FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) [2019] FCA 1052

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00 pm on 24 July 2019 the parties file draft orders, if possible by consent, giving effect to the reasons for judgment in Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) [2019] FCA 1052 delivered 9 July 2019.

2.    The matter be listed for case management on 31 July 2019 at 9.30 am.

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

COLLIER J:

1    This is an amended originating application brought by the Australian Building and Construction Commissioner (ABCC) against the Construction, Forestry, Maritime, Mining and Energy Union (Union) and five officials of the Union, being Messrs Jade Ingham, Michael Myles, Andrew Sutherland, Chad Bragdon and Kevin Griffin. In its application the ABCC seeks extensive declaratory relief for alleged contraventions of ss 417(1) and 500 of the Fair Work Act 2009 (Cth) (FW Act) in relation to events at the 180 Brisbane Construction Project (the Project Site) involving employees of Watpac Construction Pty Ltd (Watpac) and Talbrace Services Pty Ltd (Talbrace). The ABCC also seeks the imposition of pecuniary penalties against all respondents under s 545 of the FW Act, and an order that such penalties be paid to the Consolidated Revenue Fund of the Commonwealth. The respondents deny liability for all alleged contraventions.

2    I note that the matter was held in abeyance awaiting the outcome of judgments involving the question of the ability of a body corporate such as the Union to be liable for a contravention of s 500 of the FW Act. The Union accepts, however, that following the delivery of decisions in Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797; (2017) 252 FCR 393 and Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088, if the ABCC can make out the alleged contraventions of s 500 of the FW Act against the individual respondents and the elements of s 793 of the FW Act, the Union will be liable pursuant to s 550 of the FW Act as a person involved in the contraventions of the individual respondents.

3    The parties filed a Statement of Agreed Facts in the proceedings. It is helpful to have regard to this as well as evidence before the Court in setting out the background to these proceedings.

Background

4    At all material times work on the Project Site involved the construction of a 34 storey office tower, at an estimated cost of $200 million. Construction commenced in or around May 2013, and was in progress in June and July 2014.

5    Watpac was the principal contractor at the Project Site, and for the purposes of the FW Act was the occupier of the Project Site. At all material times Watpac was in management and control of the Project Site.

6    Watpac employed workers (Watpac Employees) to perform construction work on the Project Site, including in the roles of crane operators, hoist drivers, traffic controllers and general labourers.

7    Watpac also engaged numerous subcontractors to work on the Project Site including ECB Scaffolding Pty Ltd, Oneform, Marveldale Pty Ltd, Specialised Concrete Plumbing, Talbrace and Tensioned Concrete Pty Ltd (Project Subcontractors). The Project Subcontractors and their employees performed work in structural trades on the Project Site, including formwork, blocklaying, steelfixing, concreting and concrete pumping.

8    A Project Safety Management Plan had been promulgated by Watpac. The Project Subcontractors were contractually bound to comply with that document.

9    Each of the Project Subcontractors had an approved enterprise agreement (EBA) within the meaning of ss 12 and 417(1)(a) of the FW Act with the Union. Each agreement was operative at all material times, and contained the following terms:

8.1    … Authorised Representatives of Employee Organisations (AREOs) under the Workplace Health and Safety Act are not required to provide any information or particulars of any suspected contravention of safety law prior to conducting inspections or discussions on site.

…

33.4    A standing invitation exists for any representative of the Union covered by this agreement to enter any place where company employees or representatives are for purposes including, but not limited to, dispute resolution or consultation meetings but not for purposes for which a Right of Entry exists under Part 3-4 of the Fair Work Act.

…

33.9    Employees are entitled to have paid time off to attend union meetings of up to 2 hours (or more by agreement) or participate in union activities.

10    At material times the individual respondents were employees and officers of the Union, and held the following positions with the Union:

(a)    Mr Ingham: Assistant Divisional Branch Secretary

(b)    Mr Myles: Organiser

(c)    Mr Sutherland: Crane Co-ordinator

(d)    Mr Bragdon: Organiser

(e)    Mr Griffin: Organiser.

11    Each of the individual respondents held entry permits under the FW Act and the Work Health and Safety Act 2011 (Qld) (WHS Act).

12    The Union at all material times was entitled to represent the industrial interests of (inter alia) Watpac Employees and employees of Project Subcontractors.

13    The workers on the Project Site had lunch room sheds (Sheds) at the Project Site on basement level 3 of the building under construction.

14    In or around June and July 2014 work was being undertaken in respect of completion of works on level 6 of the building under construction.

15    Watpac sought to limit the conditions on which visitors could enter the Project Site, including requirements that they:

    report to the site office located off Ann Street;

    sign a visitor’s register;

    be inducted for the Project Site, or otherwise be escorted around by a person who had been inducted; and

    wear appropriate personal protective equipment.

16    On 19 June 2014 Mr Drew Brockhurst, the Watpac State Manager Construction (Qld and NT), wrote to the Queensland Secretary of the Union to the effect that Watpac was updating its right of entry process for entry on to Watpac-controlled sites. In particular Mr Brockhurst stated that:

    Due to changes in the WHS Act, Watpac was updating its right of entry process;

    All entry notices for Watpac construction projects should be sent by the Union via email to Watpac’s Queensland Head Office;

    In order to enter any Watpac construction site, Watpac would require the Union and its representatives to issue a valid notice of entry and hold a valid and correct entry permit (including under the FW Act and the WHS Act);

    Access to Watpac construction sites would be strictly in accordance with all statutory obligations, including the relevant entry notice and Watpac’s site safety protocols.

17    Watpac posted relevant signage at the gates, entry points and in the Project Site office in respect of the protocols and requesting visitors to sign the Visitor’s Book.

18    In summary, the following events occurred on the material dates.

19    On 26 June 2014:

    A 20-minute morning tea break for workers was scheduled to occur between 9.00 am and 10.30 am

    Prior to 9.50 am Mr Ingham and Mr Myles entered the Project Site and went to basement level 3.

    Neither Mr Ingham nor Mr Myles presented Watpac with notices of proposed entry in accordance with the timeframe stipulated by ss 119 or 122 of the WHS Act.

    Mr Ingham and Mr Myles did not attend the Site Office, or sign the Visitor’s Register prior to entering the Project Site.

    Mr Bradley Ross, the Project Manager for Watpac for the Project, approached Mr Myles and Mr Ingham. Mr Myles said to Mr Ross:

We are here to raise money for a fellow member who was injured in Bali.

    Mr Ross then had a discussion with Mr Ingham, in which Mr Ingham said no right of entry notice had been issued.

    Mr Ingham entered the lunchroom at the Project Site where a large number of workers employed by the Project Subcontractors were present for morning tea.

    At around 10.35 am approximately 110 employees left the Project Site and did not return to their normal duties that day. Those employees included Watpac Employees and workers employed by Talbrace.

20    On 27 June 2014:

    At approximately 6.10 am Mr Myles went into the Project Site Office and had a discussion with Mr Ross.

    Mr Myles then went on to the Project Site and spoke with workers employed by Project Subcontractors including employees of Talbrace.

    No notice was given by Mr Myles to Watpac of the proposed entry on to the Project Site, and Mr Myles did not sign the Visitor’s Register prior to entering the Project Site.

    At approximately 6.45 am Mr Ross had a conversation with either Mr David Geelan or Mr Brian Baker (both of whom were Watpac Employees and representatives of the Union). Mr Ross was informed that the Safety Committee had gathered a requested a safety walk through the floors.

    The workers remained in the Sheds and did not commence work.

    Messrs Myles, Baker, Geelan and Ross, and the Safety Committee, then proceeded to level 5 of the Project Site. One of Messrs Myles, Baker or Geelan stated that there was an issue of stair access to Fire Stair Two between level 5 and level 6. Mr Myles stated that in an emergency the stairs were not suitable to remove an injured worker via a stretcher, that it was a union requirement to have two sets of stretcher stairs at all times servicing all floors, and accordingly no works were to be performed on levels 5 and 6 until the access was rectified. Mr Ross stated that the Site had four points of emergency egress from the working decks.

    Messrs Myles, Baker, Geelan, Ross and the Safety Committee then proceeded to level 3 of the Project Site. Level 3 was declared safe for workers to return.

    Mr Myles said that he was taking the Safety Committee back to the lunch room where the workers of the Project Subcontractors, including Talbrace and Tensioned Concrete, were located, to report back on the findings of the Safety Committee.

    During this time the services trades continued their usual duties on the Project Site.

    Mr Myles stated that no productive work would continue from level 4 of the Project Site upwards.

    At approximately 7.45 am some employees of Project Subcontractors returned to work on level 3 of the Project Site, however crane drivers employed by Watpac and Talbrace employees did not.

    A rectification crew comprised of three Oneform workers performed work in respect of Fire Stair 2 as well as the alignment of several props between levels 5 and 6.

    At around 9.00 am two inspectors from WHSQ, Mr Mark Norris and Mr John Barber, arrived at the Project Site and, after inspecting levels 5 and 6, told Mr Ross that the access provided by Watpac to Fire Stair 2 was suitable.

    At around 10.45 am a drill was undertaken of carrying a stretcher down Fire Stair 2. Mr Myles participated in this drill.

    At around 11.30 am several Safety Committee members undertook a drill of carrying a stretcher from level 6 to level 5. Messrs Myles, Geelan and Baker participated in that drill.

    At around 12.30 pm WHSQ inspectors Mr Chris Phelan, Ms Kym Tollenaere, Mr Barber and Ms Deborah Dargan arrived at the Project Site and met with the Safety Committee on level 5. Mr Myles spoke to Ms Tollenaere and Ms Dargan, and said to the Safety Committee words to the effect “return to the sheds”.

    Mr Phelan, Mr Barber, Ms Tollenaere and Ms Dargan inspected level 5 again, and confirmed that access to the floor was adequate.

    Mr Ross told Messrs Geelan and Baker that the inspectors would talk to the Safety Committee about their findings. Mr Geelan or Mr Baker told Mr Ross that the Safety Committee would not meet until the WHSQ inspectors had left the site. Mr Phelan, Mr Barber, Ms Tollenaere and Ms Dargan left the Project Site at approximately 2.00 pm.

    At all times workers (other than those who had returned to work at 7.45 am) remained in the Sheds on the Project Site.

    A meeting took place involving Messrs Myles, Ross, Daniel Butler (Project Safety Coordinator, Watpac), Brian Lewis (Watpac Safety Manager) and John Boye (Site Safety Advisor) or around 2.30 pm, involving (inter alia) a discussion concerning the possibility of rebuilding stretcher stairs

    Workers of the Project Subcontractors then left the Project Site.

    The respondents admit that the meetings Mr Myles held with the workers and/or the stoppage on 27 June 2014 hindered or obstructed Watpac from carrying out its usual work on the Project Site on 27 June 2014.

21    On 1 July 2014:

    At approximately 6.00 am Mr Griffin arrived at the Project Site office, wearing Union-branded clothing and carrying Union-branded materials.

    Mr Griffin introduced himself to Mr Ross as an organiser with the Union. He stated that he intended to meet with Union members to discuss safety issues, and went into the lunch room where workers were gathered.

    It is not in dispute that Mr Griffin did not provide Watpac with notice of his proposed entry in the form and timeframe stipulated by ss 119 or 122 of the WHS Act, or that Mr Griffin did not sign the Project Site visitor register.

    At approximately 6.45 am the Safety Committee including Messrs Baker and Geelan, and Messrs Ross and Griffin proceeded to the upper floors of the building under construction.

    Mr Griffin engaged in discussions with the members of the Safety Committee, asking them if they considered that access to the floors was suitable.

    Mr Ross provided the Safety Committee and Mr Griffin with a report following the 27 June 2014 visit of the WHSQ inspectors, which stated that the access provided by Watpac was adequate and that there were other means of emergency egress on site.

    The Safety Committee and Messrs Ross and Griffin proceeded to level 5 of the building under construction.

    Mr Griffin asked the Safety Committee when their meetings would be held, and said that he would attend those meetings.

    Mr Griffin and the Safety Committee then attended the lunch room and addressed workers present (including workers employed by Talbrace and Tensioned Concerete)

    At around 8.30 am workers of the Project Subcontractors commenced work on all floors on the Project Site.

    Mr Griffin then left the Project Site.

22    On 4 July 2014:

    At around 6.30 am Mr Griffin arrived at the Project Site Office and spoke with Mr Ross. Mr Griffin asked Mr Ross inter alia to attend a meeting of workers to hear worker concerns and provide undertakings from Watpac regarding those concerns.

    Mr Griffin did not provide an entry notice in respect of this attendance, nor did he attend the Project Site office or sign the visitor’s register at the Project Site.

    At around 6.35 am Mr Ross attended a meeting of Project Subcontractor employees. At that meeting Mr Griffin said words to the effect that workers should raise issues with Mr Ross. The workers raised issues including that they were working “over the top” or in close proximity to each other; in relation to a water issue on a lower basement level; in relation to a site barbeque; and in relation to hours of work. Mr Ross responded to those workers in attendance, and then left the meeting while Mr Griffin remained.

    At or around 7.40 am Mr Griffin left the Project Site and Project Subcontractor workers commenced work on the Project Site.

23    On 7 July 2014:

    At approximately 6.10 am Messrs Sutherland, Geelan and Henry arrived at the Project Site office.

    Mr Sutherland told Mr Ross that he intended to hold a meeting with Union members

    Mr Ross said that Mr Sutherland had not provided a notice of entry and therefore could not enter the Project Site.

    Mr Sutherland shrugged his shoulders and left the Project Site office. He remained on the Project Site.

    Mr Geelan and Mr Henry told Mr Ross words to the effect that Oneform employees would be involved in climbing the jump form, during that time the other workers would remain in the “smoko room”, and that after they had finished the Oneform employees would rejoin the other workers.

    Workers on the Project Site (except for Oneform) remained in the Sheds.

    At around 8.30 am the Oneform workers returned to the Sheds.

    A meeting with the workers was held by Messrs Sutherland, Geelan and Henry. Messrs Sutherland, Geelan and Henry returned to the Project Site office shortly afterwards and told Mr Ross and Mr Peter Luppi (the Watpac Project Director) that the workers did not have confidence in Mr Keiran Nailon (a Watpac deck foreman) and wanted him removed from the Project Site. Mr Ross protested this request and sought a resolution. Messrs Sutherland, Geelan and Henry returned to meet with the workers.

    At approximately 10.00 am Messrs Sutherland, Geelan and Henry returned to the Project Site Office and met again with Messrs Ross and Luppi. Mr Sutherland told Mr Ross that the workers had gone home for the day. Mr Sutherland said words to the effect “I tried to hold them but they wanted to go home… I did my best.”

    Shortly thereafter 110 workers engaged in the structural trades left the Project Site and did not return to their normal duties that day.

    The respondents admit that the workers on 7 July 2014 engaged in industrial action within the meaning in s 417(1) of the FW Act.

24    On 17 July 2014:

    At approximately 6.35 am Mr Bragdon telephoned Mr Ross and told Mr Ross that he was on the Project Site. Mr Bragdon asked where Mr Ross was.

