FEDERAL COURT OF AUSTRALIA

BGC POS Pty Ltd v Construction, Forestry, Maritime, Mining & Energy Union [2019] FCA 74

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    On the morning of 22 October 2015, Mr Douglas Heath and Mr Peter Joshua arrived at the site office for the construction of a building in Perth. They were officials of the Construction, Forestry, Maritime, Mining and Energy Union (Union). Some of the subcontractors on the site employed workers who were members of the Union or were workers who were eligible to become members. Two days beforehand, Mr Heath and Mr Joshua had given notice of their intention to enter the site for the purposes of holding discussions with those workers. At the site they were met by Mr Carlton, an employee of the construction company BGC POS Pty Ltd. Mr Carlton took them to a meeting room which he said had been allocated for their discussions with workers. Mr Heath and Mr Joshua inspected the room and determined it was unsuitable. They informed Mr Carlton of their position. They said that they had a right to hold discussions in the crib room. They were taken back to the foyer by Mr Carlton and required to wait for 20 minutes before being allowed to use the crib room to hold discussions. During that period Mr Carlton sought advice on what to do from other BGC personnel.

2    Proceedings were brought by the Union in the Federal Circuit Court arising from these events. The primary judge found that BGC POS and Mr Carlton had contravened s 502 of the Fair Work Act 2009 (Cth) (Act) by intentionally hindering or obstructing Mr Heath and Mr Joshua in exercising rights under Part 3-4 of the Act. BGC POS and Mr Carlton now appeal against the decision of the primary judge to make declarations to that effect.

3    For the following reasons, the appeal should be dismissed.

Relevant statutory provisions

4    In Part 3-4 of the Act, s 484 provides that permit holders may enter premises for the purposes of holding discussions with workers of the kind described. Relevantly for present purposes, s 487 requires an entry notice to be given in accordance with the Act before entry by a permit holder in the exercise of the statutory authority conferred by s 484. Section 490(2) provides that a permit holder may hold discussions under s 484 'only during mealtimes or other breaks'. There is no dispute in the appeal that Mr Heath and Mr Joshua were permit holders for the purposes of the Act who had given the requisite notice of entry and were seeking to enter the premises for the requisite statutory purpose of holding discussions.

5    Section 492(1) provides that the permit holder must hold discussions 'in the rooms or areas of the premises agreed with the occupier'. However, s 492(2) and (3) then provide that if the permit holder and occupier 'cannot agree on the room or area' then the permit holder may hold discussions in any room or area in which a relevant worker ordinarily takes meal or other breaks that is provided by the occupier for that purpose. There is no dispute that a 'crib room' provided by BGC POS was such a room or area.

6    Also in Part 3-4, s 502(1) provides: 'A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part'.

Contentions advanced on appeal for BGC POS and Mr Carlton

7    First, it was submitted for the appellants that the primary judge should have found on the evidence that there had not been any attempt by the permit holders to reach an agreement. This was because there was no evidence of a subjective intention that, come what may, Mr Heath and Mr Joshua would never agree to use the designated room.

8    Second, it was submitted that the communications between the parties had not reached a point where it could be concluded, on the proper interpretation of s 492(2), that the parties 'cannot agree on the room or area'. In effect, it was said that it should have been found that Mr Carlton was still considering his position and taking advice for that purpose. Further, it was said that the primary judge found erroneously that it was the conduct of Mr Carlton that meant there could not be agreement.

9    Third, it was submitted, in effect, that the findings of the primary judge did not recognise that Mr Carlton, in the result, agreed to allow Mr Heath and Mr Joshua to use the crib room which was a possibility that remained open during the dealings between Mr Carlton and the permit holders.

10    Fourth, as to the finding of contravention of s 502(1), it was said that the conduct as found was insufficient to constitute hindrance or obstruction, particularly having regard to other times when the permit holders could have been on site that day. Further, the primary judge was wrong to find that conduct that made the exercise of the permit holders rights more difficult or appreciably interfered with those rights amounted to hindrance or obstruction under s 502. The issue was about hindrance or obstruction not interference with rights.

