FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Cup of Tea Case) [2018] FCA 402

File number:

VID 333 of 2015

Judge:

NORTH J

Date of judgment:

26 March 2018

Catchwords:

INDUSTRIAL LAW – allegations of contraventions of s 500 of the Fair Work Act 2009 (Cth)whether the respondents sought to exercise a right conferred by s 484 were exercising or seeking to exercise rights under Pt 3-4 of the Act – whether the entry on a site for a social purpose falls within s 484 of the Act

INDUSTRIAL LAW – allegation of contraventions of s 348 of the Fair Work Act 2009 (Cth) – whether respondent threatened to take action against a contractor – oral evidence from two witnesses of the same conversation – evidence from both witnesses exactly balanced – burden of proof is not discharged

Legislation:

Fair Work Act 2009 (Cth) ss 348, 500

Date of hearing:

6 December 2016 and 10 March 2017

Registry:

Victoria

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

83

Counsel for the Applicant:

Mr D Star QC with Mr R O’Neill

Solicitor for the Applicant:

Lander & Rogers

Counsel for the Respondents:

Dr G Boas

Solicitor for the Respondents:

Slater & Gordon Lawyers

ORDERS

VID 333 of 2015

BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

MARK TRAVERS

Second Respondent

ADAM HALL

Third Respondent

JUDGE:

NORTH J

DATE OF ORDER:

26 MARCH 2018

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:

1    The Australian Building and Construction Commissioner, the Commissioner, the applicant, previously the Director of the Fair Work Building Inspectorate, alleges that Mark Allan Travers, the second respondent, contravened s 500 and s 348 of the Fair Work Act 2009 (Cth) (the Act), that Adam Hall, the third respondent, contravened s 500 of the Act, and that the Construction, Forestry, Mining and Energy Union, the CFMEU, the first respondent, was also responsible for the contraventions both under ss 793 and 550 of the Act and at common law. The Commissioner seeks declarations of contraventions and the imposition of pecuniary penalties on the respondents.

Relevant Statuory Provisions

2    Section 500 of the Act provides:

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

[Emphasis added.]

3    The right in question in this case is the right provided in s 484 of the Act as follows:

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

(a)     who perform work on the premises; and

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

(c)     who wish to participate in those discussions.

[Emphasis added.]

4    Section 348 of the Act provides:

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

5    Section 347 of the Act relevantly provides that a person engages in industrial activity if the person:

(b) does, or does not:

(iv) comply with a lawful request made by, or requirement of, an industrial association;

OverVIEW

6    The critical issue in respect of the s 500 allegations is whether Mr Travers and Mr Hall were exercising or seeking to exercise a right under s 484 of the Act to enter the site for the purpose of holding discussions with an employee, Rodney Shane Duggan. The resolution of that issue depends on the evidence of the events in question. That evidence demonstrates that Mr Travers and Mr Hall visited the site solely for social purposes, to have a cup of tea with Mr Duggan, and were not exercising or seeking to exercise rights under s 484 of the Act. Thus, the allegations of contraventions of s 500 of the Act have not been made out.

7    The critical issue in respect of the s 348 allegation against Mr Travers is whether the Commissioner has established, on the balance probabilities, that Mr Travers said to David John White, in a phone conversation, that if he called the police he would be starting a war and it would be no different to what was done to Kane Constructions, that is to say, there would be disruption on the site. It has not been established on the balance of probabilities that the words were said. Hence the allegation of a contravention of s 348 of the Act has not been made out.

8    In these circumstances, no occasion arises for consideration of the responsibility of the first respondent for the alleged contraventions.

9    For the reasons which follow the application is dismissed.

The Facts

10    Save in several critical areas identified below, the facts were not in contest.

11    The following findings are based on the evidence given by Luke Anthony Naughton, the project manager employed by McConnell Dowell on the PUG project, Gavin Carter, the supervisor employed by McConnell Dowell, and Mr White, now retired, previously employed by McConnell Dowell as the operations manager for the southern region, each of whom gave evidence for the Commissioner, and on the evidence given by Mr Travers, Mr Hall and Mr Duggan, a labourer employed by McConnell Dowell on the site and CFMEU shop steward, each of whom gave evidence for the respondents.

