, I am satisfied that Mr Davies just forgot to say it on the first occasion. His manner in explaining his recall of the fact was guileless and convincing.

53    It is significant that Mr Davies did recall some of the central elements of the safety walk adverse to the respondents’ case such as Mr Tadic telling Mr Sharples he was the worst inspector, and Mr Tadic saying to Mr Sharples that he would ring Mr Sharples’ boss.

54    The way Mr Davies described the volume and general nature of Mr Tadic’s interactions with Mr Sharples, and the amount of swearing by Mr Tadic a level headed and credible picture free of the exaggeration which marked the descriptions provided particularly by Mr Regan, but also, although to a lesser extent, by Mr Sharples.

55    On the whole I regard Mr Davies as a reliable and honest witness.

The lead up to the safety walk

56    Mr Davies was an organiser for northwest Victoria from late November 2013. In that position his main job was to negotiate agreements and particularly to address wages issues. Where matters of safety arose Mr Davies called upon the expertise of Mr Tadic. By June 2014 they had worked together on about 20 – 30 site visits.

57    On 13 June 2014, Mr Davies and Mr Tadic visited the Loddon Prison construction site in Castlemaine at about 6.30 am. Then they drove past the Castlemaine Police Station site at about 7.00 am. It was winter time and they noticed that the lighting at the site was not adequate, and also that there was no defined access / egress on the site.

58    Mr Davies then started to fill out a notice of suspected contravention under s 88(1) of the OHS Act. That was a prerequisite for the right to enter the site.

59    Mr Davies and Mr Tadic then entered the site in order to give the notice to the person in charge. They ultimately located John Bridges. He said that the site supervisor was on holidays but that he was acting as the supervisor. He said that he was also the health and safety representative. Mr Tadic said to him that there was a conflict of interest between those two positions. Mr Bridges appeared to be nervous and said that he had to make some phone calls.

60    Shortly afterwards the police arrived. They told Mr Tadic and Mr Davies that they had received a phone call alleging that Mr Tadic and Mr Davies were trespassing. Mr Tadic and Mr Davies explained that they had the right to be on site but they agreed to stay in the smoko room until a representative of the builder arrived. Then, around 8.30 am, after the police left, when the WorkSafe advisor line opened, Mr Tadic rang WorkSafe. He explained why he called WorkSafe thus:

And the reason I called WorkSafe in that scenario is because to me once a builder says, “We’re calling the police,” that clearly states they don’t want to fix the issues; they just want to get you off site. So to diffuse [sic] the issue you call the regulator. They come out and basically say, “They actually are allowed to be here legally, and we need to address the safety issues”.

61    The WorkSafe complaints record shows that the complaint was made by Mr Tadic at 8.43 am and related to the following seven issues (the seven issues):

    No supervision on site as supervisor is on a weeks holiday

    HSR [Health and Safety Representative] is the person given the role of a supervisor

    Poor access & egress on the site

    Poor housekeeping

    Insufficient lighting on site at start of shift

    Excess water on site

    Insufficient power boards on site

62    On 13 June 2014, Mr Sharples was in the office in the morning and intended to take the afternoon off and go to the football in Melbourne. His group leader told him of the service request for the site and asked if he would attend to it on his way to Melbourne. Mr Sharples agreed and he received the complaint recording the seven issues by email. Mr Sharples arrived at the site at about 10.45 – 11.00 am. He had inspected the site with Mr Sullivan for about fifteen minutes about three months before.

63    On 13 June 2014, Mr Regan was expecting the Mayor of Gisborne and some other VIPs to visit at about 11.00 am concerning the opening of the site. He said that this was to be an important meeting. Early in the morning Mr Regan was on the way to the dentist when he received a call from Mr Bortolotto, asking him to go to the site in Castlemaine because there was an issue with the CFMEU. Mr Regan arranged for someone else to deal with the Mayor and the VIPs. After going to the dentist and returning to the Gisborne site for a short time, he went to the Castlemaine site arriving at about 11.00 am.

The safety walk

64    Mr Regan said the site was “a massive site” of over 3000 square metres. The original police station was in a heritage building and the construction work involved a large expansion around the original building. The smoko room, kitchenette, and site office were in the old heritage building.

65    Each of the witnesses gave an account of what occurred on the safety walk. It is now necessary to examine that evidence.

The Evidence of Mr Regan

Evidence in Chief

66    The Castlemaine site was not Mr Regan’s site. He had not been there before and was not familiar with it.

67    When Mr Regan met Mr Tadic and Mr Davies on site he asked for their entry permits. He said that his employer does not have much to do with unions so “obviously they need to produce their documentation for being on site”.

68    Mr Regan said that he, Mr Sharples, Mr Tadic, and Mr Davies went from the kitchenette to an adjacent access point. Mr Tadic said that the access point was confusing because it was adjacent to another access point and, further, men were working in the area in a way which impeded access at that point. Mr Regan said that Mr Tadic was “very demanding”, “very aggressive”, “yelling and screaming”, and saying “it’s not fucking good enough”. Mr Regan said that Mr Tadic was loud enough that workers on the site started to take notice.

69    Mr Sharples and Mr Regan agreed that the adjacent access was not “the best”, and Mr Regan arranged for Mr Bridges to close it off.

70    At that stage Mr Davies was saying similar things. Mr Davies and Mr Tadic had a lot of issues with the site and Mr Tadic said “it should be shut down”. On that issue the following exchange took place:

Well, what comments do you remember him saying about shutting down? --- Well, it was the whole place, in his opinion, was untidy and that it needed to be addressed, and if it couldn’t be, it should be shut down, but not a construction [sic] way of dealing with it.

71    Things were “heated” at this point.

72    Between the adjacent access point and the next point of interest, the courtyard, both Mr Tadic and Mr Davies were interjecting all the time in an aggressive, loud and demanding manner.

73    At one end of the courtyard was a handrail which was meant to protect people from falling to the lower level, a drop of about three metres. Mr Tadic said that the handrail was not adequate. Mr Regan said that Mr Tadic “then just exploded”. Mr Regan explained:

Alex is yelling at me, at Jason, saying that this is crap, you know, that you should be disgusted in yourselves the way this is, and then proceeded, you know – because Jason is talking to me, saying, “Well, look, you know, maybe we need to have a look at this.” All of a sudden, Alex has just jumped in and gone, “This is fucking shit”, you know, like it’s all – you’re all – and directing this at Jason, “You’re all for the fucking builder. You’re not for the bloody bloke on site,” you know, this is crap, you know, and getting very, very heated …

74    Mr Regan said that Mr Tadic spoke “very aggressively”, “extremely loud, like crazy, like explosive”, in an “eye-popping” manner. Mr Regan further explained:

Alex himself went over to the handrail and rattled the crap out of it trying to make it, you know, show that it was unsafe.

75    At the same time, Mr Regan said that he was trying to be conciliatory, and Mr Sharples was speaking “very low key”.

76    Mr Tadic kept saying that he wanted the job shut down. Mr Regan described the situation in the following exchange:

And how did he say that? --- Well, “It should be fucking shut down”, you know, “This is not good enough. It’s hopeless. It’s bullshit. The job is not tidy enough. It’s not clean enough. It’s just all of the above, and you guys should be fucking disgusted.”

77    Mr Regan described what Mr Tadic said to Mr Sharples:

[H]e then started basically attacking Jason on his – you know, saying that he was not good at his job, you know, telling that he was – he was useless, a disgrace, you know, pathetic at what he was doing…

…

Just that he was a fucking disgrace, he was an embarrassment, he shouldn’t be in the fucking industry, get out of it, you know, and, you know – and I think at that stage there he was going to make a phone call to Jason’s superior because he wasn’t happy with the response that he was getting from Jason.

78    At this same point, Mr Tadic indicated that the driveway below the handrail area was not safe. It was steep and men brought tools and material down the driveway to access the lower level of the construction site. Mr Regan agreed that it needed attention and arranged for crushed rock to be delivered. Mr Regan said that he could not “honestly remember” Mr Tadic’s comments about the driveway.

79    Then, at the top of the stairwell leading to the lower level from the corridor along the western side of the courtyard Mr Davies raised the issue of inadequate lighting. Mr Tadic had gone down the stairs. When he returned “it was back in the same routine of yelling and screaming and demanding that it be fixed”. Mr Regan said that Mr Tadic said, “From another point of view it’s another reason to shut this job down.” Mr Regan said that Mr Tadic spoke at volume and aggressively.

80    Mr Regan said that the complaint about the lighting raised at that point was a valid one. He agreed that at the start of work the place was dark. He agreed that this was an issue throughout the site and needed to be addressed.

81    Mr Tadic also complained at that point that the electricity supply to the toilets had not been inspected recently as required. Mr Regan said that Mr Tadic was “yelling and telling me it needed to be done.” Mr Regan later had the electricians go around and do the required testing.

82    When Mr Regan was asked to describe Mr Sharples’ behaviour at that location, he said that “nine times out of 10 he was directly behind me”. Mr Regan explained what he meant in the following exchange:

HIS HONOUR: Using you as a human shield?---Basically, yes. That is exactly what I’m trying to say.

83    Then, Mr Regan said that the group walked around the courtyard to an area on the eastern side near the lift well. A 140 – 150 kg pane of glass was leaning up against the wall. Mr Regan explained to the Court:

But this was a matter that was raised by Jason, not by - - -? --- Yes, I think from memory, it was Jason, but at that stage then, once again, you know, Nigel and Alex got into it, got into me, saying that it was fucking hopeless and another fucking reason, you know, it just continually was bang bang bang all the time, you know.

84    Mr Regan gave evidence that the glass panel needed to be barricaded off.

85    Asked what he recalled about the glass panel, the following exchange occurred with Mr Regan:

MR STAR: … what is your recollection of what happened around the glass panel area? --- Same volume of intensity of demanding of fixing the problem, saying that it needs – the job needed to be shut down.

And how was Mr Tadic saying that? --- Aggressively.

What language was he using in this area? --- Same volume and aggressiveness and, you know, fucks and shits and not adequate – the same things he had on every other point.

86    From this area the group went to the north-east corner of the site past the control console, before doubling back to the smoko area in the heritage building.

87    Mr Regan explained that he tried to get Mr Tadic and Mr Davies off the site so that he could deal with Mr Sharples and address the issues. He explained:

You know, like, at every time I just tried to do something, whack on the head again by the union saying this is a problem. And I think I said to them at some stage, like, “For Christ sake, can you guys just – just backed [sic] off, I could address these issues and make the site safe, but it’s not happening, you know. You’re just continually bashing the shit out of me, you know. And I’ve got another party here as well that it could have been just done fairly harmoniously.” Yes, I – I had copped the whacks because the site wasn’t safe in – in – you know, total respect. But if – if they had have let it go a bit, you know, de-tuned it and I could have actioned it there and then.

88    Mr Regan then said to Mr Tadic and Mr Davies that the safety walk was over and they should leave. He asked them to sign out. On his way out Mr Tadic said:

“This is not finished.”

89    Mr Sharples remained on site to write his report and to issue two improvement notices which he gave to Mr Regan.

Cross-Examination

90    Mr Regan said that he believed at the time of the safety walk that Mr Tadic was not entitled to be on site without an escort. He also said that he preferred that Mr Tadic and Mr Davies were not on site but denied that he was hostile to their presence.

91    On 18 June 2014, Mr Regan made a statement to Christopher Biggs, a Fair Work Building Inspector. As to the events concerning the safety walk he stated:

81.    Both Nige and Alex were very disrespectful to me and Jason. Alex was getting aggressive and rude, losing his temper, swearing and raising his voice.

82.    Alex said to Jason, “you are a fucking idiot. You’re an embarrassment. You’re pathetic. You’re all for the builder, nothing for the worker.” In my opinion Alex lacked self-control.

83.    Alex said to me, “You could have stopped guys from working, stopped the job.”

84.    I said, “Why? If you guys stopped this crap, I could get on to fixing the issues that have been identified.”

85.    Alex said to Jason, “You should be shutting this down.”

86.    Jason said, “There is nothing here that needs me to shut the job down. And you don’t tell me what my job is.”

92    Mr Regan made a supplementary statement on 15 October 2015. In this statement Mr Regan traced the path of the safety walk and commented about each stop on the walk.

93    At the adjacent access point, Mr Regan said in his second statement that Mr Davies and Mr Tadic were “generally acting aggressively and being demanding”.

94    In his second statement Mr Regan said at [32]:

I found the behaviour of Davies and Tadic, especially of Tadic, very heated and hostile throughout the entire site walk-through. This behaviour was sporadic and reached highs and lows during the site walk-through. It reached a high-level of intensity when we addressed a handrail at location “C”.