11    Finally, it was said that the primary judge was wrong to find that Mr Carlton had intentionally hindered or obstructed the permit holders because it was not enough that the words and actions of Mr Carlton were intentional. It had to be shown, in addition, that Mr Carlton intended his words and actions to hinder or obstruct and no such finding was or could have been made by the primary judge.

Interpretation of s 492 and s 502

12    I dealt with the principles to be applied in construing the Act in Fair Work Ombudsman v Spotless Services Australia Ltd [2019] FCA 9 at [8]-[22].

Section 492

13    Section 492(1) requires discussions to be held in a room or area agreed with the occupier. Viewed out of context, it might be thought that the phrase 'agreed with the occupier' meant that consent was required from the owner. However, the express object of Part 3-4 is to establish a framework for union officials to enter premises that balances the rights of unions, workers and occupiers of premises: s 480. A right of entry qualified by a power on the part of the occupier to refuse entry by not consenting would not give effect to such a purpose. Further, s 492(2) contemplates a circumstance where the parties have not agreed. So, the statutory context shows it is to be inferred from the terms of s 492(2) (guided by the purpose evident from s 480) that the reference to 'agreed' means mutual assent, not just a permission from the occupier.

14    If the parties 'cannot agree' then the permit holders are permitted to use any room or area of the kind described in s 492(3) (crib room). So, the terms of s 492(2) contemplate an inability of the permit holder and the occupier to reach common ground. It is not enough that the parties do not reach agreement, they have to be in a position where they cannot agree. Therefore, the provision invites an evaluation of the reasons why agreement has not been reached to determine whether there is, in fact, an impasse.

15    There are many reasons why parties may be unable to reach common ground as to whether a particular room or area may be used for discussions with workers. The parties may be unable to agree because there are objective considerations that would justify a reasonable person in the position of one of the parties refusing to agree. They may be unable to agree because one party simply refuses to engage in discussions with a view to reaching agreement. They may be unable to agree because one party seeks to extend the discussions rather than advance them to a conclusion. They may be unable to agree because one party has an unreasonable subjective view about the suitability of the room or some ulterior purpose for refusing to agree. They may be unable to agree because one party simply wishes to invoke the application of s 492(2) and (3) and refuses to agree for that reason.

16    In my view, whether the parties cannot agree is to be evaluated objectively. It would be impractical and frustrate the evident purpose of the provision if the statutory authority to enter the crib room depended upon an inquiry into the state of mind of each party. There would likely be many instances where there was a state of limbo between a failure to agree and entry to the crib room release from which depended upon an inquiry into subjective intentions.

17    Further, the use of the term 'cannot agree' as distinct from a term such as 'unwilling to agree' supports the conclusion that the question whether the parties cannot agree is to be evaluated objectively. As does the absence of any reference to the purposes of the parties in refusing to agree.

18    Further, s 492 is a practical provision governing what is likely to be an everyday occurrence at work sites. It forms part of a group of provisions that should be interpreted 'practically and with an eye to common sense' having regard to the context in which it will be applied so that it can be implemented 'in a clear way on a day-to-day basis at work sites': Ramsay v Menso [2018] FCAFC 55 at [39] (Dowsett and Collier JJ) applying Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; (2017) 251 FCR 470 at [15]. It balances the rights of all concerned: Ramsay v Sunbuild Pty Ltd [2014] FCA 54; (2014) 221 FCR 315 at [87].

19    Given that the provision concerns access to have discussions with workers in a scheduled break where notice has been given in advance, determining whether parties 'cannot agree' on a room does not require a complex or detailed evaluation. The subject matter about which the parties are to agree is not complex. Therefore, the provision does not envisage an extended negotiation or mediation to resolve any difference between them as to the suitability of the room.