12    Mr Travers and Mr Hall were organisers employed by the CFMEU, and were permit holders within the meaning of s 500. Construction work was being undertaken at Melbourne Airport by three contractors, McConnell Dowell, Fulton Hogan, and Negri.

13    McConnell Dowell were engaged on the PUG project which involved the removal and replacement of the concrete taxiways P, U and G. McConnell Dowell employed five direct employees on the work. McConnell Dowell had a compound consisting of demountable buildings used as offices and a lunch room. The compound was on the edge of the airport area. The work was airside, that is to say where aircraft operated. Beyond the compound, which was landside, was gate 22 which provided airside access and was subject to security control.

14    The Fulton Hogan compound was immediately adjacent to the McConnell Dowell compound. The PUG project had been underway, on one version, for about 18 months, or on another a version, for three years, when the events in question occurred. Mr Travers was the main CFMEU organiser for the project. Mr Hall was the CFMEU organiser for the Fulton Hogan employees. Mr Travers had visited the McConnell Dowell site about three or four times on a three or six monthly basis and had not been there for the last three months. There had been no safety issues on the site in the past. Mr Naughton dealt with Mr Travers on the PUG project which he thought had been underway for three years. His relationship with both Mr Travers and Mr Hall was good, there were no difficulties. He had met Mr Hall once earlier when Mr Naughton worked for Negri.

15    On 17 June 2014, Mr Travers had his car serviced. Mr Hall picked him up, and Mr Travers went with Mr Hall whilst the car was being serviced. Around 12.30 pm Mr Hall stopped at the Fulton Hogan compound to speak to the project manager and the shop steward. In the meantime, Mr Travers decided to walk over to the adjacent McConnell Dowell site and visit Mr Duggan.

16    Around his lunchtime, Mr Duggan received a phone call from Mr Travers. Mr Duggan explained in evidence-in-chief what happened then:

He [Mr Travers] said that he was – his car was in for a service and he was next door and he would just call over and have a cuppa and say hello.

Okay. And what did you say to him? --- I said, “Yes, no problems. Yes.”

Okay. And did he come over? --- Yes.

All right. So when he came over, where did you meet? --- I’m not sure. It would have been around the lunchroom somewhere, but not exactly sure.

Okay. And what did you do? --- Went and had a cup of tea.

Where was that? --- In the lunchroom.

All right. What were you discussing --- I’m not exactly sure, but it would have just been general – you know, “I’ve been on holidays,” and he has got somewhere down the coast and I go for trips interstate, so just general sort of – just general talk like people do.

Okay. During the course of that conversation were there any safety or industrial relations issue raised? --- No, not – nothing to me; nothing specific.

Do you recall - - -? He might have asked how the job was going, but that was just – you know, of course he is going to ask that, yes.

And do you recall anything specific being raised in relation to the worksite or the project? --- No.

17    Mr Duggan elaborated in cross-examination thus:

And you can’t recall two and a half years later whether there was some work topics in your conversation with Mr Travers and Mr Hall, can you? Well, nothing specific, no.

Well, you say “nothing specific”. You can’t say that you didn’t talk about some work issues in the course of that conversation? Well, we would have asked – we would have been – it’s like I said earlier. We would have mentioned the job – “How’s it going?” – just general, but there was nothing, no specific issues at the time.

18    Mr Travers in evidence-in-chief described the conversation with Mr Duggan as follows:

So I went and got a cup of coffee – a cup of tea, sorry, and me and Rod were just having a chat. He does a lot of travelling throughout Australia, four-wheel driving and that, so basically that’s what I was talking about. He hadn’t long been on another one of his trips. And I’m not sure exactly, maybe 15, 20 minutes – this was at lunchtime too, by the way – when Luke and another bloke, I don’t know his name, he, basically, come into the – they both come into the crib hut and asked me to leave. I said, “Well, I’m here on more of a social visit. I’m not here – it had nothing to do with work. I was just here to say hello to Rod.”