95    Mr Regan then said that the comments referred to in [81] and [82] of his first statement happened at the handrail area. The comments referred to at [83] to [85] of his first statement also happened at the handrail area in the course of a discussion about the driveway area below. Mr Regan’s second statement included at [40]:

Around this time Tadic made the comments to Sharples in paragraphs 83 and 85 of my First Statement. It appeared to me because Tadic wasn’t getting the support from Worksafe that he wanted, that these things were not major catastrophes, he was trying to ramp things up and trying to persuade Sharples to his way of thinking.

96    Mr Regan identified the places on the safety walk where the issues of lighting, the glass panel and the electricity supply to the toilets were discussed.

97    In cross-examination Mr Regan was asked why he had not included in his statements some of the conduct of Mr Tadic which he related in his oral evidence to the Court. He explained:

Because maybe at that particular time I didn’t remember it, or maybe now the words that I’m using are not exactly the words that were used, but the intent of what was being said at the time was.

98    He accepted that his best recollection was what he had said in his two written statements.

The Evidence of Mr Sharples

Evidence in chief

99    Mr Sharples said that before the safety walk commenced, he and Mr Tadic discussed how the safety walk would be conducted as follows:

He started to raise some concerns, and I asked that he keep his questions and comments to a minimum until such time as I completed the inspection and then I could answer his concerns at the completion of that, and I was happy to do that.

100    Mr Sharples said that Mr Tadic was animated at the adjacent access point at the beginning of the walk. Mr Tadic said that there was excess debris lying around and it was not good enough. Mr Tadic was passionate about what he was saying. The issue of lighting was also raised. Mr Tadic said it was poor and insufficient. Mr Tadic said that the site should be closed because it was dangerous. Mr Sharples said about Mr Tadic at this point:

He was quite aggressive in speech. He has quite a look about him, quite an intimidating look, and I believe that that look and that speech and those mannerisms of the raising of the hands was intended to intimidate me at the time, and I felt a bit concerned that he was perhaps a little bit over passionate about the incident – or not about the incident, about the issue …

101    Mr Sharples gave the following evidence of what he said to Mr Tadic at this point:

I then asked him again to keep his comments and questions to a minimum until such time as I had finished the inspection to allow me to continue my work. My view was he was a visitor.

102    Then, at the handrail, Mr Sharples said that Mr Tadic was angry and that this was “the height of it all.” He explained:

He was loud in his speech. His speech was a great deal louder. He has an awful glare and it cut right through me. He looked at me and – and – to try and get his point across, and it worked. He would glare, and then he walked past me. He grabbed the balustrade and “This is what I’m fucking talking about” and he grabbed it and he shook it. And it concerned me and – well, his point was quite valid and I thank him for that. But it was the projection of that, of how that was given to me. It was concerning at the time. It was then I realised, and I think I may have even said again, sir, that, “Please keep your comments and your questions again.” – I know I said this a number of times. At one point there he became quite angry with that request.

103    Mr Sharples said “I felt quite intimidated by [Mr Tadic’s] actions at that point.”

104    Mr Sharples said that he believed that Mr Tadic concern was escalating because of Mr Sharples’ inaction. Mr Sharples described what Mr Tadic said to him:

I’m the fucking worst inspector he has ever seen. He made derogatory comments about the site, about, “This is the fucking shit I’m talking about.”

…

I can’t remember if he said, “I’ve had a fucking enough of this,” or “I’m going to sort this out. Yes, I’m going to call your boss.” And he grabbed his phone and turned his back to me. He was probably about a metre and a half away from me. I believe he made a phone call.

105    He explained further:

Exactly what he said I couldn’t remember, your Honour. It was, “You’re the worst fucking inspector I’ve ever seen. This – you’ve got to fucking close this site.” His passion was just overflowing. It was fantastic. I really appreciate what he was trying to get to. “That’s what I’m fucking saying. This balustrade is dangerous.” And he was deadest [sic] right. It was dangerous. And the lighting was awful. He was louder. His mannerisms and his postulations were of – of someone who was incredibly frustrated. His frustration and anger was boiling – you could see it was over, and I really liked that, but when it was directed at me I didn’t like that at all.

106    Mr Sharples said that when Mr Tadic rang Mr Beacom, he considered walking out and leaving because he was “a bit shaken by it all”. He questioned whether “there could be an element of truth what Mr Tadic is saying … have I done something wrong”. Mr Sharples said that while Mr Tadic was on the phone to Mr Beacom, he looked directly at Mr Sharples:

On a scale of one to 10, Mr Tadic’s stare and his glare was certainly intense, sir. I was very, very intimidated by it. Not his physical stature. Certainly by his look.

107    Mr Sharples explained that Mr Tadic directed further insults to him and explained the effect as follows:

You said that all the insults got rolled into one. Well, what were the insults? --- I believe I was called an idiot at one point, a fucking idiot, the words “fucking inspector” saying before he grabbed his phone, “I’m going to fucking sort this out”. You know, generally, “I can’t fucking believe this”, and his hands are up in the air. You know, I was more worried about pissing him off than anybody else. I was more worried about him than doing the visit, and that’s not the way it should be.

108    Mr Sharples further explained the effect of Mr Tadic’s comments as follows:

Mr Tadic didn’t have my complete focus; in fact, he may have had 50 per cent of my focus, which made it really hard for me to do what I had to do and get the answers out of Mr Regan.

109    Mr Sharples said that Mr Regan did not contest any of the safety issues raised.

110    Mr Tadic also said “are you in the back pocket of the builder”. This was said louder than speech. Mr Sharples said that it affected the way he did his job. He said:

I wasn’t as thorough as I normally would. … I rushed my decisions. I rushed how I would normally approach it, your Honour. I found myself wanting to get out of there. I didn’t want to be in that environment anymore.

I mean I didn’t go through the whole site. … I just wanted to get the – get out of there. … I was really concerned that I was perhaps doing something wrong.

111    Mr Sharples said that this was the first time he had the complainant on site with him during an inspection.

112    Mr Regan agreed with Mr Sharples that the driveway was “quite dangerous” and “certainly a hazard”.

113    Then, the safety walk moved to the pane of glass area. Mr Tadic raised with Mr Sharples that the pane of glass was:

[A]n example to how bad and poorly the site was, his intent was – was fantastic, and it was true that it was – it could have been a hazard.

114    Mr Tadic said “this is what I’m fucking talking about. Look at this fucking thing”. Mr Sharples did not think it was an immediate risk to safety and was satisfied that the area could be taped off until sub-contractors could attend to move it two or three days later on the following Monday or Tuesday. Mr Sharples thought that Mr Tadic was happy with that.

115    Throughout the safety walk Mr Tadic said he wanted the site closed. Mr Sharples said that he told Mr Tadic “in no uncertain terms” that he was not going to close the site.

116    Mr Sharples thought the safety walk took about two hours. He said it would have taken a lot longer if Mr Tadic had not been there because he would have surveyed the whole site rather than only the seven issues. If Mr Tadic had not been there it would have taken “a little bit more time” to complete the seven issues about which the original complaint was made.

117    At the end of the safety walk, in the smoko room, Mr Tadic said in an aggressive and intimidating tone “this doesn’t end here. I’ll sort this out”.

118    Then Mr Sharples wrote an entry report and two improvement notices in the smoko room, and gave them to Mr Regan.

119    The entry report described the safety issues observed by Mr Sharples on the site, namely, obstructions of the adjacent access area, the danger of the main driveway, excess debris throughout the site, insufficient lighting, excess water on the site, insufficient power boards on the site, inadequate balustrading, unsafe storage of the large pane of glass, and exposed wires in the main office area.

120    The improvement notices were served under s 111 of the OHS Act and indicated that a body corporate which fails to comply with a notice is liable to a penalty of up to $360,900. One improvement notice related to the failure to ensure safe access and the other to the failure to ensure safe conditions on site. Both notices required the builder to remove excess debris and materials from work and access areas and ensure the ground and floors are clear, level and dry, and to complete this work by the end of the day.

121    Whilst Mr Sharples was preparing his entry report, he called Mr Sullivan. Mr Sharples explained why he phoned:

Because I was really, really worried about the visit. I was sort of seeking a bit of validation about, is this normal practice to receive this sort of abuse, to – and I had not seen it before and I had not come into contact with any CFMEU union reps – just to try and get a clear indication of whether or not I had received some extraordinary treatment or not.

122    One week later Mr Sharples returned to the site with Mr Sullivan to check that the issues had been rectified. Mr Sharples explained that the reason Mr Sullivan attended the site with him was:

Again, for validation. I wanted to ensure that my decisions that were made at the time were correct…

Cross-examination

123    Mr Sharples believed that he had the power as an inspector to ask a person inhibiting a safety walk not to accompany him. The particular safety walk was the first time he had anything to do with a union on a site.

124    Mr Sharples said that if he felt inhibited as an inspector or if anyone made a threat against him, he would record that in the notes on the entry report.

125    Mr Sharples said that when the group was at the adjacent access point things were quite good and he could not recall Mr Tadic swearing at that point and thought he probably did not.

126    Mr Sharples did not regard the handrail as an immediate risk to safety but accepted that the consequence of a fall from there would have been catastrophic, and potentially fatal. He thought that would not happen because workers would not put their weight on a temporary handrail and no worker was observed to do so in the 15 – 20 minutes that Mr Sharples was standing there. The handrail was in a well-used access area.

127    Mr Sharples said that he did not recall Mr Tadic saying “it’s not fucking good enough” at the handrail but he believes that it was said.

128    Mr Sharples said that he told Mr Tadic to keep his comments to a minimum more than twice. His statement during the compulsory examination that it was said only twice was wrong. Mr Sharples said that he did not remember more or less of the events of the safety walk at the time of the compulsory examination than when he was giving his evidence.

129    Mr Sharples was asked why he gave evidence that he felt intimidated yet he said in the compulsory examination that he was not that easily intimidated. Mr Sharples clarified that he meant he was not physically intimidated by Mr Tadic, but that he was certainly verbally intimidated by Mr Tadic. He said there was no reason he did not say in the compulsory examination that he felt verbally intimidated.

130    Mr Sharples did not positively recall Mr Tadic calling him a fucking idiot. He was not sure of the point at which Mr Tadic called him the worst inspector, that is to say whether it had occurred by the time the handrail was discussed. Mr Sharples did not recall whether Mr Davies raised an issue about dust from a timber cutting operation. Mr Sharples did not recall whether there was an issue about back-up lighting, but he did recall an issue about the brightness of the lighting on the site. Mr Sharples did not recall whether Mr Tadic said that the men should stay in the shed until the issues were fixed. He did not recall if Mr Davies raised the issue about the pane of glass.

131    Mr Sharples explained that his work was primarily on non-commercial sites. Mr Sullivan had been with WorkSafe for 20 years in Bendigo and preferred to do the commercial sites. They are larger and more detailed. In his first 18 months as a WorkSafe inspector, Mr Sharples had inspected about 12 commercial sites prior to the Castlemaine site.

132    Mr Sharples was asked about his statement at the compulsory examination that Mr Tadic had not hindered his ability to work on the seven issues in the original complaint. Mr Sharples did not contradict his prior statement but said that Mr Tadic certainly affected his ability to work on those seven issues.

133    Mr Sharples left the site at 3.15 pm. He agreed that there was nothing stopping him inspecting the whole of the site after Mr Tadic and Mr Davies left. He said he chose not to.

134    Mr Sharples said that the inspection took a lot longer than it should have. However, he could not positively recall how long the inspection had taken, nor could he say how long it should have taken. Mr Sharples then said that the safety walk probably did not take longer than it should have because he rushed some issues. When asked why he said at the compulsory examination that the safety walk took longer than it should have, he responded as follows:

All right. So I believe it took longer. I certainly believe that my focus wasn’t with the job. I don’t believe I was as thorough as I could have been. I apologise for the confusion, but – yes – I would say it certainly took longer to do the walk through.

135    Mr Sharples agreed that one of the reasons the inspection may have taken longer than it otherwise would have was because Mr Tadic drew attention to issues that were not in the original complaint. Mr Sharples agreed that it was perfectly proper for Mr Tadic to do so.

136    Mr Sharples did not make any formal complaint about Mr Tadic’s conduct on that day. He did not take any further steps in relation to Mr Tadic’s conduct until he was contacted by the Fair Work Building Industry Inspectorate.

137    Mr Sharples said that he uses the work ‘fuck’ but not in a professional setting. He agreed that he does not use swear words as a matter of personal preference, rather than as a result of any objection which he has to swearing.