    Shortly thereafter Mr Bragdon met Mr Ross at the Project Site office and said that workers had reported concerns about a safety screen being loose and Watpac’s plans to pour a slab, climb the jump form and climb the screens all at one time. Mr Ross had a brief discussion with Mr Bragdon about these issues including the sequencing of works that were to occur at the Project Site on that day.

    Mr Bragdon told Mr Ross that he intended to hold a meeting with the workers to find out more about the issues. Mr Ross said that he had not received a right of entry notice from Mr Bragdon.

    Mr Bragdon did not provide a right of entry notice, or notice of proposed entry pursuant to the WHS Act. He did not sign the visitor’s register prior to entering the Project Site.

    Mr Bragdon left the Project Site office and held a meeting with Project Subcontractor workers.

    At around 7.40 am Messrs Bragdon and Geelan and the site Safety Committee came to Mr Ross’ office, and invited Mr Ross to meet with the Safety Committee to discuss issues raised at the meeting. Messrs Ross, Luppi and Butler then met with Messrs Bragdon and Geelan and the site Safety Committee.

    At the meeting Mr Bragdon said, in summary, that the following issues had been raised by the workers, namely that they wanted better communication and co-ordination with Watpac (in particular in relation to their belief that Watpac was pouring a slab, climbing the jump form and climbing the screens simultaneously), and in respect of a perimeter screen extension which a worker had leaned on and which had flexed approximately 200 millimetres.

    During the meeting Mr Brian Lewis (a Watpac Safety Manager) and Messrs Phelan and Baptista (WHSQ Inspectors) arrived in the meeting room. Mr Bragdon asked Mr Baptista if he was an “investigator”, and Mr Baptista replied affirmatively.

    Mr Bragdon told Mr Ross that the workers would not return to work until after Mr Baptista left the Project Site.

    Messrs Phelan and Baptista left the Project Site, and at approximately 11.00 am the workers returned to work.

Claims of the ABCC

25    In relation to these events the ABCC claims in its amended statement of claim in summary:

26    In relation to the events of 26 June 2014:

    The employees who stopped work engaged in industrial action within the meaning of s 417(1) of the FW Act. It can be inferred that Mr Ingham organised the industrial action within the meaning of s 417(1), or alternatively was knowingly concerned in, encouraged, aided, abetted, induced, counselled or procured that action within the meaning of s 550 of the FW Act.

    Mr Ingham contravened s 500 of the FW Act in that he was a permit holder for the purposes of s 512 of the FW Act, and (inter alia) entered the Project Site, was exercising or seeking to exercise rights in accordance with Pt 3-4 of the FW Act, intentionally hindered or obstructed Watpac and the Project Subcontractors from carrying out their usual work on the Project by conducting a meeting and then causing workers to leave the Project Site.

    Mr Ingham entered on to the Project Site without giving a notice required by s 119 of the WHS Act and the WHS Regulation, or alternatively failed to give notice in accordance with s 122 of the WHS Act and the WHS Regulation; failed to follow Watpac’s site safety protocols and remained on the Project Site notwithstanding Mr Ross’ statement that he should not be there.

    The Union was, by operation of s 793 of the FW Act and/or at common law, liable for Mr Ingham’s contraventions. It followed that the Union had contravened ss 417(1) and 500 of the FW Act.

27    In relation to the events of 27 June 2014:

    The employees who stopped work engaged in industrial action within the meaning of s 417(1) of the FW Act. It can be inferred that Mr Myles organised the industrial action within the meaning of s 417(1), or alternatively was knowingly concerned in, encouraged, aided, abetted, induced, counselled or procured that action within the meaning of s 550 of the FW Act.

    Mr Myles contravened s 500 of the FW Act in that he was a permit holder for the purposes of s 512 of the FW Act, and (inter alia) entered the Project Site, was exercising or seeking to exercise rights in accordance with Pt 3-4 of the FW Act, intentionally hindered or obstructed Watpac and the Project Subcontractors from carrying out their usual work on the Project by conducting a meeting and then causing workers to leave the Project Site.

    Mr Myles entered on to the Project Site without giving a notice required by s 119 of the WHS Act and the WHS Regulation, or alternatively failed to give notice in accordance with s 122 of the WHS Act and the WHS Regulation; failed to follow Watpac’s site safety protocols; remained on the Project Site notwithstanding Mr Ross’ statement that he should not be there; used offensive language to Mr Ross and the WHSQ inspectors; and directed the Safety Committee to stop work due to the presence on the site of the WHSQ inspectors.

    The Union was, by operation of s 793 of the FW Act and/or at common law, liable for Mr Myles’ contraventions. It followed that the Union had contravened ss 417(1) and 500 of the FW Act.

28    In relation to the events of 1 July 2014:

    Mr Griffin contravened s 500 of the FW Act in that he was a permit holder for the purposes of s 512 of the FW Act, entered the Project Site without giving a notice required by s 119 of the WHS Act and the WHS Regulation for a purpose of enquiring into a suspected contravention of the WHS Act relating to or affecting a relevant worker, or alternatively for a purpose of consulting on work, health and safety matters with, and providing advice on those matters to, one or more relevant workers; was exercising or seeking to exercise his rights in accordance with Pt 3-4 of the FW Act; intentionally hindered or obstructed Watpac and the Project Subcontractors from carrying out their usual work on 1 July 2014 in that he conducted meetings with the workers and the Safety Committee which caused the workers to not perform work on the Project Site, and caused approximately 110 workers to not undertake their duties.

    The Union was, by operation of s 793 of the FW Act and/or at common law, liable for Mr Griffin’s contraventions. It followed that the Union had contravened ss 417(1) and 500 of the FW Act.

29    In relation to the events of 4 July 2014:

    Mr Griffin contravened s 500 of the FW Act in that he was a permit holder for the purposes of s 512 of the FW Act and, notwithstanding his failure to give a notice in accordance with s 119 of the WHS Act and the WHS Regulation, entered the Project Site for a purpose of enquiring into a suspected contravention of the WHS Act that related to or affected a relevant worker; was exercising or seeking to exercise his rights in accordance with Pt 3-4 of the FW Act, and intentionally hindered or obstructed Watpac and the Project Subcontractors from carrying out their usual work on 4 July 2014 in that he conducted meetings with the workers and the Safety Committee which caused the workers to not perform work on the Project Site, and caused approximately 110 workers to not undertake their duties.

    The Union was, by operation of s 793 of the FW Act and/or at common law, liable for Mr Griffin’s contraventions. It followed that the Union had contravened ss 417(1) and 500 of the FW Act.

30    In relation to the events of 7 July 2014:

    The employees who stopped work engaged in industrial action within the meaning of s 417(1) of the FW Act. It can be inferred that Mr Sutherland organised the industrial action within the meaning of s 417(1), or alternatively was knowingly concerned in, encouraged, aided, abetted, induced, counselled or procured that action within the meaning of s 550 of the FW Act.

    Mr Sutherland contravened s 500 of the FW Act in that he was a permit holder for the purposes of s 512 of the FW Act, and (inter alia) entered the Project Site for a purpose of holding discussions with employees whose industrial interests the Union was entitled to represent working on the Project; was exercising rights in accordance with Pt 3-4 of the FW Act, intentionally hindered or obstructed Watpac and the Project Subcontractors from carrying out their usual work on the Project by conducting meetings and then causing workers to leave the Project Site.

    Mr Sutherland entered on to the Project Site without giving a notice required by s 487 of the FW Act; failed to follow Watpac’s site safety protocols; and entered and remained on the Project Site notwithstanding Mr Ross’ statement that he should not be enter.

    The Union was, by operation of s 793 of the FW Act and/or at common law, liable for Mr Sutherland’s contraventions. It followed that the Union had contravened ss 417(1) and 500 of the FW Act.

31    In relation to the events of 17 July 2014:

    The employees who stopped work engaged in industrial action within the meaning of s 417(1) of the FW Act. It can be inferred that Mr Bragdon organised the industrial action within the meaning of s 417(1), or alternatively was knowingly concerned in, encouraged, aided, abetted, induced, counselled or procured that action within the meaning of s 550 of the FW Act.

    Mr Bragdon contravened s 500 of the FW Act in that he was a permit holder for the purposes of s 512 of the FW Act and, notwithstanding his failure to give a notice in accordance with s 119 of the WHS Act and the WHS Regulation, entered the Project Site for a purpose of enquiring into a suspected contravention of the WHS Act that related to or affected a relevant worker; was exercising or seeking to exercise his rights in accordance with Pt 3-4 of the FW Act, and intentionally hindered or obstructed Watpac and the Project Subcontractors from carrying out their usual work on 17 July 2014 in that he conducted meetings with the workers and the Safety Committee which caused the workers to not perform work on the Project Site, and caused approximately 110 workers to not undertake their duties.

    The Union was, by operation of s 793 of the FW Act and/or at common law, liable for Mr Bragdon’s contraventions. It followed that the Union had contravened ss 417(1) and 500 of the FW Act.

Defence

32    It appears to be common ground that, on the dates pleaded by the ABCC:

    workers engaged by Watpac and one or more subcontractors ceased or did not commence work during normal working hours (including participating in meetings);

    one or more of the individual respondents entered the Project Site and spoke to representatives of Watpac and workers engaged by the subcontractors; and

    none of the entries by the individual respondents complied with the right of entry requirements in the FW Act or the WHS Act.

33    However the respondents deny key aspects of the ABCC’s claims. In particular, in their Defence the respondents claim that:

    Watpac had adopted an open door policy with respect to entry by employees or officials of the Union, and did not require those persons to comply with entry requirements and/or provide an entry notice in accordance with the FW Act or the WHS Act (Defence para 21(a))

    Clause 33.4 of each relevant EBA provided an independent and lawful right for employees and officials of the Union to enter the Project Site which was not subject to Watpac’s direction and/or control (Defence para 21(b))

    While the Union received Mr Brockhurst’s correspondence, it did not advise officials or employees of the Union because Mr Ingham and Mr Ravbar thought it was erroneous because it was inconsistent with Watpac’s open door policy and cl 33.4 of the relevant EBAs (Defence para 22)

    Insofar as concerned Mr Ingham and Mr Myles and the events of 26 June 2014:

(a)    Mr Ingham and Mr Myles entered the Project Site for the purpose of soliciting charitable donations from members who worked at the Project Site, for a member of the Union who had been seriously injured (Defence para 28).

(b)    They were not entering the Project Site in accordance with the WHS Act and therefore were not required to provide any notices in accordance with that Act (Defence para 29).

(c)    When Mr Ingham and Mr Myles entered the lunchroom for the purposes of soliciting charitable donations from the employees, employees commenced raising issues relating to safety at the Project Site and neither Mr Ingham nor Mr Myles sought or encouraged such issues to be raised (Defence para 35).

(d)    Neither Mr Ingham nor Mr Myles organised industrial action by the workers (Defence paras 42 and 43).

(e)    Mr Myles in Mr Ingham’s presence advised the workers that any stoppage of work would be unlawful (Defence para 43(a)).

(f)    Mr Ingham’s mere attendance at the meeting was insufficient for him to be a person associated within the meaning of s 550 of the FW Act (Defence para 43(b)).

    Insofar as concerned Mr Myles and the events of 27 June 2014:

(a)    Mr Myles was not required to give notice of entry because of the Watpac open door policy and cl 33.4 of the EBAs (Defence paras 49, 96(a) and (b)).

(b)    The reason the employees of Talbrace and Tensioned Concrete did not return to work after the completion of the meeting was because there was no safe work for them to perform (Defence para 55). Mr Norris and Mr Barber told Mr Ross words to the effect that the access provided to the emergency stairs was suitable without first seeing that staircase (Defence para 69).

(c)    Mr Myles enquired about whether Mr Phelan, Ms Tollnaere and Ms Dargan were investigators but did not use offensive language or say to the effect that the workers would be returning to the Sheds (Defence para 77).

(d)    Mr Myles went to the lunch rooms to learn if the employees had any further issues and the employees remained in the lunchrooms because there was no safe work for them to perform (Defence para 79).

(e)    In any event the conduct of the meeting was authorised by cl 33.9 of the Subcontractor EBAs (Defence para 96(d) and (e)) and alternatively was agreed to by the respective employers and Watpac (Defence para 96(e)(ii)).

    Insofar as concerned Mr Griffin and the events of 1 July 2014

(a)    Mr Griffin denied making any reference to s 81(3) of the WHS Act in his conversation with Mr Ross (Defence para 102).

(b)    Mr Griffin entered the Project Site in accordance with cl 33.4 of the relevant EBAs and conducted a meeting in accordance with cl 33.9 of the relevant EBAs (Defence para 103). He did not enter the Project Site for the purposes of the WHS Act and was not required to give any such notices (Defence para 104).

(c)    The cessation of work was an incident of the employee’s entitlement to participate in a two-hour meeting pursuant to cl 33.9 of the relevant agreement, or was agreed to by the employers and Watpac (Defence paras 122, 139)

(d)    Mr Griffin was not required to sign the visitor’s register because of the Watpac open door policy (Defence para 130).

    Insofar as concerned Mr Sutherland and the events of 7 July 2014

(a)    Mr Sutherland entered the Project Site in accordance with cl 33.4 of the relevant EBAs and conducted a meeting in accordance with cl 33.9 of the relevant EBAs (Defence paras 147, 154, 158, 161). He did not enter the Project Site for the purposes of the WHS Act and was not required to give any such notices (Defence para 154).

(b)    Mr Sutherland was not required to sign the visitor’s register because of the Watpac open door policy (Defence para 155).

    Insofar as concerned Mr Bragdon and the events of 17 July 2014:

(a)    Mr Bragdon and Mr Ross had a discussion during which Mr Bragdon expressed concerns about the sequencing of works that were to occur on the project and about exclusion zones but otherwise deny the ABCC’s allegations concerning that conversation (Defence para 179).

(b)    Mr Bragdon said to Mr Ross that he proposed to have a meeting with members to ascertain if the members had other issues they wanted raised with management but was not required to give a notice of entry because he was not seeking to enter the Project Site in accordance with Pt 3-4 of the WHS Act (Defence para 181, 204).

(c)    Mr Bragdon entered the Project Site in accordance with cl 33.4 of the relevant EBAs and conducted a meeting in accordance with cl 33.9 of the relevant EBAs (Defence para 185, 203).

(d)    The cessation of work by the employees was authorised and agreed to by the employers in accordance with cl 33.9 of the relevant EBAs (Defence paras 196, 200, 201) and agreed to by Watpac (Defence para 200).

34    In its Reply the ABCC pleaded, in summary:

    The relevant EBAs were not agreements for the purposes of the general law, nor for the benefit of the Union for the purposes of s 55 of the Property Law Act 1974 (Qld). Clause 33.4 of the relevant EBAs did not authorise entry by the individual respondents.

    Watpac did not have an open door policy with respect to entry by employees or officials of the Union, and required such persons to comply with entry requirements and provide an entry notice in accordance with the FW Act or the WHS Act.