19    Mr Hall finished his visit at the Fulton Hogan site and joined Mr Travers and Mr Duggan, next door at the McConnell Dowell site.

20    Mr Naughton became aware that Mr Travers and Mr Hall were on site. In the past such visits were informal. Before the events in question, Mr Travers and Mr Hall did not give formal notice of visits and McConnell Dowell did not require any such notice to be given by them.

21    But unknown to Mr Travers and Mr Hall things had changed for McConnell Dowell by 17 June 2014. On another site McConnell Dowell had not enforced the right of entry provisions of the Act and, as Mr White explained, “we were looking down the barrel of sanctions by the Victorian government for tendering future work … we were very sensitive to the fact that we [did not have] any room to move … we were fairly jumpy about the situation”. As a result of those events, McConnell Dowell staff had received refresher training about a month before concerning the requirements of the right of entry provisions of the Act.

22    Thus, faced with the presence of Mr Travers and Mr Hall, who had not given notice of their intention to visit the site, Mr Naughton phoned Mr White. Mr White said Mr Naughton must tell Mr Travers and Mr Hall to leave. Mr Naughton then went with Mr Carter and did so.

23    Mr Naughton explained the nature of the change in practice. When relating the events on 17 June 2014 to the Court, Mr Naughton conveyed the impression that the visit of Mr Travers and Mr Hall gave him no cause for concern as a practical matter in the administration of the site, but that, reluctantly, he had to implement the new policy adopted by McConnell Dowell in response to pressure from the government. He explained the position to the Court thus:

Well, you’re not giving me the impression that you saw either any danger, any wrongdoing that you want to tell the court about as having suggested to you that this was a really bad thing that happened? --- No. But we – our company prior to this event had had a sanction against it for not complying with right of entry, which had led – which was – so we had been, I suppose, briefed to ensure we were in strict adherence with the right of entry process which

You had – McConnell Dowell - - - ? McConnell Dowell.

- - - had had a sanction from? Fair Work.

I see? --- FWBC.

I follow? --- Prior to this event, for issues regarding right of entry, etcetera. So we had been briefed to ensure 100 per cent compliance going forward.

I see? --- And at that point we had – as a result, I had arranged the refresher training for our project staff, which had occurred, as I say, about one month before this event. So in relation to, yes, right of entry there was sort of like a zero tolerance sort of policy. So that’s why in this case – it was the first case or event after that sanction and our refresher training that the union officials had visited site.

Yes. Thank you. Well, that’s very helpful to provide a context, because I felt that there was certain reluctance in the way you were explaining how things were happening that it doesn’t – you know, this is not a case of a concrete pour that was stopped or a big building site that – where there was mass industrial action. I mean, on the scale of things it’s of – apparently, from what I presently see, a matter of very minor significance? --- Yes, but none of the questioning had – I was answering questions. None of them led me to explain that position until just now.

24    Mr Naughton said “it wasn’t a comfortable thing for [him] to be asking Mr Travers and Mr Hall to leave”, in part because he “had a good working relationship with them”. He said that Mr Travers, Mr Hall and Mr Duggan had an “incredulous or surprised look on their face” in response to the demand to leave.

25    Mr Hall described in evidence-in-chief what happened when Mr Naughton told him and Mr Travers to leave:

Okay. And what happened then? What happened when they arrived? --- Well, they basically sort of said, “Well, you have to leave site.” We said, “What for?” I said, “We’re just here having a cup of tea with Rod Duggan.” “We have been instructed to – you haven’t give right of entry.” I said, “We have never give [sic] a right of entry on this job for at least 18 months. What’s – what’s the problem now?” “I have been instructed by management.” And I basically said, “Who was it?” “David White.” Yes. “Could you ring David White up?” He went outside in the foyer to ring David White. Basically - - -

While he was out in the foyer, did you have any conversations with anyone? --- No. Oh, Carter. I said to Carter, “This is bullshit, mate. We have never had a right of entry here. We have always had a good relationship. There’s no drama on the job. Why is all this happening”? He goes, “Mate, I reckon it’s bullshit too, but it’s out of my hands.”