20    It follows that as soon as one party has expressed a reason why it will not agree to a room that is objectively justifiable taking account of its interests and there is no other room proposed then the parties cannot agree. It was suggested that where the reason raised may be remedied, such as where the concern is that the room is not clean or does not have suitable furnishings, then unless and until there has been a discussion about what needs to be done and whether the occupier will make changes the point has not been reached where the parties 'cannot agree'. I do not accept that the statute contemplates discussions of this kind. The room or area proposed is to be considered in the state in which it appears at the time that the permit holder seeks access to hold discussions with workers. The question is simply whether agreement can be reached on the room as a place for discussions. It does not extend to a negotiation about how a particular room or area might be changed so as to make it suitable. Notice has been given. When the permit holder arrives she or he is seeking to hold discussions with workers. In those circumstances, the statutory right of entry is not to be barnacled with an extended discussion as to what might be done to improve the suitability of a particular room or area.

21    Equally, if the occupier refuses to propose a room or area or refuses to engage in discussions or seeks to defer consideration as to whether to agree then the parties cannot reach agreement. The unwillingness of the occupier to participate means that the permit holder cannot agree 'with the occupier of the premises'. Otherwise, the provision reduces to one where, in effect, consent from the occupier is required. For reasons I have given, that is not the proper construction of the provision.

22    The position is different if it is the permit holder who refuses to engage in discussions or is shown to be acting for a collateral purpose other than seeking to agree. The terms of s 492(1) show that it is for the permit holder to agree the rooms or areas for the discussions with the occupier. So, it is for the permit holder to genuinely seek to agree with the occupier. Then, only if the parties cannot agree does s 492(3) apply. The permit holder cannot by a unilateral refusal to participate in discussions or a failure to identify any objective reason why a room or area was unsuitable bring into operation s 492(2) or by a desire to use the crib room irrespective of the circumstances refuse to agree and thereby, in effect, create a statutory entitlement to holds discussions in the crib room in any event.

Section 502

23    As I have noted s 502 prohibits a person from intentionally hindering or obstructing a permit holder exercising 'rights in accordance with this Part'. Within Part 3-4, only sections like s 481, s 482 and s 484 may be readily described as conferring rights. They confer rights upon permit holders to enter premises for particular purposes. In the case of s 484, the right may be exercised only for the purpose of holding discussions with workers in their break times: Construction, Forestry, Maritime, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2018] FCAFC 107 at [32]. Other provisions regulate the manner in which those rights may be exercised.

24    In this case, the complaint was that the permit holders had a right to hold discussions with workers in the crib room because the position had been reached where the condition in s 492(2) had been met because the parties could not agree. Therefore, the claim was that the exercise of the right under s 484 had been hindered or obstructed by not allowing entry to the crib room.

25    It was not said that s 502 applied to conduct undertaken for the purposes of s 492 being the provision which governed the rooms or areas where discussions with workers might be held in the exercise of the right conferred by s 484. However, as a right under s 484 can only be exercised 'in accordance with' the requirements of s 492 which itself depends upon the actions of the occupier, it appears that s 502 may apply to the conduct of a person that hinders or obstructs the attempts to agree with the owner the room or area where discussions may be held. It is not necessary to consider that issue because the claim before the primary judge was based upon the conduct of Mr Carlton (acting for BGC POS) in allegedly hindering or obstructing the use of the crib room on the basis that the permit holders were permitted to use that room for discussions once the parties could not agree.

26    The ordinary meanings of the words hinder and obstruct overlap. To hinder is to delay, interrupt or cause difficulty to do something or for something to happen. To obstruct is to block or get in the way of something, but may refer to preventing or interfering with a physical action or the movement of something. The term hinder is usually applied to describe the actions of persons whereas the term obstruct may be applied to persons as well as inanimate objects. A person may hinder or obstruct without specifically intending to achieve that result. The terms are not confined to deliberate actions. So, a person may accidently hinder or obstruct.