    Even if Watpac did have an open door policy, it had advised the Union that entry by employees or officials of the Union at Watpac construction sites would require a valid notice of entry and compliance with Watpac’s entry requirements.

    The relevant meetings were not authorised by cl 33.9 of the relevant EBAs.

    Mr Ingham and Mr Myles did not enter the Project Site for the purpose of soliciting charitable donations from members – rather they entered to address alleged safety issues on the job and inquire into a suspected contravention of the WHS Act. Accordingly they were required to provide the requisite notices under the WHS Act.

    Mr Griffin and Mr Bragdon both entered the Project Site for the purpose of inquiring into a suspected contravention of the WHS Act or alternatively for a purpose of consulting on work, health and safety matters and was required to provide requisite notices under the WHS Act, and therefore were seeking to exercise their rights in accordance with Pt 3-4 of the FW Act.

Principal issues in dispute

35    The ABCC alleges that the conduct of the individual respondents contravened s 417 of the FW Act on 26 and 27 June 2014 and 7 and 17 July 2014, and contravened s 500 of the FW Act on 26 and 27 June 2014, and 1, 4, 7 and 17 July 2014.

36    In considering the ABCC’s allegations of contravention and the defence raised by the respondents, it is clear that questions arise as to whether Watpac and the Project Subcontractors had agreed to the conduct of the individual respondents. In respect of Watpac, questions arise about Watpac’s alleged “open door” policy in respect of the Union and its officials/employees, and therefore whether there was any requirement on the individual respondents to give notices to Watpac before entering the Project Site.

37    Further, it is necessary for the Court to consider whether what authority (if any) cl 33.4 of the EBAs gave to the respondents in respect of rights of entry. It is also necessary to consider whether cl 33.9 of the relevant EBAs authorised the meetings conducted on the dates in question.

38    In the Statement of Agreed Facts the parties submit that the following issues require resolution:

26 JUNE 2014

Organising industrial action

143.    The questions to be resolved are:

(a)    Did Mr Ingham organise the stoppage within the meaning of s.417(1); and

(b)    In the event that Mr Ingham did not organise the stoppage, did he involve himself within the meaning of s 550?

Right of entry contraventions

144.    The questions to be resolved are:

(a)    was Mr Ingham exercising or seeking to exercise a right conferred by Part 3-4;

(b)    when Mr Ingham was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?

27 JUNE 2014

Organising industrial action

145.    The questions to be resolved are:

(a)    who bears the legal onus in respect of disproving or proving that circumstances identified in s. 19(2) applies.

(b)    Was the stoppage industrial action within the meaning of s. 19 and in particular:

(i)    was the stoppage authorised or agreed to by the employees by virtue of clause 3.4.1 of the Project Safety Management Plan?

(ii)    was the action based on a reasonable concern of each of the employees about an imminent risk to his or her health or safety?

(c)    If the stoppage was industrial action, did Mr Myles organise the stoppage within the meaning of s.417 (1); and

(d)    In the event that Mr Myles did not organise the stoppage, did he involve himself within the meaning of s. 550?

Right of entry contraventions

146.    The questions to be resolved are:

(a)    was Mr Myles exercising or seeking to exercise a right conferred by Part 3-4?

(b)    when Mr Myles was at the Project Site, was the hindrance or obstruction caused by Mr Myles intentional or did Mr Myles otherwise act improperly?

1 JULY 2014

Right of entry contraventions

147.    The questions to be resolved are:

(a)     was Griffin seeking to exercise a right conferred by Part 3-4; and

(b)     if Griffin was seeking to exercise a state or territory right of entry in accordance with Part 3-4, did he intentionally hinder or obstruct Watpac or otherwise act improperly?

4 JULY 2014

Right of entry contraventions

148.    The questions to be resolved are:

(a)     was Griffin seeking to exercise a right conferred by Part 3-4; and

(b)     if Griffin was seeking to exercise a state or territory right of entry in accordance with Part 3-4, did he intentionally hinder or obstruct Watpac or otherwise act improperly?

7 JULY 2014

Organising industrial action

149.    The questions to be resolved are:

(a)     Did Sutherland organise the stoppage within the meaning of s.417(1); and

(b)    In the event that Sutherland did not organise the stoppage, did he involve himself within the meaning of s. 550

Right of entry contraventions

150.    The questions to be resolved are:

(a)     was Sutherland seeking to exercise a right conferred by Part 3-4?

(b)     when Sutherland was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?

17 JULY 2014

Organising industrial action

151.    The questions to be resolved are:

(a)     Was the stoppage authorised by the sub-contractor EBAs;

(b)     Did Bragdon organise the stoppage within the meaning of s.417; and

(c)     In the event that Bragdon did not organise the stoppage, did he involve himself within the meaning of s. 550?

Right of entry contraventions

152.    The questions to be resolved are:

(a)     was Bragdon seeking to exercise a right conferred by Part 3-4?

(b)     when Bragdon was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?

CLAIMS AGAINST THE SIXTH RESPONDENT

153.    The principal issue that arises is whether the acts were within the scope of the relevant respondents’ actual or apparent authority.

154.    Were the actions of the individual respondents that allegedly amounted to a contravention of s. 417, within their actual or apparent authority?

155.    Were the actions of the individual respondents that allegedly amounted to a contravention of s. 500, within the actual or apparent authority of the individual respondents?

39    I will examine each of these issues in turn.

1.    26 June 2014

Organising industrial action

(a)    Did Mr Ingham organise the stoppage within the meaning of s 417(1)?

40    Section 417 of the FW Act provides:

417    Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.

No industrial action

(1)    A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:

(a)    an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or

(b)    a workplace determination comes into operation until its nominal expiry date has passed;

whether or not the industrial action relates to a matter dealt with in the agreement or determination.

Note:    This subsection is a civil remedy provision (see Part 4 1).

(2)    The persons are:

(a)    an employer, employee, or employee organisation, who is covered by the agreement or determination; or

(b)    an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.

Injunctions and other orders

(3)    If a person contravenes subsection (1), the Federal Court or Federal Circuit Court may do either or both of the following:

(a)    grant an injunction under this subsection;

(b)    make any other order under subsection 545(1);

that the court considers necessary to stop, or remedy the effects of, the contravention.

(4)    The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).

(5)    Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).

Note:    Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions.

41    In interpreting “industrial action” for the purposes of s 417, regard must be had to s 19 of the FW Act which provides:

19    Meaning of industrial action

(1)    Industrial action means action of any of the following kinds:

(a)    the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b)    a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c)    a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d)    the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2)    However, industrial action does not include the following:

(a)    action by employees that is authorised or agreed to by the employer of the employees;

(b)    …

(c)    action by an employee if:

(i)    the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii)    the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3)    …

Note:    In this section, employee and employer have their ordinary meanings (see section 11).

42    The respondents admit that, by stopping work and leaving the Project Site, workers on the Project Site engaged in “industrial action” within the meaning of ss 417(1) and 19(1) of the FW Act on 26 June 2014 (Defence para 41).

43    The current question for consideration however is whether Mr Ingham organised that industrial action. The issue of onus in analogous circumstances was recently summarised by Wigney J in BlueScope Steel Limited v Australian Workers' Union [2018] FCA 1574, where his Honour observed at [145]:

BlueScope bore the onus of proving that the AWU organised the 24-hour strike. While the civil standard applies, because BlueScope’s allegations were serious and exposed the AWU to penalties, satisfaction on the balance of probabilities is not achieved by “inexact proofs, indefinite testimony, or indirect inferences”: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; [2015] FCAFC 25 at [63]. In considering whether a party has proved its case on the balance of probabilities, the Court is required to take into account: the nature of the cause of action; the nature of the subject-matter of the proceeding; and the gravity of the matters alleged: Evidence Act 1995 (Cth), s 140(2).

44    In the present case the ABCC bears the onus of proving that Mr Ingham organised industrial action and, in the circumstances, contravened s 417(1). In considering whether it has successfully done so I respectfully have had regard to and adopt the comments of Wigney J set out above.

45    Mr Ingham’s evidence as set out in his affidavit affirmed 15 September 2016 was as follows:

7.    In approximately December 2013, a member of the Union named Mitchell Bamping was seriously injured in a scooter accident in Bali. The effect of those injuries was that Mitchell was unable to work and was confined to a wheelchair and had limited range of movement in his limbs. Mr Bamping had a wife and two young children for whom he was unable to provide because of his injuries and was in hardship.

8.    As a consequence, the Union decided to organise a charitable collection for Mr Bamping from other members of the Union in 2014. What this involved was an organiser or organisers of the Union meeting with members of the Union at various work sites throughout South-East Queensland and ask them to give up a day’s worth of their fares and travel allowances to donate to Mitchell and his family.

9.    On the morning of 26 June I attended a Lend Lease Construction Project at Fortitude Valley in Brisbane and held a pre-start meeting with the workers at that site and raised money for Mitchell.

10.    Later that day, at approximately 9.50am, I attended the Watpac Construction Project at 180 Ann Street, Brisbane to have a similar meeting with the workers at that project during their smoko break. To the best of my recollection, the smoko break at that site was 10.00am until 10.30am and my entry was designed to coincide with that period. I attended the site together with Mick Myles.

11.    At no time prior to entry that day, did I (or Mick) provide Watpac or any of the sub-contractors to Watpac with notice of our intention to enter the site. It was not my intention to enter the site in the exercise of a right pursuant to industrial or safety legislation, but rather, I was entering the site to speak to members about a matter unrelated to their employment at the Project.

46    He also deposed:

16.    Shortly after we entered the site, Mr Ross approached me and we had a discussion about the basis of our entry to the site that day. I cannot now recall word for word the exchange that we had. That discussion was had at the café near the site office.

17.    I advised him that we were present at the site for the purpose of raising money for a member of the Union, Mitchell Bamping, who had been seriously injured in Bali, and that we were going to speak to the members during their smoko break in the crib shed for that purpose. Mr Ross went on to argue that I should not be present on the site because I had not given a right of entry notice. While I did not dispute that I had not issued an entry notice, I largely ignored that issue because I did not want to get into an argument with him about right of entry in circumstances where, as set out above, I was not exercising statutory right of entry.

47    In relation to the meeting he deposed:

20.    The meeting commenced at approximately 10.05am once the workers all assembled for their smoko break in the crib sheds which were on the Level 3 basement. During the first 10 minutes of that meeting, I explained to the workers the plight of Mitchell and the fact that we were raising money for him and I asked for a day’s fares and travel towards his cause.

21.    There was a unanimous vote of support for that proposition and we then circulated the relevant paperwork, namely a form which all workers sign to authorise the monies to be deducted from their wages and those monies are then remitted to the Union by cheque, which makes the process of obtaining those funds for the cause that you are raising them for much more clean and tidy. Over a period of weeks the Union ultimately raised around $44,279.51 for Mitchell and his family.

22.    Annexed and marked JI1 is a ledger setting out all of the monies which we raised for Mitchell between 19 June 2014 and 30 October 2014.

23.    Annexed and marked JI2 is a photograph of me presenting to Mitchell and his mother a cheque for the monies which we raised for him.

24.    The discussion in relation to Mitchell concluded at or shortly after 10.14am that morning. As soon as that issue was dealt with, workers began to raise, from the floor of the meeting, issues in relation to safety at the job sit. The issues that were raised included:

(a)    issues in relation to access to the upper decks at the site for example the fact that at one point they had to climb up a precarious ladder to get to the next work level;

(b)    the lack of a second point of egress from the upper levels of the job in circumstances where the only two modes of egress at that point were the hoist and the crane, both of which had recently been rendered inoperative due to windy conditions; and

(c)    various other safety issues which had arisen at the site from time to time which I cannot now recall.

25.    The conclusion that was reached by the workers at the meeting that day was that they would withdraw their labour for the balance of the day because they did not feel that it was safe to keep working. Mick and I did not encourage the workers to take that course. That was the independent decision of the workers. The Union considers safety at work to be a matter of the utmost importance especially given the dangers that are present every day in the construction industry.

26.    The workers then ceased work and left the site. I did not organise or encourage the stoppage of work in any way.

48    In relation to their visit to the Project Site on 26 June 2014, Mr Myles gave evidence consistent with that of Mr Ingham. In his affidavit affirmed 15 September 2016 Mr Myles deposed:

3.    As at 26 June 2014, as a part of my role as an organiser, I was assisting the union in raising money for a member of the union named Mitch Bamping, who has been involved in an accident in Bali. My understanding was that Mr Bamping was unable to support himself as a consequence of the injuries he suffered in his accident and the Union was therefore attempting to raise money to support him in hardship as an act of charity for him and his family.

4.    The fundraising for Mitch involved me and other organisers attending various construction projects throughout South East Queensland and speaking to members of the union about Mitch’s plight and inviting them to donate one day’s fares and travel towards his cause. The way that that was done was by having the members complete a form which authorised the amount of money to be deducted from their wages and remitted to the charitable collection fund via the Union.

5.    Throughout the period either side of 26 June 2014 I would have had over a dozen worksite meetings for the purpose mentioned above, and as I understand it, the Union raised many thousands of dollars for Mitch. I regarded it as an important and worthy cause and in my experience the members of the union with whom we met to discuss Mitch’s plight, were very receptive to it.

…

8.    On 26 June 2014 I attended the Project, together with the Assistant Secretary of the Union Mr Jade Ingham. The purpose of our visit to this site that day was to have a meeting of the kind mentioned above, for the purpose of raising money for Mitch. That was the third construction project that Jade and I had done meetings of that kind at that day.

9.    I have a fairly good recollection of the events on 26 June 2014, because it was an unusual visit to the Project. It was unusual because it was a different purpose for attending the Project to the norm, and because I was with another official, which was different to the norm and because I was not the usual organiser for the Project.

…

11.    Prior to entering the Project, Jade and I were having a sandwich and a coffee at a café on the street level adjacent to the Watpac site office. While we were doing that some representatives of Watpac, whom I believe to have been Brad Ross and Peter Luppi and someone else whose name I cannot recall, came up to us and spoke to Jade. They asked Jade words to the effect:

“Are you here to do that fundraiser?”

12.    Jade said:

“Yes”

13.    We then had a general discussion about the fundraiser and what was happening around the industry. That discussion was a fairly short one and it was cordial. …

49    Mr Myles gave the following evidence about Mr Ingham addressing the workers on 26 June 2014:

16.    Jade addressed the meeting, and I did not do so. Jade explained to the meeting that we were there to raise money for Mitch and that cause was warmly received by the members in attendance. I estimated there were approximately at least 110 workers present at that meeting.

17.    Whilst Jade was taking [sic], I circulated the form that needed to be completed by the workers and they all unanimously endorsed the notion of making the requested donation to Mitch and they all completed a form. The process took perhaps 10-15 minutes at the most.

18.    After the fundraising process was complete, the workers, of their own motion, raised concerns in relation to safety. As I recall the concern was in words to the following effect:

“What the fuck? Why are there no fucking scaffold stairs any more? I cannot walk from the fucking stop down to the fucking bottom without any fucking stairs? What are these fucking wankers doing? It is not fucking safe to have no stairs.”