26    Mr Travers described, in evidence-in-chief, the conversation with Mr Naughton at that time as follows:

they both come into the crib hut and asked me to leave. I said, “Well, I’m here on more of a social visit. I’m not here – it had nothing to do with work. I was just here to say hello to Rod.” With that they wouldn’t take that. I said, “Look, I’ve nearly finished. I will be five minutes and I’m going, so I don’t know why everyone is so excited all of a sudden.” With that he said, “I have to call the police if you don’t leave.” I told him to ring his boss, White.

27    Mr Naughton described the circumstances in evidence-in-chief as follows:

I approached Rod, Mark and Adam and asked them to leave as they hadn’t given me 24 hours’ notice under the right of entry process.

All right. Rather than summarising, are you able to recall what it was that you said? --- I said, “Gentlemen, you’re going to have to leave – I’m going to have to ask you to leave. You’ve not given me the 24 hours’ notice in accordance with the right of entry process.”

All right. What response did you get? --- They said, “We don’t have to give you 24 hours’ notice.”

You say they said. Can you recall whether it was Travers or Hall or both who said that? --- It was – it was both. They sort of spoke over each other.

Okay. Was there anything else said? --- Mark said, “I’m just here to catch up on my mate, Rod.”

That’s Mark Travers obviously? --- Yes.

And did you respond to that? --- I said, “I understand, but I’m going to have to ask you to leave.”

All right. And was there a response to that? --- Mark said, “We’re here to discuss a safety issue but call whoever you need to call.”

28    In relation to Mr Naughton’s evidence concerning Mr Travers mentioning a safety issue, Mr Naughton explained further in cross-examination:

You said in your evidence-in-chief that there was a point at which Mr Travers said to you, “We’re here to discuss a safety issue. But call whoever you need”? --- Yes. Yes.

And that was in response to you saying you would have to call the police. Was that right? --- I would think so, yes.

Okay. You’ve confirmed already in your evidence that there were no safety issues in play at the time? --- Not that I’m aware of.

There had been no safety issues in play for some time? --- Not that I can recall.

There were no safety issues on the horizon in relation to the project that you knew of? --- No.

HIS HONOUR: And, Mr Naughton, you would be the person who would know about safety issues, if there were any, would you? --- Yes, they would have been reported back to me through our reporting process from either personnel onsite, supervisors or safety adviser or even the client, yes.

Thank you.

DR BOAS: And you were aware of no such safety issues at the time of this event? --- Yes.

None emerged subsequent to this event that you can recall? --- No.

There was no conversation between you and Mr Travers in relation to anything relating to safety or even of an industrial nature until some time much later? --- By that statement, he said he was here to discuss the safety issue. There was nothing raised at that time.

There was nothing raised at that time. There was nothing raised subsequent to that? --- No.

29    At 4.16 pm on 17 June 2014, Mr Naughton sent an email to Mr White and others about what had transpired on the site that afternoon. The record of the response to Mr Naughton’s demand that Mr Travers and Mr Hall leave the site was “they refused and told me to go call the police or whoever I needed to call”. There was no mention of a reference to a safety issue in that email. On 26 June 2014, Mr Naughton made a statement to a Fair Work Building and Construction inspector. For the first time mention of a safety issue was reported as part of the conversation with Mr Travers. Mr Naughton explained in his evidence that the email was intended as a summary of the events and hence the mention of the safety issue was not included.

30    Mr Carter, who was present at this time, made no reference to the mention of a safety issue.

31    Mr Hall said in examination-in-chief that he did not discuss any issues relating to the worksite on 17 June 2014. In cross-examination he said that industrial issues were definitely not discussed and that he could not recall if some issues to do with safety were discussed. He said that he was confident that Mr Duggan was competent to deal with health and safety issues on site. He said that if there were health and safety issues to be dealt with by the organiser, those issues would have been dealt with through Mr Naughton.