Re-examination

138    In re-examination Mr Sharples said that he did not recall speaking to Mr Davies at all.

139    In the following passage Mr Sharples explained why he believed that Mr Tadic hindered his ability to carry out the inspection:

Why do you have that belief – that he hindered your ability to carry out the inspection? --- The manner in which he conducted himself. I was more worried about angering him further than really looking at what I was supposed to be looking at. I found my focus was on how he was. His passion was overflowing. It was fantastic. I applaud that, but the delivery was offensive – insulting. And I say I didn’t say “frustration”. I would say frustration would have been part of his emotion at that stage, because he wasn’t – I perhaps wasn’t dealing with things in the manner with which he wished – I think. But I certainly found my focus was not entirely as it probably should have been.

The compulsory examination of Mr Sharples

140    The compulsory examination of Mr Sharples took place on 11 February 2015. A 57 page transcript of the examination was tendered by the Director in this proceeding. Mr Sharples was examined by Mr P O’Grady of counsel. The Director, Nigel Hadgkiss, was also present at the compulsory examination.

141    Mr Sharples said that Mr Tadic’s conduct at the start of the safety walk was not concerning him. As the walk continued Mr Tadic became agitated by what he had seen. His comments were “derogatory towards the site”. Mr Sharples was in control and told Mr Tadic to limit his comments until the end of the walk. Mr Tadic accepted this.

142    Mr Sharples then addressed the situation at the handrail as follows:

His mood did change at that stage, he appeared quite frustrated I think was his overriding mannerisms, he was very frustrated. He was so – I applaud his passion – but he was just, it was conveyed in a very angry way toward me and toward Brad, in particular, Mr Regan, was also a target of his comments. As I say, those comments won’t reflect in my report because they didn’t form part of my inspection and it’s not here nor there. Yeah, that was about it.

143    Mr Sharples said that the comments seemed to make Mr Regan quite worried. Then followed an exchange which included an intervention by the Director himself:

[D]o you remember the effect of those comments?

MR SHARPLES:    Most definitely. The effect it had on Brad was concerning. I looked at Brad and Brad seemed quite worried about Mr Tadic’s behaviour, his mannerisms, his postulation. While he was talking to us he was really quite ---

MR HADGKISS:    Animated?

MR SHAPRLES:    Yes, sir. Animated, that’s right, he was very animated and toward me to a lesser extent, it was more of an inquisitorial interaction, “What are you doing to do about this?” and, “What do you see about his?” and exactly what he was talking about, as I say, is not in here because it wasn’t ---

MR O’GRADY:    I understand.

MR SHARPLES:    --- part of my visit to deal with what his concerns were, it was those seven points – and I hate to be black and white about it – but that’s what it was. My concern was with those seven points only ---

MR O’GRADY:    Of course.

MR SHARPLES:    --- unless it had immediate risk on employees.

144    Mr Sharples was then asked if Mr Tadic called into question the job that he was doing and he answered:

He called me the worst inspector he’d seen, that I should close the whole site down ---

145    Then, in describing what happened at the handrail area Mr Sharples said:

Mr Tadic came up and he kicked one of the boots and saw that one of the bolts had not been put into the ground. They are required to have four bolts put in. He was quite right at that point. I believe I said to Mr Regan, “Can we get that fixed?” He said “Yeah, yeah. We’ll get that fixed,” and I think he might have even said to Mr Bridges at that very stage, “Can we get that done?” In fact, I’m sure he did. Mr Bridges then spoke to somebody who arranged for that to occur whilst we were there. I didn’t see it occurring. I don’t believe it was finished by the time I left but I was satisfied that that matter would be handled. Mr Tadic became very frustrated with that. He made another comment about, “Close the site down,” and it was at that point that his aggression probably came to the top which really concerned me. Again, the worst inspector he’s had, am I in the back pocket, I believe, of (indistinct) of Mick Regan or Mick, when am I picking up my pay pocket from them. His posture became very aggressive, he snarled at me ---

MR O’GRADY:    Was his language ---

MR SHARPLES:    Look, I’m sure he swore. I’ve got no doubt he swore. I don’t know exactly ---

MR O’GRADY:    I mean you will have experienced that on building sites before I’m sure.

MR SHARPLES:    Very much so.

146    Mr Sharples described the nature of the language used by Mr Tadic and Mr Tadic’s phone call to Mr Beacom thus:

[W]as it aggressive language or aggressive swearing?

MR SHARPLES:    Yes, I believe it was. Unfortunately for him, I’ve worked in a maximum security gaol for 13 years so I’m not easily intimidated and I say that given my confidence in handling and dealing with difficult people and I don’t believe that I was reacting the way he wanted me to. It was an attempt to intimidate me. When he could see that I wasn’t concerned with his concerns he said to me that, he held up his mobile phone, “I’m going to fuckin’ call your boss.”

MR HADGKISS:    Sorry, he’s going to call your ---

MR SHARPLES:    He’s going to call my boss, you know, “I’m going to fucking call your boss.” Allan Beacom. Allan Beacom was the construction [sic] for WorkSafe manager and I’ve got his number. He turned around with his back to me – at this stage he would have been about a metre and a half in front of me and he made some series of notations on his phone. He picked his phone up and turned around and looked at me and he got Allan’s answering machine, I suppose, MessageBank and left a message and said something to the concern – at this stage I was very worried that I had done something wrong so exactly what the message was that he gave Allan Beacom, I’m not sure. It was something to do about, “I’ve got an inspector here, Jason Sharples. I’ve got concerns about him.” He was very very angry with me and glaring at me the whole time at this point and I was really quite put off by it. It actually started to affect me at that point because I started second-guessing what I was doing. I’d not come across this sort of aggression in the workplace before and as a WorkSafe inspector you get a lot of grief.

147    The group then moved to the pane of glass area. Mr Tadic was not satisfied with the suggestion that the area simply be taped off. Mr Sharples said “the comments, I don’t know what they were exactly”.

148    The Director then intervened in the questioning. The interventions appear to have been designed to suggest certain elements of the case which would inculpate Mr Tadic. The Director’s questions reflected a partisan approach rather than the neutral approach proper for the investigative process. The relevant exchanges are as follows:

MR HADGKISS:    So what’s going through my mind is did you get the impression Mr Tadic had already conducted a walk personally on these matters that he raised when he rang at 8.34, whatever it was that morning, because these are new things that are appearing?

MR SHARPLES:    That’s a very good question and I’ve not entertained that at all, but it would be easy to surmise that he had been on site and seen these hazards. Yes, most definitely.

MR HADGKISS:    But he hadn’t – when he phoned, his initial complaint, these weren’t mentioned, the pane of glass, the bolt?

MR SHARPLES:    No, sir.

MR HADGKISS:    Other things – I’m just going through my mind. I mean did you get the impression he was familiar with the site, he had discovered these matters and brought it to attention and when walking with you these are new things that jump out at him?

MR SHARPLES:    I agree totally with that. Yeah, I think he did have some knowledge of the site prior to me being there.

…

MR HADGKISS:    And I take it that being a CFMEU official he was dressed in black accompanied by the other gentleman the same, or not?

MR SHARPLES:    I think so, sir. I think they had hi-viz vests on as well over the top of their black shirts.

MR HADGKISS:    Did they have black helmets, do you recall?

MR SHARPLES:    No, sir, I don’t recall.

MR O’GRADY:    I presume everyone was wearing safety helmets?

MR SHARPLES:    That’s right.

MR O’GRADY:    Was there anything on them that identified them as being CFMEU representatives?

MR SHARPLES:    I don’t recall, sir. I think their hard hats might have had CFMEU stickers. Incorrect recollection, I’m not sure.

MR HADGKISS:    Ordinarily, they would wear black, wouldn’t they?

MR SHARPLES:    That’s right, yeah.

MR HADGKISS:    With certain stickers.

149    Next, the examination addressed the conduct of Mr Davies. Mr Sharples said that Mr Davies did not refer to him a great deal. The Director again intervened as follows:

MR HADGKISS:    You weren’t intimidated by the second gentleman?

MR SHARPLES:    No, I’m glad because he was a big fellow. He was six and a half foot tall. I’m glad he didn’t [sic] angry because that may have got me a bit worried, but he didn’t. He was angry but he wasn’t directing any aggression toward me. He wasn’t happy with me, of course, and I believe he was doing that very much to follow Mr Tadic. It was that sort of relationship.

MR HADGKISS:    Role playing?

MR SHARPLES:    Yeah, that sort of role he played, not the underling, but Mr Tadic was the lead CFMEU rep and Mr Davies was there to either give him security or to amplify the concerns that Mr Tadic spoke about but, yeah, most certainly he wasn’t intimidating to me.

150    Mr O’Grady then asked if there was anything else about the conduct of Mr Tadic and Mr Davies of the same nature as he had been asked. Mr Sharples replied no. The Director, however, intervened and asked:

MR HADGKISS:    Maybe pick up from where you left off with I think the pane of glass. Did anything occur after that?

MR SHARPLES:    Again, it doesn’t form part of my visit, this is all recollection.

MR HADGKISS:    Sure.

MR SHARPLES:    It’s a bloody year ago. Look, he was – he continued in that vein. He was not happy with the ---

151    Mr Sharples explained what he regarded as Mr Tadic’s motivation:

[H]e seemed so impassioned – and I know his intentions were good, they were good, like there’s no two ways about it, he wasn’t just there to give me a hard time, he was there to protect the workers and that was really his passion, what he believed was dangerous, and it wasn’t self-satisfying. “These guys don’t have to put up with this and they shouldn’t have to work in this environment,” and you could see that he was really passionate about that and I applaud that, I reckon that’s fantastic, that a guy can work himself up over the safety issues like that.

152    Mr Sharples also said:

I don’t think it’s appropriate that an inspector puts his feelings in an entry report or his notices unless they contravene an act and are threatening or, you know, obstruct an inspector.

153    Later the Director addressed the effect of Mr Tadic’s conduct in the following exchange:

MR HADGKISS:    Is it fair to say that Mr Tadic’s demeanour, conduct, et cetera, like you’ve mentioned with hindsight you would have asked him to leave, do you feel that he hindered you in any way?

MR SHARPLES:    Most definitely.

MR HADGKISS:    Did he obstruct you in the course of your duties?

MR SHARPLES:    I was still able to got [sic] through the seven points of the complaints, sir, so I don’t believe he obstructed me to that point. I believe it affected my ability to conduct a more thorough inspection of the workplace because I was so worried about what he was trying to say and what he was saying. I had one ear on him, one ear on Brad.

MR HADGKISS:    So you were distracted from ---

MR SHARPLES:    He certainly distracted me, without a doubt. I was distracted from my conduct – from the course of my inspection.     

154    Asked whether Mr Tadic’s conduct affected the speed of the safety walk, Mr Sharples said:

MR SHARPLES:    I’m going to think about his [sic] response for a moment, if I may.

MR O’GRADY:    Certainly.

MR SHARPLES:    I think, from my limited experience, it took longer to do the job, to do the walk-through, hence the job from 11.00 until 3.15. My focus was removed from the seven points of concern, compiled in the complaint. Whilst he may not have hindered my ability to work on those matters, I believe he took away – and, as I say, I don’t just deal with that, I look for other concerns and points and if I believe they possess a hazard, an immediate hazard or risk to employees, we deal with that then. It’s not just the complaint. I think it took longer because of Mr Tadic’s accompany and, look, I don’t say that lightly and I don’t think that’s such a bad thing. I get paid to do a job and I’m happy to stay there for as long as the job is and I’d welcome Mr Tadic back to a site that I was walking around again if I could have a conversation with him prior to that and ask him to keep his comments to a minimum because I believe that unions have a place in our work environment, as does Mr Tadic and his offsider but at some point you’ve got to understand that you’re becoming destructive to the process, not constructive. I should write that down actually, that’s quite good, because I don’t believe that he assisted us at all.

The Evidence of Mr Tadic

Evidence in chief

155    Mr Tadic estimated that in a typical 12 month period he would conduct about 300 site inspections in his role as an occupational health and safety advisor for the CFMEU. In about 30 or 40 a WorkSafe inspector would be present at the inspection.

156    After dealing with the events leading up to the start of the safety walk Mr Tadic said that the first thing he recalled was a live electricity cable hanging from the ceiling to the floor near the site office. Everyone on the safety walk agreed that it needed to be fixed immediately.

157    Although he was not certain of the sequence in which the issues arose, Mr Tadic next spoke of the adjacent access issue and that Mr Bridges attended to the closing off of that area.