27    The addition of the word intentionally makes clear that the provision does not extend to accidental or involuntary conduct. Rather, it confines the provision to conduct that is engaged in deliberately or consciously. Further, in its ordinary meaning it applies only to 'actual, subjective, intent': SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [26]. The distinction between subjective and objective intent is usually only of significance where an element of a statutory provision concerns the result of conduct rather than the conduct itself.

28    The question raised by the submissions in this case is whether a prohibition expressed in terms that a person 'must not intentionally hinder or obstruct' is contravened by deliberate conduct that properly may be characterised, viewed objectively, as hindering or obstructing or whether the person engaging in the conduct must also be shown to have intended that the conduct would have that character or consequence. The significance of the additional requirement is that it would make it necessary for a party alleging a contravention to demonstrate that the conduct was engaged in deliberately and with the intention that it would hinder or obstruct.

29    There is a further distinction not exposed by the two alternatives described above. A person may deliberately engage in conduct that might have the consequence that it hinders or obstructs, but may or may not know that the conduct may have that consequence. In such a case, the person will not know the quality or character of the conduct as a possible hindrance or obstruction. It is not possible to intend to have the consequence that conduct will hinder or obstruct without that knowledge. However, knowledge may be viewed objectively (what any reasonable person in the position of the party would know) or subjectively (what the person was consciously aware of). Sometimes it is said (contentiously in a mens rea context) that a person may be presumed to know the natural and ordinary consequences of their actions. Or it may be said that the knowledge of a reasonable person in the same position would be presumed or inferred. By such means objective knowledge may be viewed as a form of intention to cause the outcome that the party is presumed to know.

30    So, the possibilities are that 'intentionally hinder or obstruct' as used in s 502(1) may mean:

(1)    deliberately engaging in the relevant conduct (as distinct from accidentally or involuntarily);

(2)    deliberately engaging in the conduct in circumstances where a reasonable person would know that the conduct would have the consequence that it would hinder or obstruct; and

(3)    deliberately engaging in the conduct whilst consciously intending that it would hinder or obstruct.

31    For present purposes, nuances that arise where a party is recklessly indifferent as to the actual consequences (or contemplated consequences that appeared likely but had no view about whether to cause them) may be ignored because issues of that kind do not arise in the present case.

32    The important question here is whether intentionally causing the result of hindering or obstructing is what is proscribed or whether it is only intentionally engaging in acts that may be characterised as hindering or obstructing.

33    The word intentionally qualifies the verbs hinder or obstruct. On the face of the provision it requires those actions to have been deliberate in order for the provision to apply. Therefore, it is concerned with intended actions not intended consequences or results.

34    However, some verbs describe actions principally by their consequences. So, to injure is to engage in an act that causes harm or damage. A person may injure another involuntarily, accidently, recklessly, by deliberate conduct or with a specific intent to cause harm. Some verbs describe intended actions in a way that requires deliberateness. So, to deceive is to engender a false belief usually with the consequence that it is for personal gain. It is a word that is usually not employed to describe accidental or involuntary conduct.

35    Other verbs describe actions undertaken with a particular state of mind beyond deliberateness. So, to defraud is to trick, cheat or swindle a person out of their money or property. Leaving to one side Equity's view of fraud as describing conduct contrary to an imposed conscience, as a matter of ordinary language there must be a dishonest intent before actions may be described as fraudulent.

36    Still other verbs describe actions by reference to their purpose. So, to conceal is to keep out of sight or hidden. There are many types of conduct that may amount to concealment. Importantly, it is not the act itself but the purpose served by the conduct that is the focus of the meaning. A person may place a wallet in a drawer. It may have been put there absentmindedly out of habit or for neatness or to protect it from theft or to hide it from the true owner. The purpose to be served by the conduct is not evident from the conduct itself. In order to know whether the act of placing the wallet in the drawer was to conceal the wallet it is necessary to know why the conduct has been engaged in by the person putting it in the drawer. To refer to a person as intentionally concealing something is not to say that they have a particular state of mind motivating the purpose of concealment. However, for someone to conceal they cannot be acting by accident. Both the act and its purpose must be deliberate. So, to describe a person as intentionally concealing is redundant.