32    Mr Duggan gave evidence in cross-examination about the discussion as follows:

Now, when – I suggest to you though that when Mr Naughton came in and asked the two workers to leave, that he – that Mr Travers said to him, “We have just been having a chat about safety with Rod”? --- No, he said it was a social call. He said, “I’m not even here as an official. I’m just here having a chat.”

33    Mr Naughton then left the room and rang Mr White again to tell him what had happened. In the following phone call, Mr White told Mr Naughton to tell Mr Travers and Mr Hall again to leave and to call the police if they did not do so.

34    Mr Naughton returned and said to Mr Travers and Mr Hall that they had to leave because they had not given 24 hours’ notice, and, if they refused, he would call the police. Mr Hall asked Mr Naughton who was giving him instructions. Mr Naughton replied that Mr White was the person. Mr Naughton then left and called the police.

35    Mr Travers said that once the police are called it is the practice of union officials to remain until the police arrive. For that reason he and Mr Hall waited until the police arrived at the site.

36    At about 12.50 pm Mr Naughton called the police. At about 1.15 pm four Australian Federal Police officers arrived in two vehicles, took some personal details and left.

37    In the course of these events, Mr Travers phoned Mr White and asked him “what the go was, because we have never had to go through this sort of issue before”.

38    Mr White gave evidence-in-chief of that conversation as follows:

I then had the phone call from Mark Travers who said what he was doing. He was going to talk to the shop steward. He was only going to be there five minutes. He’s going to leave after that. I told him he – he shouldn’t be there. We have to call the police. That’s right. And then he said something along the lines of, “If you call the police you will be starting a war, and – and we will deal with you like we have with Kane Constructions.”

Did you understand, or at least did you have an understanding, of what he might be referring to when he referred to Kane Constructions? --- At or about that same time there was an ongoing dispute at a Kane Site out in Ringwood or Box Hill at a swimming pool I recall, and there was almost daily disruption on that site. Yes.

And given that context, what did you understand him to mean when he said it would be like the situation with Kane? --- I – I expected he – he was – he was more or less intimating that they were going to be out on this PUG site on a daily basis giving us the same sort of industrial workover that they were giving Kane.

What tone of voice was he using when he said that? --- Not at all aggressively, no. It was just a telephone conversation. I asked him to leave or we would have to call the police. He said, “We’re not leaving and if you do that it’s game on, and we will deal with you like we have with Kanes.”

39    Although Mr Carter heard some of the phone conversation between Mr Travers and Mr White, he did not give evidence that he heard Mr Travers mention starting a war or a reference to Kane Constructions.

40    Mr Duggan also overheard part of the conversation between Mr Travers and Mr White. He said he did not hear Mr Travers mention war or Kane.

41    Mr Travers denied that he said to Mr White “if you’re doing that you are starting a war and it will be no different than what we have done with Kane”, and was cross-examined about a dispute involving Kane Constructions as follows:

Now, at this time there was a dispute going on between the Union and Kane Constructions; is that right? --- I think so.

And there had been, as you were aware of, Union officials from the CFMEU turning up at various Kane Construction sites around Melbourne at that time? --- I had one of them myself.

You attended at one yourself, did you? --- I had a job in my area from Kane’s, yes.

Yes. And at that time the Union was conducting a campaign against Kane? --- I don’t know. It might have been for an agreement. I’m not sure. There was a campaign. I’m not sure what it was. It’s a fair while ago now. It might have been EBA time possibly or – yes, I’m not sure.

There had been disruption of the Emporia apartment site? --- The what, sorry?

Emporia apartments? --- What - - -

Did you know about that? --- Where’s that? I don’t - - -

All right. Did you know about it or not? --- I don’t know where the Emporium apartments are.

All right? --- Yes.

What about the Epworth redevelopment? --- They’re not my jobs, so if they’re not my jobs, I – my job is – my Kane’s job in Broadmeadows is exactly the same as what we have just been talking about for the last half an hour and that is I never put a right of entry in there either. I had the same relationship with them that I had with McConnell & Dowell.