158    Mr Tadic then described the danger of the faulty handrail and said that it was an immediate risk “without any doubt whatsoever”. There was a risk of serious injury or death from the three metre drop to the driveway below. Mr Tadic said to Mr Sharples that it needed to be fixed. “It was a normal conversation at that time”. Mr Sharples replied “yes. You are 100% right. It needs to be fixed”. Then Mr Tadic said that Mr Sharples turned to Mr Regan, put his arm around his shoulder, and said “I will give you a week to fix it”. Mr Tadic was dumbfounded because the state of the handrail was an immediate risk to safety. He did not respond to Mr Sharples but said to Mr Davies to keep walking and see how things pan out. Mr Tadic said that the handrail was in a pretty busy walkway area. He did not agree that Mr Sharples stood at the handrail for 15 – 20 minutes observing passing traffic. He said that the group did not stay there long. In his view, the handrail needed to be taken apart and replaced immediately, and the area not just taped off temporarily.

159    Mr Tadic then referred to the lighting issue. He said that lighting was poor through the whole area. He said that the lux reading on the site would have been lucky to have been five. The lux reading necessary for access lighting is 40 and for backup lighting is 20. In view of the poor housekeeping with material lying around on the site the poor lighting presented a trip hazard. Mr Tadic said that Mr Sharples again said “you’re 100% right” and turned to Mr Regan and said “I will give you a week to fix it”. Mr Tadic described his response to Mr Sharples giving Mr Regan a week to fix the lighting issue as follows:

My response to that was – and everyone’s talking about the glass. I reckon that’s where I pretty well had enough. I thought, as an inspector, his role is an inspector is there for the health and safety of workers. To me, and the way he was speaking to Mr Regan, it’s like he was actually applying for a job with the builder. It was absolutely, to me, pathetic, and I was pretty well gobsmacked, and that’s why I rang his superiors on the Monday between myself and my boss. We wrote a letter to WorkSafe and put in a complaint about Mr Sharples.

160    At this point, Mr Tadic said to Mr Sharples that he was pathetic. Mr Tadic gave evidence that he assessed Mr Sharples as a poor inspector. He agreed that his voice was raised. Mr Tadic explained:

There was no nastiness in it. It was just – well, like I said, I was more just sort of gobsmacked and probably frustrated that this guy sort of – like I said, if I had have known he was inexperienced, then it probably wouldn’t have seemed like he was actually applying for a job for a builder. It was just more of the fact that he didn’t really know enough about commercial construction work rather than coming across as he was good buddies with the builder and he was looking for a job for just in case.

161    Mr Tadic thought that he called Mr Beacom from the smoko room but could not remember exactly.

162    In relation to the lighting issue Mr Tadic explained:

I said … there shouldn’t be anyone in this area. So what I was trying to do was get the people out of the areas we were identifying where there was a problem. Basically through all of the new building, there was issues with lighting. There shouldn’t have been no workers in there until the situation was addressed. So the best way to do that – and I agree with Mr Regan the other day when he said there’s no point sending everyone home, because how do you fix the problems? So what you do, you put them in the sheds, you sit down, you go through what all of the issues are, you say, okay, now we will get some people out into these areas and fix the problems, rather than having workers working in there doing production while you’re trying to fix these problems. The lease [sic] amount of people you’ve got in them areas, the better until the issues have been fixed.

163    Mr Tadic said that he phoned Mr Beacom so that he might address the complaints about Mr Sharples and thus make it unnecessary to lodge a formal complaint against Mr Sharples. Mr Tadic knew Mr Beacom well. They had served on safety committees together. Mr Tadic said that he had worked with many WorkSafe inspectors and had never previously lodged a complaint about any of them. He did make a formal complaint to WorkSafe about Mr Sharples after these events.

164    Mr Tadic denied asking for the site to be shut down. He did not recall calling Mr Sharples the worst inspector he had ever seen but would not deny saying it.

165    Mr Tadic denied saying that Mr Sharples was in the back pocket of Mr Regan and picking up his payment from the builder. He agreed that he swears a lot but denied that he directed swearing to Mr Sharples in a nasty way. He agreed that he raised his voice and was frustrated, but not that he was angry, aggressive or comabtive.

Cross-examination

166    Mr Tadic said that it was negative for a builder to call the police because that does not fix the safety issues.

167    He agreed that he swears “as much as any other worker on a work site”. He said that the majority of people he associated with swear.

168    Mr Tadic acknowledged that he made the following comments in an interview with the internet publication “Working Life” published by the Australian Council of Trade Unions:

I’m known to swear a bit…You might have an immediate risk when something is unsafe, and if someone is standing in my way, waving a piece of paper in my face, saying if I need to fill out the paperwork or I can’t go on site, there is not time to be nice.

Why am I going to be nice to a boss who exposes workers to unsafe practices? I’m going to swear if I have to. I’m not going to be shy about it.

169    Mr Tadic denied that he insults people but said “ I certainly have a point of view”. He denied he would be aggressive in safety issues but would raise his voice. He said:

For all of my life, people have made comments to me when I actually say something, and I don’t even realise that it’s aggressive until they actually point it out, so that potentially could be the case, but it’s certainly not done in a manner where it’s meant to be happening that way.

170    Mr Tadic conceded that there was a lot of discussion on the day which he did not recall.

171    Mr Tadic denied that Mr Sharples told him at the beginning of the walk to keep his comments until the end.

172    Mr Tadic said that Mr Regan did not disagree that there were safety issues and that he was embarrassed. Mr Sharples was also not denying the safety issues. Mr Tadic said he was frustrated that the builder was being given a week to rectify the lighting and the handrail issues. He said 78% of accidents on building sites are from falls from height. He said on numerous occasions that the workers should be in the shed until the safety problems were solved. Mr Tadic denied that he said “close the site. Close the fucking site”.

173    When asked whether he was most frustrated at the handrail area, Mr Tadic replied:

No, because that was probably one of the first areas we went to. That was more dumbfounded at the handrail, without a doubt, dumbfounded. When we walked through the rest of the areas, and – I reckon I got pretty annoyed where we were at the actual lighting scenario, because that was covering most of the new part of the building. And for the inspector to say yes, you’re 100 per cent right there, I will give you a week to fix it, I found that absolutely amazing. And, basically, now that I realise he was only quite new as being an inspector, I can understand now why he actually didn’t have the experience in commercial construction. The guy had no idea.

174    Also at the handrail, Mr Tadic said that he was unsure if there was a discussion with Mr Sharples about the one week timeframe that was given for the handrail to be fixed.

175    Mr Tadic denied that he said to Mr Sharples that he was “all for the builder and not for the worker” but conceded that he said “Are you applying for a job with the builder?”

176    In relation to the lighting issue, Mr Tadic did not have a clear recollection of a discussion with Mr Sharples about the one week timeframe that was given for the lighting issue to be resolved. Mr Tadic suggested that one reason he may not have had a lengthy discussion with Mr Sharples about the timeframe was that Mr Sharples was the regulator, and Mr Tadic was not aware at that time that it was possible to challenge entry reports and improvement notices prepared by WorkSafe inspectors. Mr Tadic agreed that rather than making a complaint to Mr Beacom, he could have challenged Mr Sharples’ entry report and improvement notices.

177    Mr Tadic denied that he said words to the effect that Mr Sharples was picking up his pay packet from the builder, or that he called Mr Sharples a fucking idiot or an embarrassment.

178    Mr Tadic said that the call to Mr Beacom was made from the smoko room, but he said that he could be wrong about the place. He said it was the last thing he did before he left the site. Mr Tadic denied that he made the call in front of Mr Sharples in order to influence Mr Sharples. He said that Mr Sharples was a bad inspector and that Mr Sharples’ hierarchy needed to know. He said, “I had no shame in telling him to his face that’s what I was going to do”.

179    Mr Tadic said that the lighting issue discussion which occurred before the group stopped at the pane of glass was “the one that topped it off” for him. It is where he got most frustrated.

180    Mr Tadic did not ask Mr Sharples about the latter’s experience as an inspector. He thought that Mr Sharples “comes across as pretty cocky”.

181    Mr Tadic agreed that he said the words "This is not over" to Mr Sharples in the smoko room. He said that what he meant by those words was that he was going to put in an official complaint about Mr Sharples.

182    The dynamics of the safety walk as perceived by Mr Tadic were captured in the following exchanges, first between counsel and Mr Tadic, and then between the Court and Mr Tadic:

The fix was the issue. But looking back now, do you think that things would have gone a lot smoother if you wouldn’t have got loud and said the things you said to Mr Sharples about being pathetic, being the worst inspector, and are you applying for a job with the builder – do you think, on reflection, you shouldn’t have said those things to him? --- I have no regret in what I said to Mr Sharples, because Mr Sharples was a bad inspector, he was exposing workers to unsafe work practices, and I’m – I believe in being honest, and if I believe that’s what I think on a day, that’s what I will tell the person on the day. Now, if you want to blow it up that I was yelling and screaming and my eyes were popping out and doing all of that sort of stuff, that is not correct, okay. I definitely did tell him he was a bad inspector, and, yes, he was pathetic, but now I realise that he was actually inexperienced and he didn’t understand, and I actually blame WorkSafe for sending him out there with a lack of experience in the first place, and if you want to go back even further, if you had a proper site manager on that site, none of them issues would have been there in the first place, and we wouldn’t have even been there. How does that go?

HIS HONOUR: Well, and, of course, another thing, Mr Tadic, would have been if you had adopted a different approach to him, things might have gone differently as well. In other words, as I was putting to you before – and, you know, it’s easy for me to say this after the event, but, looking at it now, if you had discussed with him your problem about the one week in frank but just conversational terms without accusing him, then he might have seen the point, mightn’t he? --- Mr Sharples yesterday made it pretty clear that when he formed an opinion on something no one was going to change it. He actually said that in here, and so that was the case on the day, so – and that’s why I got to a stage there where I thought this is actually becoming a pointless exercise, and that’s why I put in the complaint to his superiors.

The Evidence of Mr Davies

Evidence in Chief

183    At the start of the safety walk Mr Sharples said he would come back to where the exposed electrical wire was coming through the ceiling. Mr Davies then recalled an unsafe scaffold in the link gallery adjacent to the site office. He did not observe Mr Tadic’s conduct at that time.

184    The group moved to the handrail area. Mr Tadic shook it. Mr Davies thought that it was an immediate risk. It was in a main thoroughfare. Mr Davies said he was frustrated. Mr Davies did not hear the response of Mr Regan but he knew that Mr Regan was going to fix it. Mr Davies was frustrated because the handrail was not to be fixed immediately. Mr Tadic asked for the area to be cordoned off but Mr Davies did not hear the reply. Mr Davies said that Mr Tadic’s volume was a bit high. Mr Davies did not know if Mr Tadic’s mannerisms or body language expressed frustration, but did say that Mr Tadic’s tone was probably sarcastic.

185    Next, Mr Davies identified a carcinogenic dust problem in a timber cutting room and spoke to Mr Regan about it. Mr Tadic was not involved.

186    Then, along the corridor on the western side of the courtyard, there was mention of the lighting issue. Mr Davies regarded the lighting issues as “massive”. He recalled that Mr Tadic continued to conduct himself in the same way but Mr Davies did not recall what was said. Mr Davies again thought that the lighting required an immediate fix.

187    On returning to the witness box on 9 September 2016, Mr Davies asked to add some evidence concerning the handrail area. He recalled overnight that Mr Sharples said that Mr Regan could have a week to fix the handrail. In response Mr Tadic and Mr Davies glared at each other, and had some words together, which included swear words. Mr Davies said that he had spoken to Mr Tadic after Court the day before but they did not talk about his evidence.

188    Mr Davies then recalled going to the area of the glass pane and saying to Mr Regan that the glass pane should be moved and properly stored. Mr Regan agreed with Mr Sharples that the glass pane would be roped off. Then, Mr Davies heard Mr Tadic say to Mr Sharples that he was the worst inspector that he had dealt with. His tone was frustrated and louder than general conversation. He had a look of disbelief.

189    Mr Davies said that the group went back to the site office and then did a perimeter walk. On that walk a number a further safety issues were raised. The party then returned to the lunch room where there was a discussion about some exposed wiring in the old building.

190    Mr Tadic and Mr Davies then signed out. Mr Sharples said something and Mr Tadic responded “I’m calling your boss”. Mr Tadic was agitated. His voice was louder than normal conversation but not screaming. Then Mr Davis and Mr Tadic left the site.

191    Mr Davies said that the conditions on the site were atrocious.

192    Mr Davies said that there were hundreds of instances of swearing on the site by himself, Mr Tadic and the workers on the site. To Mr Davies swearing is “like a second language”.

Cross-examination

193    Mr Davies agreed that Mr Regan was cooperative on the site walk and was not rude or aggressive.

194    Mr Davies recalled that Mr Sharples said something to the effect of “I want to do my inspection and deal afterwards with what you say”. He said something like this several times. He also said that he was just there to deal with the issues reported to WorkSafe and nothing else.

195    Mr Tadic did not say that the site should be closed down immediately. Mr Tadic did not lose his temper.

196    At the handrail Mr Davies and Mr Tadic were frustrated and Mr Tadic’s volume was louder than normal conversation. Mr Tadic was not swearing a lot.