37    As to all these distinctions context is important. For example, the term 'injure' may be used in a context that means it is confined to intentional injury and excludes injury caused by accident. As I have noted, fraud as used in Equity may refer to deliberate conduct in a particular state of affairs which, when viewed according to conscience, is considered fraudulent even though there is no dishonesty.

38    For present purposes, the significant point to note is that some verbs have a semantic character that imports a particular state of mind, some verbs import an element of deliberateness as to the act itself or the purpose served by the act and other verbs describe conduct by its consequence irrespective of whether it accidental, deliberate or motivated by dishonesty, malice or some other mental state. This is not a complete survey of the possibilities but it is sufficient to expose the relevant distinctions for present purposes.

39    Neither hinder nor obstruct are terms that import a particular state of mind with which the conduct is performed. Nor do they include as part of the meaning an aspect of purpose. It is not necessary for a person to have the purpose of hindering or obstructing in mind in order for the person's conduct to fall within one of those descriptions. Whether conduct hinders or obstructs depends upon its effect not its purpose. As verbs they have a meaning circumscribed by a particular outcome of the conduct (delay, interrupt, block, get in the way). They also embrace both accidental and deliberate conduct.

40    Therefore, to state that a person may not intentionally hinder or obstruct may be said to be ambiguous because the verb has two aspects, the act itself and the result. The term intentional may apply to one or both.

41    In cases where a statute provides that a person must be shown to have intended a result then it must be shown that 'the person meant to produce that particular result and that that was the person's purpose in doing the act': SZTAL at [27]. However, that is not this case. Section 502(1) does not expressly proscribe conduct by reference to a particular result. Rather, it proscribes intentionally engaging in conduct of the kind encompassed by two verbs which in their ordinary meaning describe actions which may be accidental or deliberate by reference to a result. By using verbs of that kind there is no explicit or express statement of a result. Rather, the significance of the result is brought in as part of the semantic character of the word. The word 'intentionally' focuses upon the two verbs which grammatically describe actions (albeit by the result of the action). It is plainly requiring deliberateness in action. However, anything beyond that is more implicit.

42    The fact that there is no express reference in s 502(1) to a result is significant. In He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 Brennan J dealt with the concepts of general intent and specific intent in a criminal context. The former is a requirement that the proscribed acts be undertaken voluntarily and deliberately (not accidentally). The latter is an intent that something will happen as a result of the deliberate act. Brennan J described the complexities that may arise in relation to the different mental states that may form part of particular offences. His Honour then said (at 570-571) that:

Voluntariness, general intent and specific intent are three categories of mens rea that may be (but are not always) mental elements applicable to the external elements of an offence. Voluntariness and general intent are generally implied in a statute creating an offence as mental elements applicable to the act involved in the offence; specific intent is not implied. When a specific intent is expressed to be an element, it is ordinarily expressed to apply only to results. The definition of circumstances attendant upon but not an integral part of the act involved in the offence may (but does not always) imply another mental element: knowledge or the absence of an honest and reasonable but mistaken belief as to the existence of those circumstances. The distinction between the act and the circumstances which attend its occurrence is frequently of no moment, because for all practical purposes the same mental element - knowledge - is the requisite mental element ordinarily applicable both to the act and the circumstances. But if there be a legislative intention to apply a mental element to the circumstances different from the mental element applicable to the act involved in the offence, it is necessary to decide what circumstances are defined to be an integral part of the act (to which intent and therefore knowledge will ordinarily apply) and what circumstances are defined to be merely attendant (to which no mental element may be intended to apply or to which a mental element less than knowledge may be intended to apply). One of the intractable difficulties in the process of identifying the particular category of mens rea that applies to the respective external elements of an offence is the identification of the prohibited act on the one hand and the circumstances attendant on the doing of that act on the other.