THE SECTION 500 ALLEGATION

42    The contravention of s 500 of the Act alleged by the Commissioner required proof that Mr Travers and Mr Hall exercised or sought to exercise a right conferred by s 484 to enter the compound for the purpose of holding discussions with Mr Duggan.

43    The first issue to be considered is the factual issue, namely, for what purpose did Mr Travers and Mr Hall enter the premises.

For what purpose Mr Travers and Mr Hall enter the site?

44    The evidence is replete with references to Mr Travers visiting his friend, Mr Duggan, to have a cup of tea. That was the reason for the visit which Mr Travers gave to Mr Duggan and also to Mr Naughton. When Mr Travers and Mr Duggan met they talked about their common interest in four wheel driving. The evidence to that point described a wholly social visit.

45    One of the contested factual issues is whether Mr Travers entered the site to discuss a safety issue. The Commissioner relied on evidence given by Mr Naughton that Mr Travers told him that “we are here with Rod discussing a safety issue”.

46    Mr Travers denied that he said to Mr Naughton that he was on site discussing safety issues with Mr Duggan.

47    Mr Travers was a convincing and reliable witness. He gave evidence in a direct and forthright way. He had a clear recollection of that conversation and gave the impression of providing an honest account of the circumstances to the Court.

48    Mr Travers’ denial of the mention of safety issues is consistent with the fact that no safety issues were current on the site and the project had been free of safety issues.

49    Further, Mr Travers had a reason to speak to Mr Duggan without reference to work issues because they shared an interest in four wheel drive travel and Mr Travers knew that Mr Duggan had recently been on a trip.

50    Then, if a safety issue arose on site, it would be expected that, if it were necessary to involve Mr Travers, then Mr Duggan would have taken the initiative. It seems unlikely that the organiser would raise the matter without a prior report from the site.

51    Mr Naughton’s evidence of the reference to safety was at a high level of generality. No specific safety issue was indicated.

52    Importantly, when Mr Naughton sent the email to Mr White on the same day as the events had occurred, he did not make any reference to the mention of a safety issue. It was only nine days later that such a reference was made in the statement which Mr Naughton made to the Fair Work Building Industry inspector. Mr Naughton explained the absence of any reference to the safety issue in the email. He said that the email account was a summary of the events rather than a full account of them as appeared in the later statement.

53    Generally, Mr Naughton was a straightforward witness. He gave evidence to the best of his recollection. In respect of his account of the events of the day there is no reason to doubt his general accuracy. However, on the subject of the conversation about a safety issue his evidence was defensive and rather less credible than the rest of his evidence.

54    On that subject, the evidence of Mr Travers should be preferred to the evidence of Mr Naughton. Apart from the impressions which both witnesses made in the witness box, the probabilities are against the mention of a safety issue when none was identified and none existed.

55    No assistance on this issue is provided by the evidence of Mr Duggan or Mr Hall. Mr Duggan did not recall any specific matter being raised as appears from the extract from his evidence-in-chief set out in [16] of these reasons for judgment, and from the extracts from his cross-examination set out in [17] of these reasons for judgment.

56    It is clear from his evidence that Mr Duggan had no recollection of any reference to a safety issue and was speculating on what might have been discussed. He agreed in cross-examination that he had no particular reason to think of the events in question between when they occurred and when he was asked to be a witness in 2017. He said “yes, it was two and a half years ago. It’s a bit vague”.

57    Mr Hall said he could not recall safety issues being discussed.

58    I find that on the balance of probabilities Mr Travers did not say to Mr Naughton that “we are here with Rod discussing a safety issue”, or that safety or work issues were discussed.

59    The Commissioner argued that even if the direct reference to a safety issue was not made by Mr Travers, the Court should infer that the visit of Mr Travers was at least in part to discuss matters relating to work with Mr Duggan. The circumstances from which that inference should be drawn are that Mr Travers and Mr Hall were organisers, that the visit occurred on the worksite, that the discussion was held with the CFMEU delegate, and that Mr Travers usually visited every three to six months and had not been there for the previous three months.