197    At some point Mr Davies and Mr Tadic became frustrated at Mr Sharples and not just at the site conditions.

198    Mr Davies was definite that Mr Tadic called Mr Sharples the worst inspector he had ever seen at the glass pane area and not at the handrail area.

199    There was a lot of swearing by workers on the site. There was occasional swearing by Mr Tadic.

200    Mr Davies said that he did not hear Mr Tadic say to Mr Sharples that he was in the back pocket of the builder or ask whether he collects his pay from the builder. Mr Davies did not hear Mr Tadic say Mr Sharples was a fucking idiot, that he was pathetic, and that he was all for the builder and nothing for the worker.

201    Mr Tadic was most frustrated at the handrail and also frustrated at the pane of glass.

202    Mr Tadic did not call Mr Beacom at the handrail area.

Re-examination

203    Mr Davies said that he was with Mr Tadic for most of the safety walk.

FINDINGS OF FACT IN RESPECT OF THE PLEADED CASE

204    Against the background of the general assessments of the reliability of each of the witnesses recorded earlier in these reasons for judgment, and by reference to the evidence outlined in the previous section of these reasons for judgment, this section records the findings of fact in respect of the particulars of the pleaded case alleged in [19] and [20] of the amended statement of claim.

205    The Director must establish his case on the balance of probabilities in accordance with the principles stated in Briginshaw v Briginshaw (1938) 60 CLR 336 by Dixon J at 362:

… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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.

206    Those principles are now reflected in statutory form in s 140 of the Evidence Act 1995 (Cth) which applies to the present consideration and which provides:

(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.

Mr Tadic’s Conduct

207    Paragraph 19 of the amended statement of claim pleads the conduct engaged in by Mr Tadic. Each allegation is addressed below.

(a)    Failure of Mr Tadic to follow Mr Sharples’ request to limit questions and comments until the end of the inspection (amended statement of claim [19(a)])

208    Mr Sharples gave evidence at the compulsory examination that he asked Mr Tadic twice to limit his questions and comments until the end of the inspection. In evidence to the Court he said that this occurred on more than two occasions and he gave evidence of three instances.

209    Mr Sharples explained the context in which he made the request. He said that it was “because I didn’t appreciate what he was saying”. Mr Tadic was “making comments about my inspection”.

210    Mr Davies did not recall the precise words alleged being used but agreed that words to the same effect were said by Mr Sharples. He said that this occurred on two occasions.

211    In cross-examination Mr Tadic denied that Mr Sharples said to him to keep his questions until the end of the walk.

212    I am satisfied that Mr Sharples said to Mr Tadic twice that he should limit his questions and comments until the end of the visit and that this was said not to advance the purpose of the inspection but because Mr Sharples objected to having his work criticised.

213    I am also satisfied that Mr Tadic did not accede to the request to limit his questions and comments until the end of the visit.

(b)    Mr Tadic made repeated demands to Mr Sharples to close the site down (amended statement of claim [19(b)])

214    Mr Sharples gave evidence at the handrail, the lighting discussion, and at the pane of glass that Mr Tadic said that the site should be closed down. That was said in connection with the particular safety issue under consideration. Thus, at the handrail Mr Sharples said he recalled Mr Tadic saying, “Close the fucking site down.” Mr Sharples went on to explain: “He was really concerned with the safety aspects of the site.” In the compulsory examination Mr Sharples also referred to Mr Tadic’s statement that the site be closed down.

215    Mr Regan also gave evidence that Mr Tadic said that the job needed to be shut down. Mr Regan included the same observation in his statement to the Fair Work Inspector.

216    Mr Tadic denied that he asked for the site to be closed down. He explained:

I never asked for the site to be shut down. I asked for the workers to be put back into the sheds because that’s the safest place for them because, like I said earlier, there’s no point sending the workers home because that doesn’t fix the actual safety issue. But what you do have is you have the minimum amount of people out on the site addressing the safety issues rather than having the whole site out there. And sending them home doesn’t fix anything because there’s no one there to fix it.

217    Mr Davies denied that he and Mr Tadic thought the site should be shutdown. He also said that they did not speak about the possibility that the site should be closed down.

218    There is force in the fact that both Mr Sharples and Mr Regan mentioned Mr Tadic’s demand to close down the site in their previous statements. These were earlier versions of the incident made closer to the event and made when their memories might have been fresher.

219    However, their evidence must be viewed against the assessment made earlier in these reasons for judgment. For different reasons they both had reason to exaggerate Mr Tadic’s conduct either deliberately or by misunderstanding what was being suggested by Mr Tadic.

220    On the other hand, Mr Tadic gave a cogent explanation for his more limited demand. He gave that evidence in a straightforward and convincing way without hesitation. Mr Sharples and Mr Regan accept that Mr Tadic held genuine concerns about safety. A limited form of protection would be provided by removing the workers from the danger whilst the safety issues were addressed. Mr Tadic’s idea was for those issues to be rectified immediately. It made sense for the workers to be out of the way in the short term while that occurred. I accept Mr Tadic’s evidence that he did not say that the site should be closed down. Rather he asked that the workers stay in the shed until the safety issues were rectified.

(c)    Mr Tadic was rude to Mr Sharples (amended statement of claim [19(c)]

221    Mr Tadic did not deny that he said to Mr Sharples that he was the worst inspector that he had seen.

222    Mr Tadic also admitted that he said to Mr Sharples that he was pathetic.

223    Mr Sharples said, both at the compulsory examination and in evidence, that Mr Tadic said to him “are you in the back pocket of the builder … when do I collect my pay packet.”

224    Mr Tadic explained what he said and the context in which it was said in the following exchange:

What did you say to him about applying for a job with the builder, Mr Tadic? --- I think it was we were at the lighting scenario where they had the floodlights just sitting on the ground in the hallway, and when he said to Mr Regan, “I will give you a week to fix it”, I probably said the words along the line of, “Are you fair dinkum? Are you applying for a job with the builder?”

What were you meaning by that, Mr Tadic? --- To give him a week to fix OH&S issues that were immediate hazard and risk is absolutely ridiculous.

Were you, in effect, saying to him that he was biased for the builder? --- Well, if he was trying to get a job with the builder, that’s what I assumed, yes.

And you said words like that to him, that you’re trying to get a job with the builder? --- I said, “Are you applying for a job with the builder?” They were the exact words I said, “Are you applying for a job with the builder?”

And there may have been the odd swear word on either end of the sentence or in the middle of it, Mr Tadic. That’s correct, isn’t it? --- I don’t recall.

And you said words to the effect was he picking up his pay packet from them? --- I have never said that to anybody at any time.

225    In Mr Sharples’ version of this statement there is an allegation made by Mr Tadic amounting to a suggestion of corrupt practice. In Mr Tadic’s version there is rather an expression of frustration with decisions made by Mr Sharples which favoured the builder. Mr Regan gave evidence that Mr Tadic said at the handrail, “You’re all for the fucking builder. You’re not for the bloody bloke on site.” There is a similarity in the essence of this statement with the evidence given by Mr Tadic. I prefer the evidence of Mr Tadic on the basis that, as previously explained, his evidence is generally more reliable than the evidence of Mr Sharples. Furthermore, the statement as related by Mr Tadic addresses the immediate issue which arose on the site rather than an extraneous allegation of corrupt practice.

226    Mr Sharples said that Mr Tadic called him a fucking idiot. This evidence was given twice in chief in response to questions enquiring generally about what insults were directed to Mr Sharples by Mr Tadic. Mr Sharples accepted that all the insults blended in together. The question, and consequently the answer, was not placed in a particular conversation at a particular point in the safety walk. In cross-examination Mr Sharples agreed that he did not positively recall Mr Tadic using those words or not.

227    Mr Regan made the same generalised allegation in his first statement. Although in his examination in chief Mr Regan addressed a number of incidents of crude and insulting conduct of Mr Tadic, he did not say that Mr Tadic called Mr Sharples a fucking idiot. Mr Tadic denied that he called Mr Sharples a fucking idiot. Mr Davies did not hear Mr Tadic call Mr Sharples a fucking idiot. I accept Mr Tadic’s denial regarding that statement. The first statement of Mr Regan was very general on this issue and his allegation was not repeated in his evidence in Court. Mr Sharples was not positive that the words were said. Further, the tendency of Mr Regan and Mr Sharples to exaggerate and overdramatise the conduct of Mr Tadic casts doubt on the reliability of their evidence on this issue as explained earlier in these reasons for judgment.

228    Mr Regan alleged in his first statement that Mr Tadic said to Mr Sharples that Mr Sharples was an embarrassment. In Court, Mr Regan’s evidence about this phrase was vague and bundled together with other phrases: “Just that he was a fucking disgrace, he was an embarrassment, he shouldn’t be in the fucking industry, get out of it, you know”. In cross-examination, Mr Regan was asked about this evidence. He responded:

“Get out of the industry. I – the words that you’re saying are what was said, but the last part of it “get out of the industry”, I don’t know about. Disgrace to the industry.”

Mr Tadic denied that he called Mr Sharples an embarrassment. I am not satisfied on the balance of probabilities that Mr Tadic said to Mr Sharples that he was an embarrassment.

(d)    Phone call to Mr Beacom and Mr Tadic’s anger and aggression towards Mr Sharples (amended statement of claim [19(d)])

229    Mr Tadic gave evidence that he phoned Mr Beacom. Mr Sharples was in the vicinity. Mr Tadic said that he chose to make the call in Mr Sharples’ presence so Mr Sharples would know that he was making a complaint that he was a poor inspector and that he was exposing workers to unsafe work practices. He said “his hierarchy needed to know about it. And I had no shame in telling him to his face that that’s what I was going to do.” Mr Tadic explained his reasons further:

I wasn’t aware at the time that he was a very inexperienced inspector, but I tell you now, he was a bad inspector, he was exposing workers to unsafe work practices, and you know what? I’ve got an obligation, just like everyone else has got an obligation under the OH&S Act – if something’s unsafe, you need to report it. This inspector basically was unsafe. He was actually unsafe, which was creating problems on the job, and he didn’t have a problem with them. I will give you a week to fix it, no problem – I mean, it’s just ridiculous. We’re talking about people’s lives.

230    Mr Tadic said that before the call he looked at Mr Sharples and told him he was going to make the call. He spoke directly. He did not glare at Mr Sharples. Mr Tadic said that Mr Beacom did not answer the phone and Mr Tadic left a voicemail message.

231    Mr Tadic said that the phone call to Mr Beacom was the last thing he did before he left the site. Although he had some reservations at first, he said that he believed that he made the call in the smoko room. Reading his evidence on the issue as a whole, I am satisfied that the call was made at the end of the safety walk in the smoko room.

232    There was little contention about Mr Tadic’s version of the phone call to Mr Beacom. One difference was that Mr Sharples said that Mr Tadic glared at him in an intimidating way as he was speaking on the phone. This again is an instance of Mr Sharples intensifying the context. I prefer Mr Tadic’s evidence that he spoke directly to Mr Sharples. He did not want to hide the fact of his complaint, but did not glare at Mr Sharples in an intimidatory fashion. The other difference was the location at which the phone call was made. Mr Sharples in cross-examination said he believed that it happened at the handrail. Mr Davies recalled that it happened in the lunch room. In my view, Mr Davies evidence should be accepted as confirming the evidence of Mr Tadic that the phone call was made in the smoko room at the end of the safety walk.

(e)    Mr Tadic’s statement on exiting the site (amended statement of claim [19(e)]

233    It was common ground that Mr Tadic said to Mr Sharples as Mr Tadic left the site words to the effect of “this is not over”. Mr Sharples said that Mr Tadic made the statement in an aggressive and intimidating tone. He said that Mr Tadic spoke in a quite loud voice, a fair way from him, and in the presence of 10 to 12 workers having lunch at the time. Mr Sharples said in his evidence in-chief that the intimidation worked. When it was put to him in cross-examination that he had said in the compulsory examination that Mr Tadic’s parting words “didn’t intimidate me so much as insult me” Mr Sharples said that that was an accurate assessment.

234    Mr Tadic explained his view of his parting statement as follows:

And before – after you – back in the smoko room, on your way out, you said other comments to let Mr Sharples know that you weren’t happy with him, didn’t you? --- No. The last comment I made to Mr Sharples was that I would be ringing his boss, putting in a formal complaint.

You said words that, “This is not over and I’ll sort this out”, words like that? --- I believe I would have said, this is not over, and what I meant by that was that I would put in an official complaint about Mr Sharples. That’s why it was not over.

And this was said in the presence of other workers in the room, too, wasn’t it? --- I believe there may have been some other workers in there, yes.