19.    Another worker responded in words to the following effect:

“You guys should try having a walk around this joint. It is a fucking mess. What the fuck are they doing?”

20.    Jade arrived and then responded in words to the effect of:

“Well boys, we just can’t magically fix it for you. You have to raise the issue if you want to get it fixed.”

21.     A worker, whose name I cannot recall, then made a proposal in words to the effect of:

“Well fuck it, someone can stay and fix the stairs and we should go home because we don’t want to work here while they are nor scaffold stairs, because it is not safe”.

22.    That motion was unanimously supported by the workers present and those present at the meeting withdrew their labour for the balance of the day.

23.    Jade and I both told the workers that they would not be paid if they withheld their labour because it would be classified as unlawful industrial action. Despite that warning they were undeterred and they left the site. At no stage did we encourage or organise the workers to leave the site.

50    A witness statement filed by the ABCC on 24 August 2016 in respect of Mr Ross’ evidence on which the ABCC relied contained the following:

42.    Mr Ross walked up to Myles and said words to the effect “What are you doing here?” Myles replied “We are here to raise money for a fellow member who was injured in Bali. We want the boys to donate a day’s travel.”

43.    Myles then said words to the effect of “Jade’s up there. You can go and talk to him” and gestured towards him.

44.    Mr Ross then approached Ingham who was standing approximately twenty metres away and approximately 10 metres outside the lunchroom entrance and had a conversation to the following effect with him:

Mr Ross said:    What are you doing here. Michael tells me you are here to raise money?

Ingham said:    Yes but you also have issues on the job.

Mr Ross said:    I haven’t received a right of entry (ROE) notice and therefore you shouldn’t be on site.

Ingham said:    Are you going to give me the standard spiel about ROE?

Mr Ross said:    Yes

Ingham said:    Well that’s fine I am going to have a meeting with the men and I will advise you of the result.

45.    When Mr Ross asked Ingham what the issues were on the Project he said words to the effect that there were safety issues in relation to access, that the hoist was not operational and that Watpac were pouring both sets of access stairs to the top deck today. Mr Ross stated to Ingham that this was not correct, that the hoist was operational and that Watpac were only pouring one set of access stairs on that day.

51    In evidence in chief during the hearing Mr Ross affirmed that, in his original conversation with Mr Ingham, Mr Ingham had referred to the safety issues on the Project Site. In particular:

MR MURDOCH … And was that the first occasion that you spoke to Mr Ingham that day?---That was the first occasion that I had met Mr Ingham, yes.

First occasion you had met him at all?---Yes.

Okay. Now, what was the effect of that discussion with Mr Ingham?---Had a bit of a right-of-entry discussion; we had – we just – we also talked about the fundraising that Mr Myles had told me about, and – we had discussion about some suggested safety issue on the project.

Right. Now, you’ve said “some suggested safety issues”; who raised the – what you’ve referred to as the suggested safety issues?-- Mr Ingham.

And what do you recall – sorry. Do you – did he tell you what the nature of those suggested issues was?---I don’t believe at that time; he just told me he had some safety – well, I can’t recall.

Cool. Now, can you tell the court what your recollection is, if any, about any discussion with Mr Ingham about right of entry?---I would have raised the issue that a right-of-entry notice had not been provided.

Right?---And that was – that was the legislation at the time, that they were meant to, so - - -

And anything else about right of entry?---No, not that I can recall.

HER HONOUR: When you say you would have raised that with Mr Ingham, what do you mean?---So in that instance, I did raise – so “would of” – I shouldn’t use that. So I did have a right-of-entry discussion; the actual infinite details of that I couldn’t recall – can’t recall right now. But at that time, every union official that entered site, I would have a right-of-entry discussion, one day before them with.

That was your practice?---That was – yes, that was a requirement that we had.

Thank you.

MR MURDOCH: And you mentioned your notes before. Did you make notes of that discussion with Mr Ingham?---I made notes on that day, yes, I made notes, yes. Very handy about this.

Sorry?---They would be very handy at this point in time.

(transcript pp 32-33)

52    Mr Ross referred to a document he identified as his contemporaneous notes. These notes were tendered and marked as exhibit 8(A), and provided as follows:

The following events occurred on the 26/6/14 at the ''180 Brisbane" site at 192 Ann Street Brisbane city;

•    At approximately 9.50am I was advised by site personnel that Union officials from the CFMEU were on site.

•    I immediately left the site office for the site to locate the officials.

•    Upon arrival on Basement 3 on the Ann street side of the project I can came across Michael Miles from the CFMEU. I requested Mr Miles to advise what he was doing on the site to which he provided the following; 'We are here to raise money for a fellow member who became was injured whilst on holidays in Bali, we want the boys to donate a day's travel.' Mr Miles then Suggested I continue my conversation with Jade Ingham, also of the CFMEU, who was located outside the lunch room about 20 meters away. I approached Mr Ingham and again asked why they were on site, Mr Ingham advised that there were several issue's on the project that need addressing and he intended on having a meeting with the workers to discuss. He advised there was access issues to both the hoist and stairs to the live deck, both of these were found to be incorrect.

•    It was at this point I advised Mr Ingham that I had not received a right of entry notice from either himself or Mr Miles and they should not be on site.

•    Mr Ingham then proceeded to suggest I was there to provide the 'standard line' for right of entry, to which I agreed that I was.

•    Mr Ingham then advised they would be meeting with the men and would advise the result.

•    At approximately 10.35 workers began leaving site.

•    Mr Miles and Mr Ingham were waiting around at the base of the tower crane talking to the Watpac delegates David Geelan and Brian Baker.

•    I approached and advised both organisers that work place health and safety had been contacted and was on their way. Mr Ingham then advised me that I should call them back and inform the department that they had left site and there was no reason to attend. He then added the Safety Committee wanted a meeting with Watpac management to discuss further issues raised during the meeting.

•    At no time was any issue advised that would affect the site or any imminent risk advised to myself.

•    It was at this time, around 10.45am, that the department arrived. Where I escorted the department to the site office and I did not see either Mr Miles or Mr Ingham again.

•    After a brief meeting with the department I met with the Safety Committee in the Watpac meeting room, issues raised by the committee were as follows;

a)    Lighting in toilet cubicles suggested to be inadequate.

b)     Access lighting under the live deck required when early morning activities are taking place

c)     The physical size of the toilets was suggested to be too small.

d)     It was suggested insufficient power boards were available to the Western side of the lift core where some minor works were occurring.

e)     It was advised there appeared to be a area of the deck where power leads did not reach, about a 5m zone near the pour joint.

f)     The quantity of tables and chairs in the lunch room was questioned as being adequate.

g)     It was suggested both sets of fire stairs were intended to be poured on the same day, restricting access from the live deck.

h)     Some members of the Safety Committee expressed concerns that they were not being listened to.

i)     It was advised trades were working “over the top of each other” on the live deck. The example was given of the steel fixers and post tensioning trades.

j)     An issue was raised about a small slab pour that had been poured without sign off being received from the form worker. It was found to be poured with a set of braces missing from a frame.

k)     Hours or work for some trades was raised as being over the 10 hrs maximum allowed within the EBA.

l)     It was requested to ensure adequate lighting was provided for crane drivers to climb the crane towers in early morning starts.

53    In giving his evidence Mr Ross continued:

Now, one of the matters that I asked you about was whether Mr Ingham apprised you of the nature of the safety issues. Does reference to your notes assist your recall in respect of that issue?---I’ve written here:

Mr Ingham advised that there were several issues on the project that needed addressing - - -

Yes?---

- - - and he intended on having a meeting with the workers to discuss.

Yes?---

He advised, there was access issues to both the hoist and the stairs to the live deck; both of these were found to be incorrect.

And, having read that, does that assist you to recall the conversation?---Yes. Yes.

And was the conversation to that effect?---Yes, best of my knowledge.

Now, in respect of right of entry, what if anything – and if needs be, refresh your memory from your notes – what if anything did you say to Mr Ingham about what the requirements in respect of right of entry were?---I said that Watpac had not received a right-of-entry notice from either himself or Mr Myles, and they shouldn’t be onsite.

And Mr Ingham’s response to that was?---He basic – so I’ve written:

Mr Ingham then proceeded to suggest that I was there to provide the standard line for right of entry, to which I agreed that I was.

Now, did Mr Ingham then make any statement as to what he proposed to do thereafter?---He advised that he was – there would be a meeting with the men, and would advise the result.

Now, you mentioned that Mr Ingham raised two issues with you in respect of the site – safety issues. Did you provide him with any response, at that point, to those matters?---That was the first that I was made aware of them, so I didn’t provide a response, no.

(transcript pp 34-35)

54    During the hearing Mr Ingham reiterated his affidavit evidence and denied that he had told Mr Ross that he (Mr Ingham) was at the Project Site because of “issues on the job”. During cross-examination he explained further:

HER HONOUR: Can I just ask a question of Mr Ingham. Mr Ingham, you said you had been to Lend Lease earlier that morning. So why did you go to Watpac? Why – was there other places you were looking at going?---Yes.

Why Watpac?---Well, your Honour, we had a scheduled itinerary of meetings with a view to, you know, raising money from the membership to support this young member who at that time had been in the PA Hospital for nine months, and he couldn’t go home because they didn’t have wheelchair facilities at his – at his house. And so we tried to raise some money to do some work at – at the house where his mum was living, and also to get his wife and two young children over from Indonesia, Balinese wife and his – and his young – two young kids. And so he was doing it pretty tough and we had set up a series of meetings. I reckon it was over about a week or even a fortnight. So, you know, the Lend Lease one and the Watpac one were two of many, and I – yes. I don’t remember where we were the day before or the day after, but I know that we did a heap of meetings over the course of a week, or even two weeks. I did a lot of them personally. It was one that I got personally involved in. I don’t always get involved in all of them, but this one I did. I had been to see Mitchell in hospital, and – so, yes, that’s – hopefully that answers your question, your Honour.

Thank you.

MR MURDOCH: Now, I’ve suggested to you that in this discussion that you had with Ross before you had the meeting, you had raised that there are issues on the job, and that he asked you what the issues were. Now, what do you say about that?---About – so this is on the way into the smoko shed?

Yes, yes?---Well, no, we didn’t have a conversation about safety issues at that time. It was, again, about right of entry and about what I was doing to raise money for Mitchell Banthy.

Now, I suggest that there was such a discussion, and that in the course of that discussion you said that there was safety issues in relation to access, that the hoist was not operational and that Watpac was pouring both sets of access stairs to the top deck that day?---We didn’t have that conversation then.

Now, you did know, though, didn’t you, of there being safety concerns on this job, or what you understood to be safety concerns prior to you entering?---Yes.

Because if you go to your paragraph 19 of your affidavit you refer there to having received anecdotal reports, etcetera, from people that the safety conditions of the site were unsatisfactory, etcetera. Now, it would be a logical thing, I suggest, that if you had received such reports, that they would be of concern to you, given your position in the union?---Yes, I receive those reports daily from multiple sites.

Well - - -?---It’s – it’s an unsafe industry, so - - -

You – you may well, but regardless of the frequency of you receiving such reports, receiving such reports would be of concern to you?---They would, yes.

Yes. So you’re there with the person who you knew, I imagine, to be the project manager?---Brad Ross?

Yes?---I didn’t know what his role was. I knew he was either a seat – site manager or – he was a senior rep on site, yes.

And - - -?---I didn’t know what his title was, though.

- - - I suggest that if you’ve gone to this – if you’re onsite, and you’re there having a discussion with a senior person from Watpac, that it would be – the logical thing for you to do to raise with him the safety matters that you’d been told about prior to you coming on site?---Well, a couple of things: (1) it’s not my – not my direct responsibility within the union to resolve site-specific safety issues. There are organisers whose responsibility that is. And the other thing about it is we’ve spent a lot of time and effort in empowering Safety Committees and health and safety representatives. So ultimately, that’s where issues should be resolved. I didn’t feel that it was my place to have a direct discussion about that with – with Mr Ross or a site manager. I would – if it gets to a point where it escalated and things are extremely serious, well, I may raise that with Mr Brockhurst or someone at that level in the organisation. The other thing there is that’s not why I was there that day. I was there to raise money for Mitchell Banthy.

(transcript pp 187-188)

55    The concept of “organising” industrial action for the purposes of s 417 of the FW Act is not defined by the legislation. As White J recently observed in Australian Building and Construction Commissioner v Huddy [2017] FCA 739:

66.    The term “organise” used in conjunction with “action” or “industrial action” in ss 343, 348 and 417 of the FW Act is not defined. It is a commonly used term in industrial parlance but lacks a precise definition.

67.    The “organisation” of “action” (ss 343(1) and 348) or “industrial action” (s 417(1)) involves the intentional arranging, bringing about, putting in place, procuring or coordinating the action in question. Meanings of this kind seem consistent with the first meaning given by the Macquarie definition to the word “organise”, namely:

To form as or into to a whole consisting of interdependent or coordinated parts, especially for harmonious or united action: to organise a party.

68.    However, saying this begs questions about the kind of conduct required. The circumstance that the proscription is on the organisation of a form of human activity and not inanimate objects suggests that organising has the connotation of positive conduct which is intended to, and does, induce or procure others to engage in conduct and/or which marshalls or coordinates the activities of those who are willing to do so. Understood in this way, conduct constituting organising in the relevant sense may take a variety of forms. As was said by Isaacs J, in a different statutory context, in Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170 at 203 the word “organise” is “of large connotation”.

56    White J also referred to earlier comments of Jessup J in Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223 as follows:

70.    The notion that the procuring of industrial action may constitute the organisation of that action is supported by the reasoning of Jessup J in Williams v CFMEU [2009] FCA 223; (2009) 179 IR 441.

[79]    In the light of the evidence to which I have referred, it would be naïve not to recognise that the burden of Mr Mates’ message to the workers in the meeting on 31 July 2006 was that they should perform no further work on the site that day. No doubt he had his own good reasons for conveying that message. I accept also that it was not a direction. It was, however, a recommendation with the authority of a union organiser. Neither would it have appeared to the workers to be any spur-of-the-moment thing: Mr Mates’ reference to something having been raised with the builder on the Friday, and not sorted out, would have given an element of considered seriousness to what he was recommending. I accept also that the workers generally agreed with Mr Mates’ assessment of the situation on site, but he himself added an opinion about Mr Leonard’s ability to control matters of safety on site which would not otherwise have been known to the workers. That Mr Mates would have felt able to make a comment about such a subject could only have added further authority to what he said.

[80]    For the above reasons, I accept the applicant’s allegation that, on 31 July 2006, Mr Mates organised a stoppage of work on the site. I also accept the alternative, and effectively indistinguishable, formulation relied on by the applicant, namely, that Mr Mates “took ... steps to procure” such a stoppage.

This aspect of the reasons was not disturbed on appeal: CFMEU v Williams [2009] FCAFC 171; (2009) 262 ALR 417.