43    So, the usual approach is that specific intent is not implied. In my view, a similar approach should be applied in the circumstances of this case where civil penalties may apply. In the absence of an express statement that the word intention is intended to apply to the 'result' aspect of the meaning of 'hinder or obstruct', it should not be concluded that the intention was that the reference to 'intentionally hinder or obstruct' was to require more than a general intention, that is deliberateness. Fundamentally, the proscription is upon the actions of hindering or obstructing. It is the actions that are required to be deliberate.

44    Otherwise, just because a person did not consciously intend their refusal to allow a person to use the crib room when they were so entitled to hinder or obstruct their rights to do so, the prohibitions that support the rights conferred under Part 3-4 would not apply. As I have noted, the express object of Part 3-4 is to establish a framework for union officials to enter premises that balances the rights of unions to represent their members, workers to receive information and representation at work and occupiers to go about their business without undue inconvenience. I find some support in the express purpose for the above approach. The rights to enter premises conferred by provisions such as s 484 would be compromised if there was no consequence unless it could be shown not only that any refusal was a deliberate act, but also that the occupier consciously intended to get in the way of the exercise of those rights.

45    The above position is supported by the decided cases.

46    In Darlaston v Parker [2010] FCA 771; (2010) 189 FCR 1 the meaning of the terms 'hinder or obstruct' when used in a similar legislative context to s 502 were considered. At [52] Flick  J held that the reference to 'intentionally hinder or obstruct':

is a reference to any act or conduct that actually makes it more difficult for the person who is "hindered or obstructed" to discharge his functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an "appreciable" obstruction or interference. A trivial act, or even an act which could not reasonably be regarded as an obstruction or interference, would not fall within [intentionally hinder or obstruct].

47    It is a passage that has been applied in the context of s 500 of the Act where the same language is used as is found in s 502: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 at [45] and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 197 at [260].

48    For those reasons, I do not accept the submission of the appellants that s 502(1) stipulates a specific intent to produce the result that the conduct will hinder or obstruct.

Relevant events

49    When Mr Heath and Mr Joshua arrived at the construction site, Mr Carlton met them and took them to a meeting room. Mr Heath and Mr Joshua inspected the room and stated their concerns. Mr Carlton did not engage with them about the reasons for their concerns. He escorted them from the room back to the foyer. On the way back, Mr Heath and Mr Joshua voiced their desire to use the crib room. Mr Carlton wanted to obtain advice. Mr Heath and Mr Joshua were required to wait for approximately 20 minutes before being allowed to go to the crib room. There was no delay between Mr Carlton obtaining advice and the permit holders being allowed to use the crib room for discussions with workers.

50    For BGC POS a submission was advanced to the effect that throughout the relevant period Mr Carlton was actively engaged in seeking advice about what to do. It was said that the evidence of the permit holders concerning the actions of Mr Carlton revealed that it had five features, namely:

(1)    Mr Carlton did not do or say anything to insist that that the permit holders must use the designated meeting room to the exclusion of any other room or area;

(2)    Mr Carlton did not do or say anything to accept the assertion of the permit holders that they would not use the designated meeting room;

(3)    Mr Carlton explicitly did not accept the assertion of the permit holders that they had a then existing right to use the crib room;

(4)    on the other hand, Mr Carlton never denied that they may have such a right and that they might be able to use the crib room; and

(5)    Mr Carlton did not say anything to foreclose the possibility that they could use the crib room.

51    Further, once Mr Carlton had obtained advice he agreed to the demand of the permit holders to use the crib room. On that basis it was said that during the period of the relevant events (a) one side asserted that they did not agree to use the meeting room but the other did not accept that as the final position; and (b) the possibility remained open that the permit holders might use the crib room.