You were challenging Mr Sharples in front of other people, weren’t you? --- Not at all. Challenge him to what? I put in an official complaint. That’s what I done. I told him I was doing that. That’s what I done. And I told him it wasn’t over because I was putting in [sic] official complaint.

235    Mr Tadic gave his explanation in a forthright and open manner. I am satisfied on the balance of probabilities that Mr Tadic’s parting words to Mr Sharples were not intended to intimidate Mr Sharples nor to humiliate him in front of the workers. They were intended to indicate that Mr Tadic would be filing a complaint against Mr Sharples.

(f)    Mr Tadic was angry, aggressive, and combative

236    The pleaded case alleged that the conduct of Mr Tadic constituting the contraventions was angry, aggressive and combative and included profuse swearing.

237    Mr Regan conveyed the atmosphere which existed at each of the places of major concern on the safety walk in similar terms involving Mr Tadic yelling and screaming at high volume, exploding, acting aggressively, and swearing profusely. For example, Mr Regan explained Mr Tadic’s reaction at the handrail as follows:

But an aggressive almost bordering on sometimes crazy yelling screaming demanding from the CFMEU, I didn’t take anything from that at the end, other than it was just mad.

MR STAR: Well, you’ve used the words “yelling crazy demanding”? --- Yes.

Can you describe Mr Tadic, why he – he was doing that? --- What – just eye-popping, you know, right – volume up, bang, “mate, you just” – just over the top. Like, I can’t explain it. I mean, I – I don’t think I could get myself that worked up. But it was quite extreme in his working up, like – and the more he yelled and screamed, the more he hyped himself up to the point where it didn’t matter what you said. It was just yelling and screaming.

And I’m going to ask you again, what words were being used when this was occurring? --- Yes, a lot of “fucks”, a lot of “shit”, a lot of “arsehole”…

238    Whilst the conduct described by Mr Regan was colourful in itself, Mr Regan’s manner of conveying the circumstances emphasised the intensity and drama of the situation.

239    Mr Sharples described similar conduct but painted a more restrained picture. Thus he gave the following evidence concerning Mr Tadic’s conduct at the handrail site:

He was saying “fuck”, sir. “It’s not fucking good enough. This is what I’m fucking talking about.” I hate saying that word but – he walked past me, then he walked past me again to stand to my right. “This fucking site is dangerous.” Exactly what, I don’t know but it was a great deal of discontent from Mr Tadic about the site and the condition of the site.

And ---? --- He was quite loud at that point. He became more agitated. I became concerned because I had not been confronted with that, and we get confronted with a lot of things as an inspector, as you can imagine, sir. But that seemed to be a little bit disproportionate to the incident and to the – to where we were at. The emphasis of the visit, we hadn’t expressed a view on much at all at that point. Yet Mr Tadic was quite animated and quite angry, and didn’t mind letting me know.

Well, what made – how was he angry? Can you describe to the court what you saw? --- He was loud in his speech. His speech was a great deal louder. He has an awful glare and it cut right through me. He looked at me and – and – to try and get his point across, and it worked. He would glare, and then he walked past me. He grabbed the balustrade and “This is what I’m fucking talking about” and he grabbed it and he shook it…

240    Mr Tadic responded to these allegations as follows:

…I swear all the time. I’m not going to deny that. But, as in, talking to a person and addressing a person in a nasty way, I suppose, is the best way of putting it. You know, you can say “fuck” in a nice way and you can say it in a nasty way. Definitely never said it in a nasty way towards Mr Sharples.

…

All right. Now, finally, Mr Tadic, it’s alleged against you that you were angry, aggressive and combative to Mr Sharples during the inspection. What do you say to the allegation that you were angry? --- I wasn’t angry. I was definitely frustrated.

What about the allegation that you were aggressive? --- I don’t believe I was aggressive at all. I would say no, I was not aggressive. I certainly raised my voice, there’s no doubt about that whatsoever. I’m pretty straight forward in the way about – the way I go about my business and there’s some people who don’t like it and don’t appreciate it and there are also some people which actually just don’t like to hear the truth.

And what about combative? --- Not at all.

…

And do you accept that the way your frustration was that Mr Sharples could have interpreted that as aggressive? --- I don’t see why he would feel as though it was aggressive because, like I said, there was no yelling or screaming or anything like that. My eyes weren’t popping out. Yes, I raised my voice. Yes, I was frustrated, but there was no great anger, and, like I said, I got to a point there where I thought this is, basically, a pointless exercise because this guy has already made up his mind on how he was going to deal with the issues.

…

Well, Mr Tadic, this frustration, ultimately, boiled over, and you just had an explosion at Mr Sharples? --- That’s not correct.

241    Mr Davies explained that Mr Tadic called Mr Sharples the worst inspector at the glass pane area but “[i]t wasn’t a scream or a shout. It was louder than normal conversation.” Mr Tadic was swearing occasionally but not a lot. When Mr Tadic said he would call Mr Beacom, Mr Tadic spoke in a loud and frustrated way.

242    The accounts given by Mr Tadic and Mr Davies about the level of aggravation directed to Mr Sharples were given in a way which seemed to portray the situation as it probably occurred. Mr Regan’s account seemed contrived in order to damage Mr Tadic. Mr Sharples’ account, although less exaggerated than Mr Regan’s account appeared designed to portray Mr Tadic in a bad light. Apart from these impressions of the way in which their evidence was given, for reasons explained earlier in these reasons for judgment concerning the general assessment of the evidence of Mr Regan and Mr Sharples, I prefer the accounts given by Mr Tadic and Mr Davies. Based on their evidence I find that Mr Tadic was frustrated at the way in which Mr Sharples was dealing with the safety issues. He expressed his dissatisfaction directly and forcefully to Mr Sharples. In doing so he used swear words liberally. His speech was louder than normal conversation but he was not yelling and not screaming. Mr Tadic generally directed these comments to the state of the premises rather than to Mr Tadic personally. The swearing was by way of “sentence enhancer”. It was not generally used in an aggressive way, but rather to add emphasis to the point he was seeking to make.

Consequences of Mr Tadic’s Conduct

243    Paragraph [20] of the amended statement of claim pleads the alleged consequences of Mr Tadic’s conduct. Each allegation is addressed below.

(a)    Mr Sharples considered leaving the site without completing the inspection (amended statement of claim [20(a)]

244    In his compulsory examination Mr Sharples first mentioned that he had considered leaving the site. In evidence in chief he explained why he had considered leaving the site:

…This post phone call with Allan Beacom, the construction manager for WorkSafe in Victoria, when he left a message. I considered walking out and leaving. I was a little bit shaken by it all. I thought that maybe – and I conduct up to 350 visits a year, your Honour, and I don’t question my decisions. I – I do not my question my relevance to the Act or the Regulations, but I questioned a lot within that short space of time that there could be an element of truth what Mr Tadic is saying. You know, have I done something wrong? Have I missed something? Have I – as a WorkSafe inspector you’ve got to be aware of the powers you have when you enter a workplace. So by that I mean where you look, how you look. You must remain friendly, you must remain open, you must remain fair, equitable and give someone the benefit of any doubt. I thought I was doing that, and I thought maybe I hadn’t done that and I might have upset Mr Regan, or I must have upset Mr Tadich [sic] or his offsider or Mr Bridges. I questioned where I was at with that visit.

When did you consider leaving the site? --- After he made the phone call to Mr Beacom. I attempted to make conversation again with Mr Regan about the balustrade and could we get some – some more bolts put in, as it should be as per the manufacturer’s specifications. Again, Mr Tadic passionately put forward his views, and, yes, I considered just leaving then. That was really upsetting.

What was upsetting? --- The fact that I was questioning myself. I’m a fairly confident bloke with – with regards to my work, because I – I’ve – I’ve studied my butt off to get this job. It’s not an easy job to do. It’s an easy job to perform in, and I think I do it quite well given that I’ve had 353 visits per year for the last four years and only one complaint. To have that complaint from Mr Tadic, who had been on many more sites than I probably ever have been, it made me question that maybe he was right, and I didn’t like that. I was on my way to the footy.

(b)    Mr Sharples was distracted from conducting the inspection in the manner he wished to conduct the inspection (amended statement of claim [20(b)]

245    Mr Sharples referred twice in the compulsory examination to Mr Tadic’s conduct distracting him. He did not refer to that matter directly in his oral evidence in Court.

246    The first mention in the compulsory examination related to Mr Tadic’s aggression towards him which he said took him away from looking around the site for safety issues which might be immediate risks to workers on site other than the seven issues which were the subject of the formal complaint to WorkSafe.

247    The second mention was in the response to the intervention by the Director himself which is extracted at [153] of these reasons for judgment. In that passage, in response to a leading question from the Director, Mr Sharples said that Mr Tadic’s conduct distracted him by causing him to divide his attention between Mr Regan and Mr Tadic.

(c)    Mr Sharples’ ability to conduct a more thorough inspection of the site was adversely affected (amended statement of claim [20(c)]

248    Mr Sharples also addressed the issue raised in [20(c)] of the amended statement of claim in the compulsory examination in the passage that is extracted at [153] of these reasons for judgment. In that passage Mr Sharples said that Mr Tadic’s conduct affected his ability to conduct a more thorough inspection of the workplace because he was so worried about what Mr Tadic was trying to say.

249    Mr Sharples further addressed this issue in the compulsory examination in the passage that is extracted at [154] of these reasons for judgment. In that passage Mr Sharples said that Mr Tadic’s conduct led to him not inspecting the balance of the site, but rather confining the inspection to the seven issues included in the formal report to WorkSafe.

(d)    The inspection took longer than it would have taken if Mr Tadic had not engaged in the alleged conduct (amended statement of claim [20(d)]

250    This issue was also addressed in the compulsory examination in the passage extracted at [154] of these reasons for judgment.

251    Mr Sharples’ initial evidence in Court about the time taken to do the inspection was as follows:

How long did it take to walk around the site approximately? --- An hour and a half, maybe; an hour, maybe two hours. I’m not sure. Yes, it might be – it could have been about two hours. It would have taken a lot longer if Mr Tadic wasn’t there.

Why do you say that? --- Because I wanted to get the hell out of there. I wanted to do my report. I had by the time that I had done – what I have done is gone through the seven issues on the service request, your Honour. After that I would say to the duty holder, “Can we go and have a look at the rest of the site? Can we go and have a walk around? Perhaps there’s some issues that a second set of eyes can see” which is, you know, good business practice, I feel, and most duty holders – in fact all duty holders welcome that. It’s not like we issue fines and, you know, hitting people with a big stick so they’re happy to see what – “Are we going to be compliant with the Act, please.” In fact people offer us to come to their sites quite a lot.

And you’re [sic] referred to the seven issues on the service request. To look at those how long did it – did it take what you thought to look at those issues? --- It’s a good question. Hard to answer but, look, I would say that – I would say I would have taken a little bit more time, I think.

252    In cross-examination there was an attempt to have Mr Sharples explain whether the safety walk took longer than it should have taken or whether it took shorter than it should have taken. The picture remained obscure as shown in the following exchanges which occurred on the same page of transcript:

So if you don’t know how long it should have taken and you don’t know how long it took, how do you know it took longer than it should have? --- Well, actually, it probably didn’t take longer, and I would retract that. I think I rushed a few issues, but then when I did my entry report, my entry report was – God, it took me ages to do my entry report so that I didn’t make any mistakes. I was a bit frazzled, I suppose, that I had just had a pretty traumatic time and I wasn’t really – yes. I wasn’t really thinking about that that much.

…

You told Mr Hadgkiss that it was – the walk through took longer to do, and you’ve told the court today that it took less time than it should have. Which is it, Mr Sharples? --- All right. So I believe it took longer. I certainly believe that my focus wasn’t with the job. I don’t believe I was as thorough as I could have been. I apologise for the confusion, but – yes – I would say it certainly took longer to do the walk through.

(e)    Mr Sharples’ phone call to Mr Sullivan (amended statement of claim [20(e)])

253    Mr Sharples gave evidence at the compulsory examination that he phoned Mr Sullivan after Mr Tadic left the site because “I wanted to alert my employer of my perhaps failings, that perhaps Mr Tadic was correct”. Later in the compulsory examination Mr Sharples said that he also rang Tricia Smith, his group leader, to express his concerns that she might receive a complaint from Mr Beacom about his conduct of the visit.

254    In cross-examination Mr Sharples said he also told Mr Sullivan that he would be getting a call from Mr Beacom because there was going to be a complaint lodged about the site inspection. He explained that a further reason for calling Mr Sullivan was to see if he had done something wrong in the conduct of the inspection.