57    In summary: on the one hand Mr Ingham’s evidence (supported by Mr Myles) was that he entered the Project Site to raise money for an injured Union member, that the workers on the Project Site took advantage of his presence to raise workplace issues with him, and that he listened to them but did not organise industrial action by them. On the other hand, Mr Ross’ evidence was that Mr Ingham entered the Project Site with the specific intention of discussing workplace issues with the workers there.

58    The ABCC submits, inter alia, that the Court should infer that Mr Ingham organised the stoppage in circumstances where the workers had worked on the Project Site prior to the arrival of Mr Ingham and Mr Myles but decided to stop work after meeting with them. The ABCC also submits that evidence of Mr Ingham in relation to his presence on the Project Site and his role in the meeting of the workers should not be accepted because (in summary):

    There were inconsistencies in the evidence of Mr Ingham and Mr Myles as between their affidavit evidence and their oral evidence during the hearing; and

    The evidence of Mr Ingham and Mr Myles as to the concerns of workers during the meeting of 26 June 2014 are inconsistent with the complaints of workers, through the Safety Committee, to management.

59    On balance, and in light of the evidence before me, I consider that Mr Ingham’s presence at the Project Site on 26 June 2014 related to his fund raising efforts in respect of the injured Union member and that he did not “organise” the industrial action which took place. My reasons for forming this view are as follows.

60    First, I found Mr Ingham credible in respect of his evidence concerning the injured Union member and the desire of the Union to be of assistance. I note Mr Ingham’s evidence concerning his visits earlier that day to other sites for the purpose of fundraising – in particular that Watpac was only one of several sites that Mr Ingham and Mr Myles visited on 26 June 2014.

61    Second, I note the following evidence of Mr Ingham concerning events on sites such as the Project Site:

… it’s not my – not my direct responsibility within the union to resolve site-specific safety issues. There are organisers whose responsibility that is. And the other thing about it is we’ve spent a lot of time and effort in empowering Safety Committees and health and safety representatives. So ultimately, that’s where issues should be resolved. I didn’t feel that it was my place to have a direct discussion about that with – with Mr Ross or a site manager. I would – if it gets to a point where it escalated and things are extremely serious, well, I may raise that with Mr Brockhurst or someone at that level in the organisation. The other thing there is that’s not why I was there that day. I was there to raise money for Mitchell Banthy.

(transcript p 188 lln 17-26)

62    I accept Mr Ingham’s evidence that if the Union had intended to organise industrial action at the Project Site, it probably would have been through organisers on the Project Site rather than through him.

63    Third, I note the evidence of Mr Myles concerning the presence of Mr Ingham on the Project Site. Mr Myles’ evidence was consistent with that of both Mr Ingham and Mr Ross insofar as they recollected what Mr Myles said.

64    Fourth, I considered Mr Ross to also be a credible witness, noting that his recollection was essentially dependent on his notes, but also noting that those notes were contemporaneous (transcript p 109 lln 7-13). I consider it plausible that, in the conversation of Mr Ross and Mr Ingham prior to the workers’ meeting at the Project Site, Mr Ingham did make reference to “issues” at the Project Site. Mr Ingham conceded that he could not precisely remember what he had said to Mr Ross during that conversation, although he was aware of alleged safety issues at the Project Site (see, eg, transcript p 187 lln 40-41). Mr Ross gave evidence that Mr Ingham had made reference to such issues, and Mr Myles was not present at this point so was not in a position to give evidence relating to that aspect of the conversation. However even accepting the likelihood that Mr Ingham referred to “issues” in the course of his conversation with Mr Ross, it is equally plausible that he did so as an assertion of position, to indicate his familiarity with what he understood to be worker concerns about the Project Site before speaking with them about the fundraising activities. That prior to the meeting Mr Ingham and Mr Myles were not themselves particularly concerned with safety issues on the Project Site is illustrated by their preparedness to wait for the workers to be on break before they spoke to them so as not to disrupt the workplace.

65    Fifth, I note Mr Ross’ evidence that following his conversation with Mr Ingham, he contacted the head office of Watpac:

Okay. Now, did you receive any response from head office about the matter that you raised?---Yes.

Yes? And what was the response?---That they had contact Workplace Health and Safety – or the Department of Workplace Health and Safety – and they were sending down some inspectors at the time.

(transcript p 35 lln 39-44)

66    However I do not consider that Mr Ross’ concerns, and his contacting of the head office, or the further contact of the Department of Workplace Health and Safety, were relevant to the question whether Mr Ingham organised the subsequent industrial action.

67    Sixth, I note the inference the ABCC has sought that I draw concerning the industrial calm prior to Mr Ingham’s arrival, contrasted with the action the workers took after the meeting with Mr Ingham. It is clear that Mr Ingham and Mr Myles convened the meeting, and that Mr Ingham addressed the meeting. However I am not satisfied that the conduct of Mr Ingham in particular could be described as “organisation” of the industrial action, being the intentional arranging, bringing about, putting in place, procuring or coordinating the action in question. Certainly it appears that the arrival of Mr Ingham and Mr Myles at the Project Site was a catalyst for the subsequent industrial activity by workers there, however it is equally possible that workers used the opportunity of Mr Ingham’s presence to raise issues with him and the airing of such issues in turn provoked the industrial action at the initiative of the members.

68    Finally, in their oral and written evidence both Mr Ingham and Mr Myles denied that Mr Ingham had in any way arranged the industrial action, in the sense of planning or co-ordinating it. This evidence was not contradicted by direct evidence adduced by the ABCC.

69    As I am satisfied that Mr Ingham did not organise the industrial action on 26 June 2014, it follows that the Union similarly did not organise it.

(b)    In the event that Mr Ingham did not organise the stoppage, did he involve himself within the meaning of s 550?

70    Section 550 of the FW Act provides as follows:

550 Involvement in contravention treated in same way as actual contravention

(1)    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

Note:    If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

(2)    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced the contravention, whether by threats or promises or otherwise; or

(c)    has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)    has conspired with others to effect the contravention.

71    As is made clear by s 550 of the FW Act, a person who is “involved in” a contravention (of, eg, s 417) is taken to have contravened that provision. The phrase “involved in” is defined broadly by s 550(2) by reference to accessorial liability. This requires that the person be an intentional participant in the contravention based on actual knowledge of the essential facts constituting the relevant contravention: Yorke v Lucas (1985) 158 CLR 661 at 666-667.

72    Section 550 and predecessor legislation have been the subject of consideration in numerous decisions in this Court.

73    In Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87 the Full Court considered a claim of accessorial liability in relation to breaches of provisions of the Workplace Relations Act 1996 (Cth) relating to a greenfields certified agreement. Relevantly, the claim related to a meeting between certain union officials and employees at a construction site following which meeting the employees commenced the industrial action. At first instance the officials led evidence to the effect that they did not advance, procure or encourage the withdrawal of labour by the employees but, rather, took positive steps to prevent it. In particular Middleton J noted:

14    Prior to the occasions when the workforce took industrial action on 29 July and 19 August 2004, Powell attended a meeting of the workforce as a representative of the Union. The uncontradicted evidence of Powell, Molina, Levy and Aleknavicius was that, on each occasion, Powell, on behalf of the Union, spoke against motions put by a member of the workforce from the floor of the meeting, to take industrial action. Furthermore, he advised the workforce that there was a procedure in place and that there would be significant adverse consequences in the event that industrial action was taken, including the making of s 127 Workplace Relations Act orders against them involving loss of pay. The "procedure" from the context of his evidence, was clearly a reference to the dispute resolution procedure under the Certified Agreement. He told the meeting, in this respect, that "we’ve got to follow the procedure and we’re bound to it". Furthermore, Aleknavicius, a member of the Union who attended the meeting on 29 July 2004, gave evidence to the effect that, when a strike motion was put from the floor for the removal of labour, Powell actually spoke against this motion. Levy, the site steward, gave evidence to the same effect.

74    His Honour later continued:

25    It should also be noted that the Industrial Magistrate did not find that the evidence as to what was said by the Union officials to discourage the workforce from striking was not genuine and known by the workforce not to be genuine but, rather, was covert encouragement so seeking to avoid responsibility for breaches of the Certified Agreement and the Act, the "wink and a nod" point as it was described in submissions. No doubt, there could be such cases. It is not difficult to imagine that, on a militant site, Union officials could covertly organise industrial action and yet not be implicated in any overt action. However, that finding was not made in this case. It could hardly have been properly made in view of the fact that that hypothesis was inconsistent with the evidence of the witnesses, was not squarely put to and explored with the witnesses, and was only faintly adverted to (if at all) in submissions.

26    Stripped to its essentials, the case for breach of s 170MN was that the organisers attended the meeting on 29 July 2004 arranged by the job representative at the request of the workers but counselled against strike action and urged compliance with the dispute resolution procedures and the Certified Agreement generally. Nonetheless, the employees decided to strike. After the meeting, the job representative and the Union organiser consulted with the employer’s representative and conveyed the reason for the stoppage. In our respectful opinion, those actions could not reasonably be held to make either the Union or the organisers a party to, or concerned in, the withdrawal of labour so as to conclude that they engaged in the particularised industrial action pursuant to s 4(8) of the Act. Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 479–480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words "party to, or concerned in" reflect that concept. The accessory must be implicated or involved in the contravention…

27    There was no proper basis for the finding by the Industrial Magistrate that on the evidence there was "an irresistible inference" that the Union by its officers (Powell and Molina) played a significant part in the activities which led to the withdrawal of labour.

28    Even accepting that Levy was a representative of the Union as distinct from merely an employee representative, the fact that he arranged the meetings and invited Powell and Molina to attend requires to be seen in context. Plainly the workforce wanted the Union to take up its concerns about the three issues with management. The meetings were called at the request of the workers. There is no finding and no evidence which would support a finding that the meetings were called by the Union for the purpose of taking industrial action. The conduct of the Union is to be seen in its entirety, but most importantly with reference to the position which it adopted at the meetings when the workforce voted for industrial action to be taken.

(Emphasis added.)

75    The Full Court concluded that the relevant officials and the union had neither organised nor been involved in the industrial action, which had occurred at the volition of the workers on the relevant site.

76    In Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 White J said:

227.    In order to be knowingly concerned in, or party to, a contravention, a person must have engaged in some conduct which “implicates or involves” him or her in the contravention, so that there is a “practical connection” between the person and the contravention: Qantas Airways Ltd v Transports Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503 at [324][325]. See also Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]. In Trade Practice Commission v Australian Meat Holdings Pty Ltd [1988] FCA 244; (1988) 83 ALR 299, Wilcox J at 357 quoted with approval the following passage from the judgment of the Full Court of the Supreme Court of Western Australia in Ashbury v Reid (1961) WAR 49:

The question which a Court should ask itself in determining whether an act or omission on the part of an individual comes within the terms of section 54 is whether on the facts it can reasonably be said that the act or omission shown to have been done or neglected to be done by the defendant does in truth implicate or involve him in the offence, whether it does show a practical connection between him and the offence.

The statement in Ashbury v Reid was also approved in R v Nifadopoulos (1988) 36 A Crim R 137 at 140 with the Court (Kirby ACJ, Maxwell and Carruthers JJ agreeing) saying that “a person cannot become criminally involved in an act made unlawful by mere knowledge or inaction on his part – some act or conduct on his part is necessary”.

228.    In Yorke v Lucas (1983) 49 ALR 672 at 681, the Full Court of this Court approved the following statement of Pennycuick VC in Re Maidstone Buildings Provisions Ltd [1971] 1 WLR 1085 at 10923:

[T]he expression “party to” must on its natural meaning indicate no more than “participates in” or “concurs in”. And that, it seems to me, involves some positive steps of some nature.

See also Sent v Jet Corporation of Australia [1984] FCA 178; (1984) 2 FCR 201 at 2089.

229.    In order for a person to have been knowingly concerned in a statutory contravention, that person must have been an intentional participant, with knowledge of the essential elements constituting the contravention: Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 at 670. However, it is not necessary that a person with knowledge of the essential elements making up the contravention also know that those elements do amount to a contravention: Yorke v Lucas at 667; Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at [48]. An accessory does not have to appreciate that the conduct involved is unlawful: Australian Competition and Consumer Commissioner v Giraffe World Australia Pty Ltd (No 2) [1999] FCA 1161; (1999) 95 FCR 302 at [186].

230.    Actual knowledge of the essential elements constituting the contravention is required. Imputed or constructive knowledge is insufficient: Young Investments Group Pty Ltd v Mann [2012] FCAFC 107 at [11]; [2012] FCAFC 107; (2012) 293 ALR 537 at 541.

77    White J reiterated these principles in Australian Building and Construction Commissioner v Huddy [2017] FCA 739 at [444]-[447], finding that union organisers were liable pursuant to s 550 of the FW Act for a contravention of s 417. In that case the ABCC relied on the same conduct in alleging the counselling and procuring of the relevant industrial action by the organisers, as that on which it relied for the allegation that they had organised the industrial action. White J found these allegations were not substantiated, however at [450] found that the conduct of the organisers did amount to aiding and abetting the relevant contraventions. His Honour considered that he could infer that the organisers knew that the workers had the requisite intentions (that is, to contravene the legislation) and further that:

    Mr Huddy had indicated to the workers during the meeting that further negotiation and discussion with the employers would be fruitless and the employees were aware of this when they made their decision to stop work (at [457]);

    Mr Huddy understood that the motion was for the relevant employees to withdraw their labour until there was a resolution of their dispute (at [458]);

    Mr Huddy was aware that the stop work was unlawful and had warned the employees of that fact (at [458]);

    Mr Huddy had looked at the clause himself and had formed the view that the employer was probably correct in its understanding of the effect of the clause. He was also aware of the dispute resolution clause in the relevant agreement and knew that union did not wish to risk taking the matter to the Fair Work Commission (at [462]);

    Mr Huddy involved himself in the industrial action in a number of ways, in particular by his statements to the employees “we didn’t get this far without a fight”, “we need to stick together, we can’t have half of you going back to work and half here waiting in the crib room and then everyone reaping the benefits. We’ve got to be together on this”, and his later statement “they are just bluffing, don’t give in to these fellas” (at [462]); and

    Mr Huddy remained at the crib room, in breach of his right of entry conditions, to demonstrate his support to the employees, His Honour was satisfied that while there, he did just that (at [462])

78    In Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union (The Australian Paper Case) [2017] FCA 167 Jessup J at [148]) rejected the allegation that the union officials organised the relevant contravening industrial action, and for similar reasons rejected the allegation that they counselled, procured and induced those contraventions. However his Honour accepted the contention that the union officials were knowingly concerned in the contraventions of s 417 within the meaning of s 550(2)(c). In particular in the circumstances of that case his Honour noted evidence that:

    The acting health and safety representative on the site contacted one of the relevant union officials, Mr Thornton, “because we weren’t getting anywhere, and I just wanted to try and get some help”. He asked him “if he could come out and help us with some issues – some safety concerns – that we couldn’t get anywhere with the actual company” and “if [he] could please help [them] try and get to the bottom of it.”