52    The fact that the above submissions were advanced by reference to the evidence of Mr Heath and Mr Joshua reflects the unchallenged adverse findings made by the primary judge resulting in the conclusion that Mr Carlton's evidence should be afforded 'nominal weight'.

53    It can be seen that the case advanced for Mr Carlton and BGC POS did not involve challenging the acceptance of the account given by the permit holders, but rather challenged how far that evidence may be taken in relation to the issue whether the point had been reached on the relevant day where it could be said that the parties 'cannot agree'. It depended upon an analysis of what Mr Carlton did not do rather than what the parties did do.

54    In that regard, the unchallenged findings of the primary judge were to the following effect:

(1)    the meeting room proposed by Mr Carlton was unacceptable and the permit holders informed him of that fact (at [107]);

(2)    rather than engage in any sort of conversation to resolve the situation, Mr Carlton simply escorted the permit holders away (at [107]);

(3)    the permit holders did genuinely attempt to reach an agreement with Mr Carlton about what room to use (at [106], [109]);

(4)    Mr Carlton refused to engage and was completely uncooperative (at [106]);

(5)    rather that discuss the issue, Mr Carlton insisted he needed to get advice and led the permit holders back to the foyer (at [110]); and

(6)    the permit holders were required to wait for approximately 20 minutes which was a not insignificant amount of time given the need to meet with workers who had designated meal breaks (at [110]).

55    In the above circumstances, I now deal with the five points raised for the appellants.

Subjective intention to agree

56    It was not necessary for evidence to be led as to the subjective intentions of Mr Heath and Mr Joshua to the effect that they were not willing to agree to use the meeting room irrespective of any response. The relevant question was whether the parties could not agree. For reasons I have given, whether the parties 'cannot agree' is to be evaluated objectively. The subject matter on which agreement had to be reached was not complex. The meeting room was the only room proposed by Mr Carlton. When Mr Heath and Mr Joshua raised what was found to be an objectively reasonable concern and stated clearly that they would not agree then objectively there was no prospect of agreement.

57    Once it was clear that the meeting room was unsuitable, Mr Carlton had to propose a different room or allow the permit holders to use the crib room. Mr Carlton did not propose an area or room other than the crib room for the permit holders to have discussions. There was no suggestion that the advice he was seeking was about an alternative room. Instead, Mr Carlton simply did not engage with Mr Heath and Mr Joshua about agreeing a room or area for discussions. At that point the parties could not agree. They could not agree both because there was an objectively reasonable basis that the permit holders had communicated as to why they would not agree to the proposed meeting room as the place for discussions and because Mr Carlton did not engage in any discussions with a view to reaching an agreement. Mr Carlton was not able to simply put the matter on hold and seek advice. To do so meant that the requirement that the parties 'cannot agree' was satisfied. If the occupier fails to engage with any permit holders as to the suitability of a room proposed by the owner then the parties cannot agree. In such a case, the conduct of the occupier prevents any agreement.

Mr Carlton taking time to consider his response

58    Section 492 regulates the manner in which a permit holder may exercise the rights under s 484. It is the means by which the rooms or areas in which discussions may be held with workers by persons allowed to enter premises for that purpose are identified. The statutory regime provides for occupiers to be forewarned. Entry can only occur after at least two days prior notice. When the permit holders arrive it is not for the occupier to forestall the exercise of the statutory rights by taking time to consider or take advice as to what to do. The statutory right is not qualified by such matters. Especially so in this case where Mr Carlton was present and was the person who was responsible for proposing the meeting room for the discussions. Once Mr Carlton did not respond to the concerns of the permit holders the parties were unable to agree.

59    Assuming in favour of the appellants that Mr Carlton was willing to engage in discussions once he had obtained advice (a finding that would be contrary to the decision of the primary judge made after rejecting the credibility of Mr Carlton's evidence), the problem is that he was plainly not willing to do so when the statute required the occupier, by Mr Carlton, to consider whether to. It was not for the occupier to put off to a time of its choosing when there might be an engagement for the purposes of agreeing the rooms or areas.