(f)    Mr Sharples felt hindered in conducting the inspection (amended statement of claim [20(f)])

255    The allegation that Mr Tadic hindered Mr Sharples in conducting the inspection seems to involve several elements. Mr Sharples said that he did not conduct as thorough an inspection because of Mr Tadic’s conduct. That had two aspects. First, Mr Sharples did not inspect the balance of the site after dealing with the issues pointed out to him as he would normally have done, and, second, his focus on the issues which he did address was more limited than normal. Further, Mr Tadic’s conduct made him feel a bit intimidated.

256    Viewed in this way, there is some duplication in the allegations made in this paragraph and in [20(b) and (c)]. Mr Sharples’ statements relating to the way in which Mr Tadic’s conduct distracted Mr Sharples, and the time it took Mr Sharples to complete the safety walk, are referred to at [153], and [154] and [251] to [252] of these reasons for judgment, respectively.

257    The way Mr Sharples explained the way he felt hindered by intimidation appears from the following exchanges:

Now, you also gave some evidence yesterday that you felt intimidated by Mr Tadic’s behaviour at this point? --- Concerned, yes. Yes. Concerned and intimidated a bit, I was, most definitely.

What you told the investigators under compulsory examination was that you felt like Mr Tadic was trying to intimidate you, but unfortunately for him, you’re not so easily intimidated? --- That’s true.

That was the truth of it, wasn’t it? You thought he was trying to intimidate you, but you didn’t actually feel intimidated, did you? --- No, I did feel intimidated, I think, yes.

Well, when you say you think, did you or didn’t you? --- Well, I wanted to complete the visit as soon as possible and I didn’t go that for the good of my own health. Well, actually, I did, for my mental health, in fact, I wanted to get out of there. I wanted to get away from the abuse.

You didn’t --- ? --- So yes. Look, I did feel intimidated to a point. Not overly intimidated. I didn’t think he was trying to physically intimidate me or impose upon me, no.

Well, the truth is that you were concerned, but you weren’t intimidated, isn’t it? --- No.

Any reason you didn’t tell Mr Hadgkiss why you were feeling – that you were feeling intimidated? --- Sorry. Say – why would I tell Mr Hadgkiss that I wasn’t intimidated?

Well, let’s – I will withdraw that question. Why didn’t you tell Mr Hadgkiss that you felt intimidated? You were having --- ? --- I may not have been asked. Was I asked?

You were having a conversation about it. You said that you felt like Mr Tadic was trying to intimidate you, and you said, unfortunately for Mr Tadic, you weren’t easily intimidated. Why in that context wouldn’t you have said to Mr Hadgkiss, “Well, I was” --- ? --- That was at the very start, and I wasn’t intimidated at all.

No. This is after point C? --- After point C. Okay. Okay.

Is there any reason why you didn’t tell Mr Hadgkiss you were feeling intimidated? --- No. There’s no reason.

The reason is that you didn’t actually feel intimidated, isn’t it? --- No. No, not at all.

…

Now, when you went onto this site you had your list of seven issues, and nothing that happened that day obstructed you from looking at those seven issues and dealing with them, did it? --- No.

And nothing that Mr Tadic did that day hindered your ability to work on those seven matters, did it? --- Incorrect.

Well, the evidence you gave in your compulsory examination was that:

I was still able to go through the seven points for complaint, sir, so I don’t believe he obstructed me to that point.

And then you go on to list some other concerns. But then you say:

Whilst he may not have hindered my ability to work on those matters, I believe he took away –

and the sentence goes on. So your sworn evidence before Mr Hadgkiss and Mr Biggs was that he didn’t obstruct you from looking at the seven issues, and he didn’t hinder your ability to look at the seven issues? --- He certainly affected it. Can you read the rest of that out, though? I mean, you’ve stopped at a fairly important part of that statement.

…

Not too long ago, in answer to a question from my learned friend after lunch, you said that you believe, “Mr Tadic hindered my ability to carry out the inspection”; do you remember saying that a moment ago? --- Yes.

Why do you have that belief – that he hindered your ability to carry out the inspection? --- The manner in which he conducted himself. I was more worried about angering him further than really looking at what I was supposed to be looking at. I found my focus was on how he was. His passion was overflowing. It was fantastic. I applaud that, but the delivery was offensive – insulting. And I say I didn’t say “frustration”. I would say frustration would have been part of his emotion at that stage, because he wasn’t – I perhaps wasn’t dealing with things in the manner with which he wished – I think. But I certainly found my focus was not entirely as it probably should have been.

CONSIDERATION

258    The conduct and its consequences pleaded in [19] and [20] of the amended statement of claim are relied upon by the Director to establish the contravention of s 500 by Mr Tadic both in hindering and acting in an improper manner.

259    Following the factual conclusions set out in the previous section of these reasons for judgment, this section of these reasons for judgment the allegation that Mr Tadic intentionally hindered Mr Sharples will be considered first, and then the allegation that Mr Tadic acted in an improper manner will be addressed.

Hindering

260    A respondent hinders another person for the purposes of s 500 of the FW Act if the respondent intentionally acts in a way that is an appreciable interference which makes it more difficult for that other person to discharge their functions: Darlaston v Parker (2010) 189 FCR 1 at [52] (Darlaston). Further, hinder is not a word of art or capable of precise definition. It is a question of fact or degree whether in the circumstances of a particular case the interference was appreciable: Darlaston at [49] citing Plunkett v Kroemer [1934] SASR 124 per Napier J. There is no requirement that the respondent intended to hinder or obstruct, only that he or she intended the conduct that is said to hinder or obstruct: Setka v Gregor (No 2) [2011] FCAFC 90 (Setka) at [34].

261    Before addressing the pleaded case as established on the facts it is necessary to indicate several contextual factors relevant to whether Mr Tadic hindered Mr Sharples.

262    Both Mr Tadic and Mr Sharples had important functions under the OHS Act. The objects of the OHS Act are to secure the health, safety and welfare of employees and other people at work and to eliminate, at the source, risks to their health, safety and welfare (s 2). The principles which govern these objects require that the highest level of protection that is reasonably practicable in the circumstances should be provided (s 4). To this end inspectors, such as Mr Sharples, are given wide powers to enter premises (s 9). Further, an inspector may issue an improvement notice in respect of a contravention or likely contravention of the act or regulations. Where there is an immediate risk to health and safety, the inspector may issue a notice prohibiting an activity until the risk is removed (s 112). Failure to comply with such notices is an indictable offence and carries heavy penalties. It is an offence under the OHS Act to intentionally hinder or obstruct an inspector in the performance of their functions or exercise of their powers (s 125). Mr Maxwell QC, as he then was, stated in his report on the predecessor to the OHS Act (the Maxwell report):

1331. It is impossible to overstate the importance of the role of the inspectors in occupational health and safety. First, the effectiveness of the legislation in eliminating/mitigating risks depends critically on the performance of the inspectors. They are the arms and legs of the regulator, the embodiment of the Authority’s compliance activities.

263    The Maxwell report, which recommended that authorised representatives of registered employee organisations be given a limited right of entry to deal with safety issues, noted at [991] that: “consultation and participation are essential to the achievement of good health and safety outcomes.” The Maxwell report went on to note at [1006], under the heading, ‘Why the right of entry matters’ that:

…in the majority of Victorian workplaces the interests of workers on health and safety issues are unrepresented. In some workplaces, so I have been told, workers are apprehensive about reporting serious health and safety issues to the employer for fear of losing their jobs. This can even apply to elected HSRs, notwithstanding the protection which s. 54 affords.

264    Part 8 of the OHS Act gives effect to the recommendation of the Maxwell report regarding entry permits for authorised representatives of registered employee organisations. Mr Tadic held such a permit. The power to enter is given in respect of certain suspected contraventions of the OHS Act (s 87). In order to qualify for the issue of an entry permit as an authorised representative of a registered employee organisation the applicant must have completed an approved training course (s 81). The OHS Act expressly contemplates that an inspector and an authorised representative of a registered employee organisation might be on site together because s 89 gives the authorised representative of a registered employee organisation the function of requesting the attendance of an inspector when an issue arises between the authorised representative of a registered employee organisation and an employer.

265    A further contextual matter of significance is that the site suffered from a number of serious safety problems. That was not in contest in the proceeding. There was contention about the seriousness of those problems. I have accepted the evidence of Mr Tadic that at least each of the state of the handrail and the inadequacy of the lighting on the site constituted serious immediate risks of injury to workers on site within the meaning of the OHS Act.

266    Another factor relevant to the circumstances in issue in this proceeding is the dynamic of the interaction between Mr Tadic and Mr Sharples. Mr Tadic was a very experienced health and safety officer with a special dedication to the protection of workers from unsafe practices. He was frustrated that Mr Sharples did not respond appropriately to the safety issues on site. On the other hand, Mr Sharples was relatively inexperienced in the role of an inspector and particularly in relation to commercial building sites but was fairly confident in his own ability. His long experience as a prison officer meant that he was not easily intimidated.

267    The conduct alleged in [19] of the amended statement of claim should be considered against the background of these contextual features.

268    As explained earlier in these reasons for judgment, the Director has not established the allegation of conduct made in amended statement of claim [19(b)] that Mr Tadic said that the site should be closed down or the allegation made in amended statement of claim [19(f)] that Mr Tadic was angry, aggressive and combative.

269    The Director has established the allegation made in amended statement of claim [19(a)] that Mr Sharples requested Mr Tadic twice to limit his questions and comments to a minimum and until the end of the inspection, and that Mr Tadic failed to accede to that request. The reason Mr Sharples asked Mr Tadic to limit his intervention was that Mr Sharples did not appreciate his inspection being criticised. The Director has also established part of the allegation of conduct in amended statement of claim [19(c)], namely, that Mr Tadic told Mr Sharples that he was the worst inspector, that he was pathetic, and that he asked “Are you applying for a job with the builder?”.

270    Whether the proved conduct had the result that Mr Sharples was intentionally hindered by Mr Tadic will be addressed as part of the consideration of the allegations made in [20] of the amended statement of claim which plead the consequences of the conduct.

271    The Director has established the allegation of conduct made in amended statement of claim [19(d)] that Mr Tadic made a phone call to Mr Beacom. The Director has also established the allegation of conduct made in amended statement of claim [19(e)] that Mr Tadic made a remark on exiting the site. He was confirming that he intended to make a complaint about Mr Sharples. Both of these incidents occurred after the safety walk was over and did not hinder Mr Sharples in execution of his duty to investigate the safety issues on the site.

272     The next enquiry is whether the alleged conduct, insofar as it has been established on the evidence to the necessary standard, hindered Mr Sharples in the performance of his functions as alleged in [20] of the amended statement of claim.

273    The fact that Mr Sharples considered leaving the site alleged in [20(a)] of the amended statement of claim did not hinder his performance as an inspector. He did not act on the thought.

274    The allegations that Mr Sharples was distracted in that he did not complete an inspection of the whole site and was in that sense not as thorough as he would have liked formed part of both [20(b)] and [20(c)] of the amended statement of claim. That Mr Tadic failed to limit his questions and comments to a minimum and to the end of the inspection as alleged in [19(a)] of the amended statement of claim seems also to have led to Mr Sharples’ distraction. The evidence does not support the conclusion that Mr Sharples was hindered by Mr Tadic impeding Mr Sharples completing a full inspection of the site.

275    First, the route of the safety walk as described by each of the witnesses traversed most of the site. Mr Sharples could not help but see substantially all of that area in the course of the safety walk. In any event, Mr Sharples had the opportunity to visit the balance of the site after Mr Tadic and Mr Davies had left. Mr Sharples’ suggestion that he did not do so because he was so affected by Mr Tadic’s behaviour is not convincing. He remained on the site writing his reports for approximately two hours. In cross-examination, he indicated that he did not visit the whole site because of his prior engagement to go to the football. Additionally, if he believed that he should have investigated further, it was open to him to return on the next day or within a few days to complete the job. He did not do so. I do not accept that he foreshortened his investigation as a result of Mr Tadic’s conduct. These allegations are not made out on the evidence.

276    Insofar as Mr Sharples said that he was distracted because he had to listen to Mr Tadic throughout the safety walk, I do not accept that he was distracted from his task to an appreciable degree. In the circumstances, particularly in view of Mr Sharples’ inexperience and his sometimes inappropriate assessment of the safety risks, and in view of the statutory roles performed by Mr Sharples and Mr Tadic, it was necessary that Mr Tadic explain to him the nature of the complaints being made. Mr Tadic also drew Mr Sharples’ attention to potential safety risks that were not in the original complaint. In cross-examination, Mr Sharples conceded that it was perfectly proper for Mr Tadic to do so. That Mr Sharples had to listen to complaints made robustly and to views which differed from his own do not amount to hindrance by Mr Tadic. The Director contended that Mr Tadic’s conduct amounted to an attempt to influence Mr Sharples to exercise his powers under the OHS Act in a way other than Mr Sharples was inclined. That submission is not made out. Mr Tadic’s contribution was an integral and natural part of the interaction necessary to produce a fruitful inspection in accordance with the statutory functions of both Mr Sharples and Mr Tadic. Mr Sharples conceded as much when he agreed that authorised representatives have important things to tell inspectors about safety issues on site.