    A second union official, Mr Sharp, spoke to the meeting in the car park, and said that the employees “required our assistance to try and get something sorted out”. He said that the HSRs had asked for “our assistance to come and help”. He said that he was on the site “to assist the HSRs and get a resolution and hopefully get the blokes back to work.”

    A third union official, Mr Dodd, accepted that his right-of-entry notice was issued in response to the request he had received from union members “to come out and assist”.

79    While his Honour was satisfied that the union officials did not instruct, advise or encourage the employees to refuse to work, or to sit in the sheds, his Honour found that:

155.    They were, however, knowing and willing participants in the project, to which I infer that there was at least majority assent at the meeting in the car park, to prevail upon the company representatives to arrive at a more accommodating resolution of the safety issues in dispute than had been achievable in the previous days. They had their role to play: bringing their experience and authority, as full-time union officials, to bear in negotiations with the companies. The employees had their role to play: refusing to work. In the case of the JBA employees, this was, as I have found, at the direction of Mr Cuddy, but it would be naïve not to appreciate that they did so in the realistic expectation that their action would strengthen the hands of the organisers and the HSRs in their dealings with the employers. For their parts, it is readily to be inferred that the organisers well knew that the circumstances prevailing on the site – where no work was being done – dealt them a stronger hand in their negotiations with the companies than they would have held had work been proceeding normally. They intended that this be so.

80    His Honour also considered the other question arising under the test adumbrated in Yorke v Lucas, namely whether the relevant officials’ participation was based upon knowledge of the essential elements of the employees’ contraventions. His Honour found that it was, and that the officials knew all of the essential elements of the industrial action which was in fact taken on that day (at [156]-[157]).

81    In the case before me Mr Ingham’s evidence was that:

    He came on to the Project Site for purposes associated with fund raising for an injured Union member and called a meeting during a break to address the workers in respect of that fundraising.

    As soon as that issue was dealt with, workers began to raise, from the floor of the meeting, issues in relation to safety at the Project Site.

    The workers at the meeting reached the conclusion that they would withdraw their labour for the balance of the day because they did not feel that it was safe to keep working.

    Neither he nor Mr Myles encouraged the workers to take that course.

    When he is on a site, he is interested in hearing any issues that workers want to raise with him, however he did not consider it his place to micromanage issues on a site which the local Union organisers and delegates should endeavour to resolve.

    Given his role in the union, and his concern that there were many people agitated, he sought to calm the meeting and seek more information about what had been done to resolve these issues prior to the meeting.

82    In respect of the conduct of the meeting insofar as concerned the decision of the workers to stop work, Mr Ingham’s evidence during the hearing was as follows:

Yes. Now, you’ve mentioned a – a vote being taken by the workers?---Yes.

What was the motion that was put?---That the workers withdraw their labour and return to work the following day.

And who put the motion?---I don’t remember exactly. It came from the floor. One of the workers.

And after the motion was put, what happened?---It was seconded, voted on.

Now, in the earlier vote that you told the court about, you played a role of, in effect, after the motion was put, asking for a show of hands, etcetera. You played a similar role, did you, in respect of this vote?---I – I don’t remember this one - - -

Yes?--- - - - specifically.

Yes?---Because, again, it’s not my role in the union to resolve the specific site issues, but I do make a point of making sure that people have an opportunity to – to contribute - - -

Yes?--- - - - and have their say.

Yes. So you may well have, after the motion was put, are you saying, asked for a seconder?---I don’t think so. I don’t think that was the role I played in this vote on the day.

And I think you said in respect of the first vote that you asked – that you also asked for comments for and against?---The first – yes, with the Mitchell Banthy donation, yes.

Is that – that’s the course that you normally follow in respect of votes, is it?---Ordinarily, yes.

Yes. That’s the course that you followed in respect of this vote being taken about stopping work?---Well, like I just said to you, my role in that part of the meeting was a different role. And I don’t – I don’t remember calling for seconders or whether – whether it was me or whether it was somebody else that done that, one of the delegates. I’m not sure how that played out.

Mr Myles, was he – did he say anything to them during the course of the vote process?---I don’t remember specifically. It would have been similar theme to what I said about someone making an allegation of unlawful industrial action.

So apart from you – it sounds to me – and I’m not being rude to you, but – or trying to be rude to you at least – but your comment that you made to them in respect of not being paid, you made that comment because that’s your view of what employers always do when they – when they go out, they don’t pay them. Whether it’s lawful or not, they don’t pay them?---Yes, often they don’t, yes. I don’t agree with that view.

No. Okay. Yes?---But that’s what happens.

Yes?---So, you know, I’m going to - - -

So that was – again, I’m not trying to be rude, but that was – that would be a pretty standard comment you would make in situations such as this to workers?---Ordinarily, yes.

Yes. Yes. You certainly weren’t there saying, “Look, whatever you do, don’t go – don’t go on strike today. You’ve got to stay at work and keep working”. You weren’t doing that, were you?---Well, if workers don’t feel safe, I can’t force them to stay there.

Now, apart from the comments you made in respect of the not being paid, you didn’t say anything else to them, from what you’ve said, that could be taken to be an attempt to discourage them from leaving?---Only that, yes, there would be an allegation it was unlawful and - - -

Yes?---And you won’t get paid.

Yes. Yes?---I don’t know what else you can say, apart from that.

Well, the safety issues had been raised. You didn’t say to them, from what you’ve said to the court, that they should leave it for you, that you would go and talk to Watpac about the safety issues?---No.

No. You didn’t suggest that Mr Myles should go and talk to Watpac about the safety issues?---No.

No. You didn’t suggest that the Safety Committee ought to go off and raise these issues with Watpac straight away?---Well, I think that’s ultimately what happened. That the committee did hang around after – after the meeting and attempt to resolve things with Watpac.

But that wasn’t at your suggestion, though, was it?---I don’t remember, to be honest, but I know that’s ultimately what happened. So whether I suggested it or endorsed it, if it came from the floor, it’s a sensible course of action to try and resolve the issues.

So it’s the case, is it, that once you had heard their – what they said were their concerns about stopping work, you supported the stoppage?---I didn’t.

Did you tell them that you did?---That I did support it?

Yes?---No.

Now, after this vote has occurred, and the vote is carried, what happened next?---After the vote is carried?

Yes?---I – I left the site, the workers did and I understand the Safety Committee had their discussions.

After the meeting, you met again with Mr Ross, didn’t you?---I think so, yes.

Yes. And I suggest that that meeting arose because Mr Ross came up to you and Mr Myles and Geelan and Baker?---Again, I think so. I think that’s what happened. I can’t say for sure.

And - - -?---Four years ago.

(transcript pp 199-201)

83    Mr Myles gave evidence elaborating on the meeting. In summary, this evidence included:

    After issues had been raised by the workers, Mr Ingham told the workers words to the effect: “Well boys, we just can’t magically fix it for you. You have to raise the issue if you want to get it fixed.”

    Both he and Mr Ingham told the workers that they would not be paid if they withheld their labour because it would be classified as unlawful industrial action, however the workers were undeterred and left the site.

    At no stage did either he or Mr Ingham encourage or organise the workers to leave the site

84    Mr Myles’ evidence during the hearing in respect of Mr Ingham’s role in the meeting of 26 June 2014 included the following:

Well, when you say to general a claim, was that motion then put to a vote?---Well, they all cheered and said “yeah”, and then Jade said, “Is that what you want to do?” And they all said “yes”.

And who said, “What do you want to do?”?---I think Jade said words maybe to that effect, but - - -

Right. This is to the workers, yes. And what did they then respond to that?---Well, they said – one of them said, “Yes, that’s what we want to do. We want to go home for the day”.

Right. And then what happened thereafter?---Jade said words to the effect that, “You won’t be paid if you do this”. Something along those lines.

(transcript p 220 lln 12-24)

85    In the case before me the ABCC submits that

    Mr Ingham, taken with his conduct overall on 26 June 2014, by conducting the vote that led to the industrial action, was involved in the industrial action;

    Mr Ingham considered the conduct to be unlawful, otherwise he would not have made the statement he made to the workers in respect of loss of pay, which statement ought to be considered to be nothing more than a statement of the inevitable as opposed to any attempt to prevent the workers from leaving.

86    I do not agree that Mr Ingham was involved in the industrial action of the workers on 26 June 2014.

87    For similar reasons to those I have already given in relation to Mr Ingham not organising the industrial action on 26 June 2014 at the Project Site, I am satisfied that Mr Ingham did not counsel or procured, induce, or conspire with others to bring about the industrial action which took place. Indeed, the evidence before the Court was that Mr Ingham counselled against the industrial action which took place.

88    Could it be said that he had aided and abetted, or was otherwise knowingly concerned in or party to the contravention? I am not satisfied that this was the case. The events which occurred on 26 June 2014 at the Project Site are distinguishable from those in Huddy or the Australian Paper Case, and are much more akin to in Clarke. At its highest, the ABCC’s case is that Mr Ingham was involved in the contravention because he had called the meeting at the time the workers decided to stop work (albeit, on the evidence, for a different reason), he had warned of the ramifications of a stop work, and he may have been involved in the process where a vote was taken (although the evidence in this respect is equivocal, with Mr Ingham unable to recall if he involved). However even taken together this conduct cannot be described as aiding and abetting the contravention, nor am I persuaded that it can be considered to be “knowingly concerned”. My view in this respect is strengthened when the conduct is examined against the background of Mr Ingham’s purpose for being at the Project Site that day, and Mr Ingham’s evidence concerning the Union’s policy of endeavouring to empower local Safety Committees. This evidence is consistent with Mr Myles’ evidence that, at the meeting, Mr Ingham suggested that if the workers had safety issues they needed to raise them.

89    As was explained by the Full Court in Clarke, accessorial liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators. It cannot be said that the conduct of Mr Ingham – or through him the Union – on 26 June 2014 was such as to associate with the contravening conduct of the members.

Right of entry contraventions

(a)    Was Mr Ingham exercising or seeking to exercise a right conferred by Pt 3-4?

90    The ABCC contends that the question before the Court is whether or not Mr Ingham entered the Project Site either:

(a)    For the purpose of inquiring into a suspected contravention of the WHS Act that relates to, or affects, a relevant worker (s 117 WHS Act); or

(b)    To consult on work health and safety matters with, and provide advice on those matters to, one or more relevant workers who wish to participate in the discussions (s 121(1) WHS Act).

91    The ABCC further contends that Mr Ingham did have that purpose, and referred to his initial discussion with Mr Ross.

92    The respondents claim that Mr Ingham was not seeking to exercise a right conferred by Pt 3-4 of the FW Act.

93    Section 478 sets out a Guide to Pt 3-4, in particular:

This Part is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act and under State or Territory OHS laws.

Division 2 allows permit holders to enter premises to investigate suspected contraventions of this Act and fair work instruments. The Division makes special provision in relation to TCF award workers. Division 2 also allows permit holders to enter premises to hold discussions with certain employees and TCF award workers. In exercising rights under Division 2, permit holders must comply with the requirements set out in the Division.

Division 3 sets out requirements for exercising rights under State or Territory OHS laws.

Division 4 prohibits certain action in relation to the operation of this Part.

Division 5 sets out powers of the FWC in relation to the operation of this Part.

Division 6 deals with entry permits, entry notices and certificates.

Division 7 deals with accommodation and transport arrangements in remote areas.

94    Section 487 provides, inter alia, that a permit holder must, before entering premises under any of Subdivs A, AA or B of Div 2 of Pt 3-4 of the FW Act, give the appropriate entry notices for entry. Subdivisions A and AA of Pt 3-4 relate to entries to investigate suspected contraventions of the FW Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation or other defined workers. Subdivision B of Pt 3-4 relates to entries on to premises for the purposes of holding discussions with one or more employees or textile, clothing and footwear (TCF) award workers.

95    Division 3 of Pt 3-4 of the FW Act deals with officials of organisations exercise State or Territory OHS rights, including the requirement that such officials be permit holders, and circumstances in which they may enter premises.

96    Section 500 is in Div 4 of Pt 3-4 and provides:

500    Permit holder must not hinder or obstruct

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.

Note 1:    This section is a civil remedy provision (see Part 4 1).

Note 2:    A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.

Note 3:    A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).

97    Recently in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88; (2018) 357 ALR 510 the Full Court considered the proper construction of s 500. In that case the ABCC alleged that two union officials had entered a site, failed to give notice of their proposed entry in accordance with s 487 of the FW Act, had failed, on request, to produce their entry permits as required by s 489, and had had discussions with workers on the relevant site. The ABCC alleged that these failures constituted acting in an “improper manner” in contravention of s 500 of the FW Act and further that one of the officials had contravened s 500 by making a threat to a site manager.

98    The primary Judge found that the union officials had entered the site for the purpose of having discussions with the workers, which was a purpose comprehended by s 484 of the FW Act. As Tracey J further observed:

35.    As a result of uncontroversial findings the issues which ultimately fell to be determined by the primary judge, under s 500, were:

•    first, whether the officials, as permit holders, were “exercising, or seeking to exercise, rights in accordance with [Part 3-4 of the FW Act]” when they undertook the various entries (see [56]-[73], [74]-[102] and [103]-[126]); and

•    secondly, whether the conduct of the two officials, on entering the sites, involved them in acting in an “improper manner” (see [127]-[146]).

36.    In dealing with the first issue the primary judge held that no contravention of s 500 had occurred because neither Mr MacDonald nor Mr Long was, at relevant times, “exercising, or seeking to exercise, rights in accordance with [Part 3-4]” of the FW Act. That was because he considered (at [72]) that an official “may only be said to be ‘exercising’ rights under Part 3-4 when doing so in compliance with the requirements made by that Part.” Messrs MacDonald and Long had deliberately failed to give notice of their proposed entry on each occasion ([107]). The giving of notice, under s 487, was a precondition to the conferral of any right of entry for the purposes of s 484 (at [68]). Absent such notice any right conferred on the officials by s 484 was neither held nor “put into action practice or use” at relevant times (at [70]).

37.    As to the second issue his Honour found (with some reservations arising from the Commissioner’s pleaded case) that the failure of Messrs MacDonald and Long, on each occasion, to give notice of their attendance at the sites and to produce their entry permits upon request constituted acting in an “improper manner” for the purposes of s 500 (at [146]).

99    The ABCC appealed the primary decision, and its appeal was allowed. In particular Tracey J observed:

57.    The rights of entry, provided for in Division 2 of Part 3-4, are conferred on permit holders. Those rights of entry continue to exist for as long as the permit remains valid. The right, in each case, must be exercised in accordance with the requirements prescribed by Subdivision C but they continue to exist. The consequence of a failure to comply with a provision of Subdivision C which is applicable is that prescribed by s 486 of the Act. It is not a termination of the right.

58.    The requirements imposed on permit holders by Subdivision C assume the existence and exercise of rights conferred by provisions of earlier subdivisions. This includes the right of entry provided for in s 484. The Subdivision C provisions operate as qualifications on the existing right of entry or the manner of exercise of a pre-existing right. As s 486 provides: a contravention of Subdivision C by a permit holder in exercising such rights has the consequence that the permit holder is “not authorise[d] ... to enter or remain on premises, or exercise any other right ...” (emphasis added).