60    In all the circumstances, there was no error by the primary judge in finding that the parties could not agree.

Alleged agreement to use the crib room

61    The crib room is the default if the parties are unable to agree. There was no evidence that Mr Carlton proposed the crib room by way of agreement. On the evidence the only room he proposed to Mr Heath and Mr Joshua was the meeting room. The permit holders told Mr Carlton that the meeting room was unsuitable and stated their position that they wanted to use the crib room.

62    In the context of the statute and the course of events, for Mr Carlton to eventually concede that the crib room could be used for discussions was to acknowledge that the default applied. I accept the submission for the respondent that by then Mr Carlton had no choice. It was not a matter for agreement. Mr Heath and Mr Joshua were entitled to access the crib room without the agreement of the occupier.

63    In any event, any belated agreement did not change the fact that the position whereby the parties could not agree had pertained for approximately 20 minutes by that time. There is no merit in this contention.

Hindrance or obstruction in fact

64    As to whether the conduct of Mr Carlton (and, by him, that of BGC POS) had actually hindered or obstructed the permit holders in exercising their rights under s 492(2), on the findings of the primary judge the permit holders were prevented from holding discussions in the crib room for approximately 20 minutes during which time relevant workers were on their meal break.

65    The hindrance or obstruction must be 'appreciable' and a trivial act does not meet the statutory description: Darlaston at [52].

66    It was said for the appellants that 20 minutes was not sufficiently appreciable to constitute a hindrance or obstruction. It was said that all that occurred was a short delay and the rights of the permit holders were then able to be exercised. Further, they could have been exercised during other breaks during the course of the day.

67    One may wonder why the events in this case were considered significant enough to warrant the commencement of court proceedings. However, that is not the test. The terms of s 484 have been enacted to govern the day-to day dealings between occupiers and union officials seeking to have discussions with members and potential members at their place of work during their work breaks. The provision is expected to apply in a practical way and to be complied with. Sometimes the reasons for seeking access will be more significant than others. However, provided the purpose is to hold discussions with workers (of the kind specified) on their breaks and the other provisions regulating access are satisfied then the statute confers a right of access.

68    It may be accepted that the findings of the primary judge as to whether the conduct in this case was 'sufficiently appreciable' were evaluative in character and it is the evaluative judgment by reference to the facts as found that must be demonstrated to be in error: Lahoud v Lahoud [2012] NSWCA 401 at [56].

69    It was said that there was no special significance that attached to the day when the permit holders sought to hold discussions at the site. Also, it was said that they could have held discussions during the lunch break later in the day. Further, it was said that the permit holders did have access to the crib room during part of the tea break. However, there was evidence that different trades took their tea breaks at different times and some of the workers with whom the permit holders wished to have discussions had completed their break.

70    The evidence showed that the conduct of Mr Carlton delayed the permit holders. There were consequences from the delay. They were relatively minor. They could be redressed fairly readily by the permit holders going through the process again or perhaps returning later in the day. However, the consequences were not trivial. They were appreciable. It is not a case where the permit holders were able to proceed to hold their planned discussions despite the delay. The result was that the permit holders would have to return to the site in order to have discussions with all those they planned to speak to if they wished to complete those discussions. Having regard to the nature of the right, the hindrance and delay was appreciable both in its duration and its consequence. The matters raised may be relevant and persuasive when it comes to determining relief (a matter not yet addressed by the primary judge), but they do not mean that there has been no contravention.

Intention to hinder or obstruct

71    For reason I have given, the contention that it is necessary to demonstrate that both the actions and the result were intentional before there is a contravention of s 502(1) should not be upheld.

Conclusion

72    It follows that no error has been demonstrated in the reasons or the result of the decision by the primary judge. The appeal should be dismissed.

Associate:

Dated:    8 February 2019