60    The Commissioner also relied on evidence of Mr Naughton that after the police left, Mr Duggan followed Mr Travers and Mr Hall to the car and Mr Duggan returned to the site with some colourful leaflets or pamphlets. Mr Duggan explained what happened on that occasion as follows:

All right. And then, right at the end, after the police had come and the guys were leaving, you went down to the car with him, didn’t you? --- Yes.

And they gave you some pamphlets? --- No, they gave me a business card as the police wanted – wanted their ID. Mark gave the police a business card and Adam didn’t have any on him, so he went to the car and I grabbed it and bought it back for him.

61    Neither Mr Travers nor Mr Hall could remember whether Mr Travers had given Mr Duggan some pamphlets. Mr Duggan was the only person directly involved in the transaction who knew whether Mr Travers gave him pamphlets. He said that Mr Travers had not done so. That evidence should be accepted.

62    The circumstances relied on by the Commissioner must be viewed against the direct evidence of Mr Travers that he went on site to say hello to Mr Duggan, to have a cup of tea and to pay a social visit, the evidence of Mr Duggan that no specific safety issues were discussed, and that Mr Travers said to Mr Naughton that the visit was a social call to have a chat and that he was not there as an official. Further, Mr Travers and Mr Duggan chatted about their common interest in four wheel driving and Mr Duggan’s recent four wheel drive trip. Finally, there were no existing safety issues to discuss. In view of these circumstances, no inference should be drawn that Mr Travers and Mr Hall were on site for the purpose of discussing work issues.

63    I find on the balance of probabilities that Mr Travers and Mr Hall entered the site solely for the purpose of a social visit to a friend.

The construction issue

64    The legal question then arises whether the entry on site solely for a social purpose falls within the description in s 484 of the Act as an entry for the purpose of holding discussions with an employee who works on the site.

65    The Commissioner submitted that s 484 of the Act encompassed an entry on premises by permit holders solely for the purpose of social discussions with workers on site. The Commissioner argued that the nature of the discussions was not limited to discussions about work.

66    The consequence of such a construction can be seen in a simple example. Imagine that Mr Duggan and Mr Travers and their families were friends. Mr Duggan was working on the McConnell Dowell site. He packed himself lunch but forgot it at home. Knowing that Mr Travers was on the road, he phoned Mr Hall and asked him to collect his lunch from his home and bring it to work. Mr Travers collected the lunch. Mr Travers also decided to ask Mr Duggan to come to the football with him on the following Saturday. When he got to the site he took the lunch to Mr Duggan and they discussed going to the football together. The Commissioner would say that Mr Travers’ entry on site was as a permit holder exercising a right of entry for the purpose of holding discussions with an employee who performs work on the premises within the meaning of s 484 of the Act.

67    The vice in such an approach to the construction of s 484 of the Act is that it focuses on the reference to the activity of holding a discussion without taking into account the context provided by the section and by Part 3-4 within which the section is found. The particular discussions to which the section is directed are discussions which take place between a permit holder and a person who performs work on the site. That worker must be one whose industrial interests the permit holder’s organisation is entitled to represent. The contextual features indicate that the discussions in question must relate to the work performed and the representational role of the permit holder.

68    That construction is supported by s 480 of the Act which sets out the object of Part 3-4 which deals with the right of entry. The object of the Part is stated to be to provide a balance between the representational role of organisations and the right of occupiers and employers to go about their business without undue inconvenience. The right of entry is thus a right which is bestowed for the purpose of the representation of workers who are members of the organisation.

69    The Commissioner referred to passages in the judgments of White J in Director of the Fair Work Building Inspectorate v Construction Forestry Mining and Energy Union and ors [2015] FCA 1293 at [72] and Charlesworth J in Director of the Fair Work Building Inspectorate v McDermott [2016] FCA 1147 at [114], to support the argument that discussions in s 484 of the Act should be read broadly and include wholly social discussions. The passages, however, do not support that argument. In each case the officials were clearly exercising a representational role. They were not cases about purely social engagements.