277    The allegation in [20(d)] of the amended statement of claim that the inspection took longer than if Mr Tadic had not engaged in the alleged conduct and Mr Sharples was thereby hindered is not made out on the evidence. As can be seen from the passages extracted at [154] and [251] to [252] of these reasons for judgment, Mr Sharples’ evidence on this issue was confused. Some of his evidence was that the safety walk was shorter because of Mr Tadic’s conduct for the reason that Mr Sharples wanted to get away from the hostile environment, and some evidence was that the safety walk took longer because of Mr Tadic’s conduct.

278    From Mr Sharples’ evidence as a whole I find that the time taken by him to deal with the seven issues was not appreciably more than normal. Mr Sharples’ evidence was that the investigation of the seven items took “a bit longer”. The inconsistencies and confusion in Mr Sharples’ evidence about the time taken to deal with the additional issues does not allow me to find on the balance of probabilities that they took longer than normal to inspect or resolve. Mr Sharples saved time by not inspecting the balance of the site beyond what he observed on the safety walk. He chose not to do this because he was on his way to the football and was on flex time doing this as “a favour to my boss”. That is not evidence of an appreciable hindrance in the performance of his duty caused by the conduct of Mr Tadic.

279    The allegation made in [20(e)] of the amended statement of claim that Mr Sharples phoned Mr Sullivan is not an allegation of hindrance at all. The call occurred after the safety walk had finished and after Mr Tadic had left the site.

280    Then it is alleged in [20(f)] that Mr Sharples felt hindered and intimidated. Mr Sharples’ direct answer during the compulsory examination that he felt that Mr Tadic’s conduct hindered him was given in response to a question from the Director. It is curious that the Director intervened in the questioning when it was being conducted competently and according to the proper process by experienced counsel. The Director intervened at a point where the answers given by Mr Sharples appeared to paint a picture of conduct which did not contravene the FW Act. The impression given is that the Director intervened in order to try to encourage Mr Sharples to bolster the case against the respondents. The role of the Director was to investigate not to suggest a case which the witnesses did not volunteer. The Director asked:

Is it fair to say that Mr Tadic’s demeanour, conduct … hindered you in any way?

The question was leading and put in such general terms that no weight should be placed on the answer.

281    In any case, Mr Sharples made it clear during the compulsory examination that if Mr Tadic had inhibited or obstructed him in the carrying out of his duty as an inspector, then he would have recorded the matter in the entry report. No such record was made. Mr Sharples did not take any action against Mr Tadic during the safety walk. Mr Sharples could have called the police. He could have directed that Mr Tadic leave the site (s 99(h) of the OHS Act). Mr Sharples did not do any of those things. I infer that Mr Sharples did not do so because he did consider himself to be appreciably hindered by Mr Tadic’s conduct.

Then, it is alleged that Mr Sharples felt hindered because he was intimidated by Mr Tadic. Even if it were established that Mr Sharples felt intimidated that would not on its own establish that he was hindered in the performance of his function. There would need to be evidence that Mr Sharples did something or failed to do something which impeded his inspection as a result of the intimidation. In any event, the evidence does not establish that Mr Sharples did feel intimidated. He told the compulsory examination that he did not feel intimidated. He then gave evidence in Court that he felt “intimidated a bit”. He could not explain the inconsistency. His evidence on the subject was confused. Other evidence makes it improbable that Mr Sharples felt intimidated by Mr Tadic in the course of the safety walk. Mr Sharples was employed for thirteen years as a prison officer in a maximum security prison in Alice Springs. For most of that time prisoners were held for life without parole. That created an environment of hopelessness which gave rise to everyday violence. In view of the nature of the conduct in which I have found Mr Tadic engaged it is not credible that Mr Sharples would have felt intimidated. There is no basis for the Director’s contention that Mr Sharples’ prior experience in the Northern Territory could only be relevant to whether or not Mr Sharples felt physically threatened by Mr Tadic’s conduct.

282    When Mr Sharples described his feeling “a bit intimidated” it is likely that he was reflecting his concern following Mr Tadic’s phone call to Mr Beacom to complain about the inadequacy of Mr Sharples’ inspection. Throughout his evidence it was plain that the complaint to Mr Beacom played heavily on Mr Sharples’ mind. The allegation that Mr Sharples felt hindered as a result of feeling intimidated by Mr Tadic is not made out on the evidence.

283    In the result, the Director has not established on the balance of probabilities that Mr Tadic’s conduct intentionally hindered Mr Sharples in the performance of his functions.

Otherwise Acting in an Improper Manner

284    The next question is whether Mr Tadic contravened s 500 of the FW Act by otherwise acting in an improper manner. In the context of the section, the reference to “otherwise” signals that acting in an improper manner is something different from obstructing or hindering: Setka at [30]. In R v Byrnes and Hopwood [1995] HCA 1; (1995) 183 CLR 501, Brennan, Deane, Toohey and Gaudron JJ said at 514-515:

…Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged defendant by reasonable persons with knowledge of their duties, powers and authority of the position and circumstances of the case.

285    Acting in an improper manner requires an objective assessment of the conduct in question. It is immaterial whether the actor knows or intends to act in an improper manner. Whether a person acts in an improper manner requires the Court to make a judgment about the standard of conduct of the actor.

286    The contextual matters referred to in [261] to [266] of these reasons for judgment are also relevant to this consideration. But there is an important further factor which sets the background for determining whether Mr Tadic acted in an improper manner, namely, that Mr Tadic formed the view that Mr Sharples was not responding appropriately to the seriousness of the safety issues. In particular, Mr Tadic thought that it was wrong for Mr Sharples to give Mr Regan a week to fix the balustrade and lighting issues. Whilst it is true that Mr Regan was prepared to address the complaints, in reality he had no option because the safety threats on site were on clear display. In these circumstances, Mr Tadic was entitled to form the view that Mr Sharples was not treating the safety issues seriously enough. It was not improper for him to express the view to Mr Sharples. Mr Sharples accepted that it was perfectly proper for Mr Tadic to point out safety issues that were not in the original complaint. But the Director says that Mr Tadic acted in an improper manner in the way he expressed that view to Mr Sharples.

287    On the facts found, Mr Tadic said to Mr Sharples that he was the worst inspector he had ever seen, that he was pathetic, and Mr Tadic asked him “are you applying for a job with the builder?”.

288    At first sight and stripped of the context of the particular safety walk these statements might seem to be abusive and beyond the bounds of propriety. However, the context governs the interpretation of the words. The statements take their meaning and colour from the circumstances in which they were said.

289    Where an inflamed situation arises on a building site over differing views on safety issues it may be a line not easy to draw between, on the one hand, improper conduct arising from abuse by one participant to another and, on the other hand, a reasonable exchange of views about the safety issues on the site. The clash of opposing views might amount to improper conduct if rough exchange degenerates into unreasonable personal abuse and aggression. But an exchange of strongly expressed opinions even in a rough and robust way may be seen as acceptable interaction in such a situation.

290    The statements made by Mr Tadic were the way he conveyed to Mr Sharples that he disapproved of the way Mr Sharples was responding to the safety issues. They were robust expressions but directed to an inspector who appeared to Mr Tadic to be “cocky” and confident of his own judgment. The worst inspector comment and the pathetic comment reflected Mr Tadic’s actual view of the quality of Mr Sharples’ work which view Mr Tadic backed up by making a formal complaint to WorkSafe about Mr Sharples. In other words, those comments were not directed as personal abuse but were rather aimed to convey a genuine opinion about the quality of Mr Sharples’ work. The reference to Mr Sharples’ working for the builder was a reference to Mr Sharples making decisions which favoured Mr Regan over safety to the workers on site. It was a sarcastic comment. It was not said as an allegation of corruption. I find that Mr Sharples took these comments as robust expressions of Mr Tadic’s opinion of how safety issues should be handled rather than as outbursts of abuse directed to Mr Sharples in a derogatory personal way. Indeed, Mr Sharples said that he admired the passion which Mr Tadic demonstrated in favour of workers’ safety.

291    Having listened to the whole of Mr Sharples’ evidence, it is clear to me that his feelings of concern and threat arose not when these comments were made but when Mr Tadic phoned Mr Beacom at the end of the safety walk. Prior to that point, Mr Sharples was capable of, and did, take Mr Tadic to be expressing his own views with vigour. Until Mr Tadic said that he would call Mr Beacom, Mr Sharples was content to rely on his own judgement. He felt a degree of discomfort only because Mr Tadic was expressing a view which contested his own assessment and because Mr Tadic expressed the view with conviction and strength.

292    Mr Tadic’s call to Mr Beacom was not improper conduct. He was entitled to pass on his concerns about the way the inspection was conducted. He had a professional opinion based on long experience, his concerns were justified, and he had good reason to follow up with Mr Beacom.

293    Some of the statements made by Mr Tadic were spoken louder than normal conversation. He explained that he was frustrated. It was not improper for him to speak loudly in a situation of frustration.

294    Swearing punctuated much of the conversation on site. Absent any accompanying aggression or anger the regular use of swear words reflected the idiom of the building site. It is revealing that Mr Sharples gave evidence that he used swear words on the safety walk himself. Mr Sharples said that he used reflective listening and paraphrasing to deal with Mr Tadic, including using the phrase, “I understand you’re not fucking happy” [emphasis added]. Indeed even in the formality of the courtroom Mr Sharples used colourful language to explain his position. For instance, when asked why he was guarded in his response to Mr Tadic’s criticism, he said:

Because I didn’t want to enrage him any further, sir. I did not want this to escalate to the point where I think he would have lost his shit, but I don’t – I didn’t want him to go any further. I wanted to appease him, and I found myself doing that, trying to anyway.

[emphasis added]

Mr Sharples, again in the course of giving evidence about his reaction to Mr Tadic’s statements, said:

You know, I was more worried about pissing him off than anybody else. I was more worried about him than doing the visit, and that’s not the way it should be.

[emphasis added]

In the compulsory examination when Mr Sharples was pressed by the Director after he said that he had exhausted his recollection, Mr Sharples replied “[i]t’s a bloody year ago”.

295    These references are not included by way of criticism of Mr Sharples but merely to show that he routinely used much the same type of language which Mr Tadic used. It was, as for many Australians, just the usual way of communicating. It may not be regarded by all as pretty, but in the context of the inspection it was not improper.

296    The applicant referred to a number of cases in which permit holders had been found to have contravened the improper manner limb of s 500 of the FW Act. The applicant contended that these cases showed that Mr Tadic's conduct fell within the meaning of "otherwise acting in an improper manner." Prior cases can only provide limited guidance in an assessment of the propriety of conduct. That is because the determination whether particular conduct is improper is dependent on the facts and circumstances in which the conduct occurred. It is of little assistance simply to refer to words found to have amounted to improper conduct in other cases. None of the cases cited reflected sufficient similarity of circumstances to assist in the resolution of this case. In the cases referred to by the applicant there was an element of personal abuse or physical threat not present in Mr Tadic’s conduct. In Director, Fair Work Building Industry Inspectorate v Myles and Ors [2014] FCCA 1429, a permit holder was found to have contravened s 500 by calling a site foreman a “fuckwit”, “deadbeat” and “dickhead”. Those terms were personally abusive, whereas in the present case, Mr Tadic's words were directed towards Mr Sharples' performance of his duty as an inspector and understood by Mr Sharples as so intended. In Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672, the permit holder's abuse was directed to the nationality of a manager: “Is this shithole good for you fucking Americans? This is not fucking America. You think you can treat us like shit, you fucking Americans.” There is no relevant parallel with the present case. In the other cases referred to, the contravention comprised direct threats of physical harm. In Setka, Mr Setka said to the general foreman on site, “If you kill anyone on this job I am going to quit my fucking job and get you.” In Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668, the permit holder said words to the effect of, “You’re a pack of murderers, we’re gonna get you.” In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293, a CFMEU official said the employer “must walk around site with blinkers on to not see the issues raised” in an aggressive, loud and rude manner. Mr Tadic’s conduct was direct but he was no more forceful than the circumstances on the site justified.

297     The Director has not established on the balance of probabilities that Mr Tadic acted in an improper manner as was alleged.

Liability of the CFMEU

298    As the primary liability has not been established, it is not necessary to consider the liability of the CFMEU.

Conclusion

299    It follows from these reasons for judgment that the application is dismissed.

Associate:

Dated:    8 March 2017