…

60.    Section 487 requires that, “before entering” the premises, the permit holder must give an entry notice. The permit holder must give the occupier of the premises an entry notice during working hours at least 24 hours before entry is to take place. This requirement is not, as the primary judge found (at [86]), “a precondition to the conferral of the right of entry” provided for under s 484. The proposed entry, when effected, has the potential to cause some disruption to normal operations. Whilst discussions with workers may only take place during meal times or other breaks (s 490(2)) arrangements must be made as to a suitable venue agreed with the occupier (s 492(1)) and these processes will often take managers away from their normal duties. The giving of notice ensures that the permit holder’s visit can be planned for and inconvenience to site management minimised.

61.    Other provisions of Part 3-4 suggest that the word “exercising”, as used in s 500, is intended to be read more broadly than the construction adopted by the primary judge.

…

64.    The construction which I prefer gives effect to the balancing of competing rights contemplated by s 480 of the FW Act. One of the rights, specifically mentioned in s 480(a), is “the right of organisations to ... hold discussions with potential members”. Rights of entry are given by provisions such as s 484 to further the rights identified in s 480(a) and their exercise is then regulated in order to avoid undue inconvenience to the social right of occupiers of premises to go about their business in the conduct of their operations (s 480(c)). The balancing regime, with which s 480 is concerned, would be undermined if a relevant right was found not to arise (and so not be regulated by the Act) because a permit holder made a deliberate decision not to satisfy one of the requirements imposed by Subdivision C. Such a construction would have the consequence that a permit holder, who wishes to enter premises for a purpose provided by the Part and for which the permit was given to him or her, would be constrained by the requirements of Part 3-4 only if he or she chose to obey the FW Act. If he or she chooses not to, the occupier would be left to protect itself by the law of civil and criminal trespass.

(Emphasis added.)

100    Insofar as concerns the phrase “seeking to exercise, rights in accordance with this Part”, Tracey J examined the earlier Full Court decision in Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64; (2016) 242 FCR 46 but distinguished that decision from the case before him. In Bragdon the relevant union officials, while holding permits under the FW Act, did not hold “WHS permits” under the State legislation. The Full Court in Bragdon held that the union officials had not contravened s 500, because neither union official was exercising any State or Territory OHS right and nor were they “seeking to exercise” any such right. They did not have such a right and they did not proceed under any mistaken belief about their rights. As his Honour observed:

94    … In the present case the facts were materially different: Messrs MacDonald and Long were both permit holders and they entered, on each occasion, for the avowed purpose of holding discussions with employees on the site, the very purpose to which s 484 is directed, as they no doubt appreciated.

101    Tracey J also agreed with comments of the Full Court in Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77; (2017) 251 FCR 528 that the decision of the Full Court in Bragdon:

… does not support a conclusion that a ‘permit holder’ who fails to give a ‘notice for the entry’ is not ‘exercising, or seeking to exercise’ the right conferred by s 484 or a conclusion that entry in such circumstances is not ‘in accordance with’ Pt 3-4.” (at 535 [31])

102    Finally, Tracey J referred at [97] to an earlier decision of White J where union officials had contravened s 500:

Depending on the circumstances of a particular case it may be open to the Court to find (as the primary judge contemplated in the present case at [79] and [84]) that a permit holder may intend to exercise a right under Division 2 of Part 3-4 without complying with the requirements prescribed by Subdivision C of that Division. Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 was such a case. Having found (at [84]) that the relevant respondents who held permits issued under s 512 of the FW Act had “assert[ed] an entitlement to enter [the premises] for the s 484 purpose without having to give the notice of entry required by s 487”, White J went on to hold that those respondents had contravened s 500 of the FW Act by acting in an improper manner while seeking to exercise rights in accordance with Part 3-4 in that they had failed to provide a notice of entry as required by s 487, had remained on the site for almost two hours and had distracted workers. He made declarations to this effect: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy and Union [2016] FCA 413 at ii, Declarations 3 and 5.

103    In his Honour’s judgment in that case, White J at [180] observed that the word “seeking” in s 500 should be given its ordinary meaning of “trying” or “attempting” to do or achieve something, and further at [183] that the phrase “in accordance with this Part” in s 500 should be construed:

… as intended to operate with respect to two kinds of rights: those conferred by Pt 3-4 itself and those which, although not conferred by Pt 3-4, have their exercise regulated by the Part (State or Territory OHS rights). It is appropriate to construe “in accordance with this Part” as encompassing both these circumstances.

104    Further, his Honour rejected the construction for which the respondents in that case contended, which construction would mean that the s 500 prohibition would apply to a permit holder seeking to exercise rights in conformity with Pt 3-4 but not to a permit holder seeking to exercise the same rights but without conforming in whole or in part with the requirements of the Part (at [185]). His Honour further observed that the respondents’ construction would mean that the s 500 prohibition would apply in relation to s 484 only when permit holders had two different mental states, namely an intention to enter premises for the s 484 purpose; and the intention in doing so to conform with the requirements of Pt 3-4 – and his Honour rejected this (at [186]).

105    I have examined in detail the decision of the Full Court in Laverton North because the ABCC in particular made detailed submissions concerning the primary decision in that case. However in my view it is not necessary for me to go further into these principles in relation to the case against Mr Ingham. This is because the facts of the case involving Mr Ingham were materially distinguishable from those in Laverton North. In this case the evidence before me supports a finding that Mr Ingham did not, under any construction of the legislation, exercise, or seek to exercise, rights in conformity with Pt 3-4, be it by way of investigation of suspected contraventions of the Act, fair work agreements, or State or Territory OHS laws (in particular ss 117 or 121(1) of the WHS Act).

106    Further, I am not satisfied that Mr Ingham entered the Project Site to “hold discussions”, with potential or existing members of the Union. I note the broad definition of “discussions” in s 484 attributed by White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 at [72]:

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

(See also comments of Tracey J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080 at [54].)

107    In this case however, I am satisfied that Mr Ingham simply sought to speak to the workers in relation to raising funds for the injured union member. This conduct did not constitute “holding discussions” within the meaning of s 484 FW Act.

(b)    When Mr Ingham was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?

108    As I have found that Mr Ingham was not exercising, or seeking to exercise, rights in accordance with Pt 3-4, it is unnecessary for me to consider whether he was intentionally hindering or obstructing any person or otherwise acting in an improper manner.

Conclusion

109    In relation to the issues the parties identify as requiring determination concerning events of 26 June 2014:

Organising industrial action

(a)    Did Mr Ingham organise the stoppage within the meaning of s 417(1)?

    No.

(b)    In the event that Mr Ingham did not organise the stoppage, did he involve himself within the meaning of s 550?

    No.

Right of entry contraventions

(a)    Was Mr Ingham exercising or seeking to exercise a right conferred by Pt 3-4?

    No.

(b)    When Mr Ingham was at the Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?

    No.

2.    27 June 2014

Organising industrial action

(a)    Who bears the legal onus in respect of disproving or proving that circumstances identified in s 19(2) applies?

110    As I noted earlier in this judgment, s 19(2) of the FW Act identifies actions by employees and employers which are not “industrial action” within the meaning of s 19(1), in particular:

(a)    action by employees that is authorised or agreed to by the employer of the employees;

  (b)     …

  (c)     action by an employee if:

(i)    the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii)    the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

111    It is not in dispute that workers on the Project Site failed or refused to perform work on 27 June 2014. In the circumstances the ABCC accepts that it bears the legal onus in establishing that that conduct constituted “industrial action” within the meaning of s 19(1). In my view the refusal by the employees to perform work prima facie appeared to be a ban, limitation or restriction on the performance of work by employees within the meaning of s 19(1)(b), or potentially a refusal to perform any work at all for a limited time by employees who attended for work within the meaning of s 19(1)(c) of the FW Act.

112    However a preliminary question arises as to whether that conduct of the workers fell within s 19(2)(a) or (c) of the FW Act because it was authorised or agreed to by the employer of the employees. The ABCC submits that the respondents bear the legal onus in respect of whether conduct is excluded from s 19(1) by operation of s 19(2). The respondents submit that the legal onus is on the ABCC to disprove that circumstances identified in s 19(2) apply.

113    Both parties refer to the decision of the High Court in Vines v Djordjevitch (1955) 91 CLR 512.

114    Vines v Djordjevitch concerned the interpretation of s 47(1) of the Motor Car Act 1951 (Vic) which relevantly provided:

Where the death of or bodily injury to any person is caused by or arises out of the use of a motor car but the identity of the motor car cannot be established any person who could have obtained a judgment against the driver of the motor car in respect of such death or bodily injury may obtain against a nominal defendant to be named by the Minister the judgment which in the circumstances he could have obtained against the driver of the motor car: Provided that no such judgment may be obtained unless such person as soon as possible after he knew that the identity of the motor car could not be established gave to the Minister notice of intention to make the claim and a short statement of the grounds thereof.

115    In summary, in Vines the plaintiff was knocked down by a motor vehicle as she was attempting to cross a street in Ballarat and was rendered unconscious. Her evidence was that she heard the noise of an engine of what she understood to be a motor cycle, and then remembered no more until she regained consciousness in hospital. The motor vehicle which struck her was never identified. The plaintiff was in hospital for some time, and later an invalid at home for a period of up to 10 weeks. She commenced proceedings against a nominal defendant under the Motor Car Act.

116    The appeal turned on the terms of the proviso in s 47. The nominal defendant objected at the trial that the plaintiff had not complied with the proviso, because although the accident occurred in June 1953 it was not until 1 December 1953 that a notice was given by the plaintiff or on her behalf. The nominal defendant claimed that this could not be “as soon as possible” after the plaintiff knew that the identity of the motor vehicle could not be established. The plaintiff relied upon the circumstances of the case as showing that she did not know that she could not establish the identity of the vehicle at such a time as to make it true that the notice was not given as soon as possible and accordingly she had complied with the proviso. The issue thus raised was submitted to the jury, and the jury found for the plaintiff.

117    In its joint judgment the Court noted that the first question in the appeal was whether the burden of proving facts amounting to a compliance with the proviso rested upon a plaintiff in an action brought under s 47(1) against a nominal defendant. Their Honours continued at 519-521:

It is said that the form of the sub-section places the burden of disproof on the defendant. For the requirement of prompt notice after the injured party becomes aware of the impossibility of identifying the car inflicting the injuries is expressed in the form of a proviso. “There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not " – per Abbott J. in Steel v. Smith. The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter…

The fact that in s. 47 (1) the requirement of notice takes the form of a proviso gives some support for the claim that the plaintiff need not affirmatively establish compliance and that the burden of proving non-compliance is upon the defendant. But the operative words express a negative co-extensive with the affirmative imposition of liability in the main provision. In terms the proviso makes it incumbent upon everybody claiming under the main provision to give the notice and to do so as soon as possible after knowledge of the impossibility of establishing the identity of the car responsible for his injury. It is expressed as a statement of a further requirement to be fulfilled by all before the main provision can be availed of. For the plaintiff, however, it is said that though the requirement is expressed as applicable to all coming within the main provision, it cannot so intend. For there are classes of people who could not be expected to comply with it, e.g. children of tender years or other persons rendered incapable of action or of knowledge by their injuries or by their mental or bodily condition. It is pointed out too that the remedy given by the main provision of s. 47 (1) is not confined to the injured person. If as a result of the death or injury of the victim of an accident, any other person becomes entitled to actionable rights against the driver of the unidentified car he may sue the nominal defendant under s. 47 (1)… But that is a matter that does not arise in this case and one about which no opinion need be expressed. There is, however, no reason to doubt that other intending plaintiffs may obtain such a knowledge and must then give notice.

…

The substance of the proviso and its general tenor show that it means to impose a condition precedent to the cause of action. Accordingly the burden of proof lies on· the plaintiff.

(Footnotes omitted; emphasis added.)

118    In Banque Commerciale S.A, en Liquidation v. Akhil Holdings Ltd. (1990) 169 CLR 279 the Court considered s 69(1) of the Trustee Act 1925 (NSW) which relevantly provided that action against the Bank as trustee was statute-barred after six years unless, in terms of the proviso to the section, there was a “fraudulent breach of trust to which the trustee was party or privy”. It was not in issue that, as appeared from the statement of claim, the breaches of trust of which Akhil complained against the Bank occurred more than six years before action was commenced. The Bank argued that the finding of fraud against it was not open on the pleadings and that, but for that finding, its plea that the action was statute-barred must result in judgment in its favour. On behalf of Akhil it was argued that the Bank was not entitled to rely on its plea in the Court of Appeal and, if it was, the Court of Appeal was nonetheless entitled to make the finding that the Bank was party to a fraudulent breach of trust. In the High Court, Akhil contended that the Bank could only rely on a defence that the action was statute barred if it established that it was not party to a fraudulent breach of trust. Mason CJ and Gaudron J said:

13.    The argument that the Bank was not entitled to rely on its defence unless it established that it had not been fraudulent is based upon the proposition that the proviso to s.69(1) of the Act is, in substance, an exception which must be negatived before a trustee can rely on a limitation defence. In Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, at p 519, the Court noted the technical distinction between a proviso and an exception and observed that "(t)he distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations". The Court added that "whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies".

14.    The substance of the proviso to s.69(1) of the Act is to allow a limitation defence to be defeated. This is in itself a consideration of substance for placing the onus of proof on the party seeking to defeat the defence. See Vines v. Djordjevitch , at pp 519-520, and the cases there cited. It is also a significant matter of substance that it is fraud that may defeat the defence.

(Emphasis added; see also Brennan and Toohey JJ concurring on this point.)

119    In Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 McHugh J observed:

26.    When a statute imposes an obligation which is the subject of a qualification, exception or proviso, the burden of proof concerning that qualification, exception or proviso depends on whether it is part of the total statement of the obligation. If it is, the onus rests on the party alleging a breach of the obligation. If, however, the qualification, exception or proviso provides an excuse or justification for not complying with the obligation, the onus of proof lies on the party alleging that he falls within the qualification, excuse or proviso: Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, at p 519. Whatever form the statute takes, the question has to be determined as one of substance: Vines, at p 519; Banque Commerciale S.A, en Liquidation v. Akhil Holdings Ltd. [1990] HCA 11; (1990) 169 CLR 279, at p 285.

120    Referable to the principles explained in Vines, in summary, the ABCC argued:

    Sections 19(2)(a) and (c) are special grounds of excuse that are dependent for their application upon additional facts to those required to satisfy s 19(1). These additional facts are uniquely within the knowledge of the party seeking to rely on the excuse and it is for them to establish their existence. Accordingly, the ABCC does not bear the onus of proving that they do not apply.

    To the extent that the respondents rely on Director of the Fair Work Building Industry Inspectorate v McCullough [2016] FCA 1291 for the contrary proposition, that reliance is misconceived.

    The general position is that where a legislative provision states that liability is subject to the existence of a factual state of affairs, then the party seeking to prove liability must also prove that the required facts exist.