70    The Commissioner further argued that such a construction would allow permit holders to avoid the operation of the statutory conditions governing the right of entry by claiming that their visit was solely a social visit. To allow permit holders to do so would create uncertainty for occupiers and employers and that would not meet the object of the Part which places the right of occupiers and employers to go about their business without undue inconvenience into the balance. The argument should not be accepted. First, the circumstances of most visits will flag the purpose of discussions without much room for debate. In other words, the uncertainty argument is unlikely to be a live issue in most cases. Second, the occupiers of sites are protected by the law if they do not wish social encounters to occur on site. The laws of trespass, both civil and criminal, are available to those occupiers. Instead of proceeding under the Act in this Court for pecuniary penalties, the occupiers could proceed in a State court on a cause of action in trespass for an injunction and/or damages, or have the police charge the intruders under the criminal law. The inconvenienced occupier is not left without a remedy. It is just not the remedy claimed in this proceeding.

71    In the result, Mr Travers and Mr Hall entered the site solely for the purpose of a social discussion with Mr Duggan. Section 500 of the Act does not apply to an entry for that purpose. The allegations against Mr Travers and Mr Hall under s 500 of the Act are therefore not made out.

THE SECTION 348 ALLEGATION

72    The Commissioner alleges that Mr Travers contravened s 348 of the Act by saying to Mr White that if Mr White called the police to the site “you are starting a war and it will be no different to what we have done with Kane”.

73    The evidence upon which the Commissioner relied is the oral evidence of Mr White that Mr Travers made that statement to him in a phone call on 17 June 2014. Further, on 27 June 2014, Mr White provided a statement to a Fair Work Building and Construction inspector which included reference to those words used by Mr Travers.

74    The Commissioner contended that the evidence of Mr White should be accepted because he had no interest in the outcome of the proceeding, there was no antagonism between him and Mr Travers, he had no motive to lie and his evidence was consistent with the contemporaneous statement made to the inspector.

75    Mr Travers denied that he said the words in question. On his behalf it was contended that it was improbable that he made the threat because the relations between Mr White and Mr Travers were good, the site had been free of safety issues, and there was no extant safety concern. The surrounding circumstances did not appear to call for such a spirited response. That benign nature of the incident is captured by Mr White in the concluding sentence of his statement which referred to a meeting he had with Ralph Edwards, whom he referred to as the President of the CFMEU, on the day after the events in question, as follows:

18.    I met with Edwards regarding another project and we had a brief discussion about the events on 17 June 2014 and had a laugh about it and moved on.

76    Mr White was an impressive witness. He gave every indication of telling the truth as he recalled it. He retired in 2014 and doubtless his recall of the events was aided by the statement he made soon after they occurred. I accept that he believes that Mr Travers said the words in question.

77    Mr Travers was an equally impressive witness. He appeared to have a clear recollection of the events. He also gave every indication of telling the truth. To the extent that the Commissioner implicitly suggested that because he had an interest in the outcome he may not have told the truth, there was nothing in his evidence or the way in which he gave it which indicated that he was not truthful when he denied saying the words in question. I accept that he believes that he did not say the words in question.

78    The position which is reached is that the only two witnesses to the conversation have contrary views about the relevant event. They were both impressive and truthful witnesses. There are no circumstances from which an inference should be drawn which supports one version rather than the other.

79    In Millar v Minister of Pensions [1947] 2 All ER 372, Lord Denning explained at 374B:

If the evidence is such that the tribunal can say: “We think it more probable than not,” the burden is discharged, but, if the probabilities are equal, it is not.

[Emphasis added.]

80    In Carney v Newton [2006] TASSC 4 the Full Court of the Tasmanian Supreme Court (Underwood CJ, Evans and Blow JJ) at [61] said that if, in a civil case, the evidence was “exactly balanced” the jury must return a verdict for the defendant.

81    It follows that the Commissioner has not established, on the balance of probabilities, that Mr Travers said the words in question to Mr White. Consequently, the s 348 allegation is not made out.

DISPOsiTION

82    The law has always had a fondness for expressions in Latin. In that vein, following Cicero in De Legibus, this case may be accurately described as excitare fluctus in simpulo.

83    The application is dismissed.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:    26 March 2018