    Relevant authorities are Always Resource Holdings Pty Ltd v Samgris Resources Pty Ltd [2017] QSC 74 at [378] and Asia Pacific Joint Mining Pty Ltd v Always Resource Holdings Pty Ltd [2018] QCA 48; (2018) 3 Qd R 520 at [34] and [43].

121    The respondents submitted in summary:

    Section 19(2) is not a proviso. Section 19(2) does not provide that it is a defence or a ground of exculpation to an action alleging industrial action if the party can prove one of the matters set out in the sub-paragraphs, nor does it point to additional facts which have to be established to exclude liability. Rather, properly understood, s 19(2) expressly identifies certain matters which do not answer the description of industrial action. If one of those matters applies, then the action does not answer the description of industrial action. It is simply one of the factual matters which has to be established in order to bring the alleged action within the definition of industrial action. Sections 19(1) and (2) are a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability.

    The heading of the provision “Exceptions to the meaning of industrial action” makes it clear that subs (2) is carving out something from the definition, that is, the legislature is delineating the ground which is covered, not establishing a general principle and stating that in certain cases it does not apply. This makes sense in that the definition of industrial action is so broadly cast that it would include an employee who ceased work when his or her employer gave permission to go home early. Such a nonsensical position is avoided by the exception.

    The ABCC’s submissions that the decision in McCullough, is not authority for the proposition that the applicant bears the onus in respect of s 19(2) should be rejected.

    The ABCC’s reliance on the decisions in Always Resource and Asia Pacific is misplaced.

122    In McCullough a union organised a rally at a construction site, addressed and attended by union officials. Workers at other construction site failed to attend for work that day. The Director of the Fair Work Building Industry Inspectorate sought remedies including a declaration of contravention of s 417 of the FW Act. An issue in the case concerned the burden of proof in respect of s 19(2)(a) of the FW Act – the union and officials contended that s 19(2)(a) placed the burden of disproving authorisation or agreement on the party alleging the industrial action, and that such a construction was supported by the text of s 19 and the legislative history of the provision. In relation to this point Barker J observed:

99.    In my view, whether the Director has proved an employer of the employees has “authorised or agreed to” relevant action for the purposes of s 19 of the Act, is a question of fact, having regard to all the evidence, in each case. Plainly enough the authorisation or agreement does not necessarily have to be in writing. Nor does it need to be given at any prescribed time before the action is taken. However, as a matter of common sense construction of the material words, the action must have been authorised or agreed to by the employer before the action was taken. I reject a construction that suggests an employer can retrospectively authorise or agree to the action.

100    It may well be that, in the particular circumstances of a case, the fact that customarily an employer allows employees to take action at a certain time or in certain circumstances may be relevant to the question of authorisation or agreement. Similarly, in the circumstances of a given case, the Court may find that an employer relevantly authorised or agreed to the action complained of despite the absence of express words of authorisation or agreement being proven in evidence.

101.    In the circumstances of this case, however, there is no basis for suggesting that Mr Used, on behalf of CASC, either authorised or agreed to the action by CASC’s relevant employees which is complained of in this proceeding; he did not.

102.    The most that can be said is that Mr Used, by his evidence, indicated that he suffered what CASC’s workers were apparently likely to do – that is to say, not attend for work as rostered on 18 July 2013 – because this sort of thing had happened in the past and he considered he had no “control” over it. At that point, according to his evidence, Mr Used was satisfied with the progress of the work CASC was undertaking. I construe his evidence to mean that he, in effect, had no alternative but to suffer whatever consequences flowed from the relevant CASC employees not attending work as rostered on 18 July 2013. He understood that their pay would be docked for failing to attend for work – as it was. The fact that the company record showed “LWOP” (leave without pay) on 18 July 2013 in respect of the relevant employees is neither here nor there. It was simply an administrative entry, not inferring or indicating that the company had authorised or approved their nonattendance at work as rostered on 18 July 2013.

103.    The authorisation point therefore raised by these relevant CASC respondents fails on the facts.

104.    Having regard to the evidence led by the Director, the Director has proved that CASC, the employer, did not authorise or agree to the action taken by its employees which is complained of by the Director in this proceeding

123    In my view for the purposes of s 417 the onus lies with the ABCC to establish that the workers engaged in industrial action within the meaning of s 19(1), however the onus shifts to the respondents to establish that conduct otherwise falling within s 19(1) is excluded by s 19(2) of the FW Act.

124    This is because s 19(1) defines “industrial action” as including action of the kinds set out in subs (1)(a)-(d), but s 19(2) is in the nature of a qualification identifying exceptions to action which would otherwise be “industrial action”. In short – although s 19(2) is not drafted specifically in terms of a “defence”, read with s 417 it operates as a proviso to a claim of industrial action pursuant to that section. Properly construed, and contrary to the submissions of the respondents, the provisions of s 19(2) do not identify factual matters which must be established in order to bring the alleged action within the broader definition of industrial action. Where an applicant claims that there has been a breach of s 417 because of the organisation of industrial action, it is incumbent on that applicant to demonstrate action which falls within the definition of s 19(1) – not to prove what the action is “not”, within the definition of s 19(2). As the ABCC correctly contended, ss 19(2)(a) and (c) created special grounds of excuse that are dependent for their application upon additional facts to those required to satisfy s 19(1), which special facts are uniquely within the knowledge of the party seeking to rely on the excuse. It is for that party to establish the existence of those special facts.

125    Further, while Barker J in McCullough accepted at [103] that the Director had “proven” that the employer did not authorise or agree to the action taken by the workers, I am not satisfied that his Honour decided that the onus of proof in this respect lay with the Director. In particular, as correctly submitted by the ABCC, his Honour did not specifically consider and decide the issue of onus in respect of s 19(2) of the FW Act, nor does it appear that there were submissions to the contrary before the Court.

126    It follows that, in my view, the respondents bear the legal onus in respect of proving that circumstances identified in s 19(2) of the FW Act apply.

(b)    Was the stoppage industrial action within the meaning of s 19?

(i)    Was the stoppage authorised or agreed to by the employers by virtue of cl 3.4.1 of the Project Safety Management Plan?

127    The Project Safety Management Plan (PSMP) is a document issued by Watpac, dated 1 May 2013 and referable to the project at 174 Ann Street Brisbane. It was received by way of subpoena and marked as exhibit 22(R) in the proceeding. The Preface to the PSMP states:

1.    Preface

Watpac has been appointed Principal Contractor on behalf of the client Daishio for the 180 Brisbane Project.

Peter Luppi has been appointed as the senior project manager by Watpac, and as such is the senior manager allocated who has overall OHS responsibility for the 180 Brisbane project.

This Project Safety Management Plan has been developed in consultation with the project team and authorised by Peter Luppi.

The Project Safety Management Plan has also been reviewed and signed off for implementation by the former State Manager Mark Spry, Operations Manager Phil Corcoran, OHS Manager Brian Lewis.

This plan provides specific information regarding the management of project-related works and attempts to ensure that a uniform approach to health and safety is adopted.

A copy of the plan shall be readily available and subcontractors and clients associated with the project will be made aware of the location of the plan, and that it is available for inspection.

This plan may be amended where deficiencies are identified, changes occur in the Watpac National Safety Management System or project works change such that the information contained in the plan is no longer accurate or valid. Those amendments will be authorised by the Project Manager.

All parties affected by any alterations shall be notified.

128    Clause 3 of the PSMP sets out details of accountability and responsibilities including in relation to occupational health and safety. Relevantly it provides:

3.    Management Commitment and Accountability

3.1.    Occupational Health and Safety Policy

We want to ensure that everyone who leaves a work site does so in the same manner in which they arrived – safe and well.

The Watpac Limited OHS Policy will be displayed on the notice board and is contained in Appendix B of the PSMP.

3.2.    Resources and Responsibilities

3.2.1.    Resources

The OHS Organisation Structure for the project is described below:

[An organisation chart appears]

3.3.    Responsibilities

The OHS Organisation Structure (Section 2.2.1) and Responsibility Statements (Refer Appendix C) highlight the key personnel who will be responsible for managing this project. Responsibility Statements are inclusive for the following positions for this Watpac project:

•    Operations Manager

•    Project Manager

•    Site Manager

•    Site Foreman

•    Project Safety Coordinator

•    Project Safety Advisor

•    Contract Administrator

3.4.    Accountability

OHS Accountability refers to the method(s) by which fulfilment of OHS responsibility can be assessed. OHS accountability mechanisms which are utilised at Watpac to verify the implementation of OHS responsibilities include:

•    Day-to-day management interaction through the line management structure;

•    Completion of workplace inspections by senior managers and involvement of senior management in OHS related activities such as OHS committee, attendance at training courses, etc; and

•    Demonstrated leadership by senior managers to take action to correct unsafe situations or instances of poor behaviour by other management/supervision.

Specific Watpac procedures for holding managers and supervisors accountable for the discharging of OHS responsibilities are:

•    Senior managers (e.g. State Manager, Operations Manager) monitoring performance of direct reports/individuals against established KPls;

•    Management meetings at which OHS is an agenda item;

•    Managers monitoring corrective actions to ensure implementation and continuous improvement of performance of individuals; and

•    Annual performance reviews of all Watpac employees (including short term staff).

Subcontractors will be held accountable through application of the subcontractor management procedure (refer to Section 9 of this plan).

Workers will be held accountable through day-to-day supervision and monitoring of performance by their Site Foreman and/or Superintendent.

Resources and processes will be reviewed and verified by senior management to ensure that they effectively manage Watpac health and safety risks.

Review and verification will be undertaken through the following:

•    Senior management (i.e. National General Manager, Operations Manager, State Manager, OHS Manager, and Managing Director) (external to the project) shall regularly visit Watpac projects/sites and discuss OHS issues with site management, Watpac employees and where relevant other stakeholders (e.g. subcontractors) as per S01-03 Performance Management.

3.4.1.    OHS Authority

OHS Authority is defined as being given the power to take action to achieve one's responsibilities. It is important to define authority to enable persons to take action without the fear of recrimination. This includes but is not limited to:

All workers have:

•    Authority to refuse to undertake a task that they have not been adequately trained and instructed in;

•    Authority to stop work in the event that they feel that controls are insufficient to protect them from being injured; and

•    Authority to discuss OHS matters with OHS Committee members.

OHS Committee Members and Health and Safety Representatives:

•    Authority to undertake duties of OHS Committee during company time;

•    Authority to undertake inspections and investigations and recommend corrective action to management; and

•    Authority to stop work in the event that they feel that controls are insufficient to protect them from being injured.

Project Safety Advisor:

•    Authority to order a temporary stop to an unsafe work activity or situation, where a SWMS is not in place or has not been prepared and implemented in accordance with procedures.

•    Authority to carry out audits, inspections and investigations provided sufficient notice has been provided. In the case of audits seven (7) days' notice will be given; and

•    Authority to refuse plant from entering and/or being operated on a project, where the item of plant does not meet Watpac's minimum requirements for safe operation.

OHS Manager

•    Authority to order a temporary stop to an unsafe work activity or situation, where a SWMS is not in place or has not been prepared and implemented in accordance with procedures;

•    Authority to carry out audits, inspections and investigations provided sufficient notice has been provided; and

•    Authority to amend parts of this plan and/or procedures as necessary, in accordance with the project management procedure for document control.

3.5.    Performance Management

Watpac is the designated Principal Contractor for the development of the 180 Brisbane.

This plan has been developed by the project team assigned, in conjunction with external resources and workers in the spirit of consultative cooperation and consultation. This plan serves as a guide and statement of intent regarding the 180 Brisbane project's highest priority which is to ensure the health and safety of all who come into contact with the project.

This Project Safety Management Plan provides specific procedures and direction on how the project work is to achieve its health and safety policy objectives and comply with its statutory obligations. This Project Safety Management Plan has also been designed to ensure a uniform approach is adopted on site with regard to the management of subcontractors and the subsequent health and safety issues that shall be presented as part of the project works.

This plan is to be made available to all parties on the 180 Brisbane project, including subcontractors and clients for information regarding health and safety management and processes to be applied/implemented on the project. The provision of this plan to affected parties does not relieve them of their statutory responsibilities and it must be understood that, as such, they remain responsible to carry-out their works in accordance with the applicable WHS legislation.

It is the vision of Watpac to realise zero harm during the scope of works for this project.

Watpac manages its OHS responsibilities through proactively establishing and implementing lead indicators focussed on performance strategies designed to control/minimise incidents, loss and damage. Limited lag indicators are also maintained to benchmark our performance against general industry standards.

The projects targets and indicators are also reviewed by the OHS Manager on a regular basis and by the National OHS Steering Committee, for example on an annual basis.

Watpac’s OHS targets and indicators for the project are contained in the table on the following page.

These project targets and indicators are aligned with Watpac's corporate/management objectives, which include:

•    To provide workplaces free of occupational injury and illness;

•    Consulting with workers and other relevant parties to improve decision making on OHS issues;

•    Ensuring that OHS impacts and controls are considered at all stages of Wat pac's projects and activities;

•    Providing ongoing training and education to enable workers to uphold our standards of OHS in the workplace;

•    Ensuring OHS events are investigated and corrective and preventative actions identified and implemented; and

•    Monitoring and reviewing workplace activities for non-compliance and areas for improvement.

The project safety performance and targets (including accidents and near misses) is reviewed against the project objectives at each Site OHS Committee meeting. Where performance is trending below or has fallen below the objectives, the project management team will implement suitable corrective measures.

129    In particular, I note cl 3.4.1 which relevantly provides:

All workers have:

•    Authority to refuse to undertake a task that they have not been adequately trained and instructed in;

•    Authority to stop work in the event that they feel that controls are insufficient to protect them from being injured; and

•    Authority to discuss OHS matters with OHS Committee members.

(Emphasis added.)

130    The submission of the respondents on this point is simple – cl 3.4.1 of the PSMP contains express agreement or authorisation for employees to stop work in circumstances where they feel that the controls in place are not sufficient. The effect of this clause is that if employees stop work because they feel that the controls are not sufficient to protect them from risk, that stoppage is agreed or authorised by their employer, s 19(2)(a) of the FW Act is enlivened, and accordingly the action of the workers on 27 June 2014 was not “industrial action” within the meaning of s 19(1) of the FW Act.

131    The ABCC submits that cl 3.4.1 does not enliven s 19(2)(a) because it should be given a sensible construction such that it is applied, in summary:

    as contractually authorising stoppages in circumstances where s 19(2)(c) of the FW Act would be engaged; or

    only where the employee “reasonably” feels that controls are insufficient, taking into account the magnitude and proximity of the potential injury.

132    The ABCC submits further that the respondents have not discharged their burden of proof to establish that each employee who stopped work did so because they felt that controls were insufficient to protect them from being injured.

133    The ABCC presses this construction because:

    The PSMP has force by incorporation into a broader commercial contract, and must be so interpreted (Lord Diplock in Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 at 201, Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337).

    The PSMP takes force under a subcontractor agreement, entered by Watpac with each subcontractor as part of its overriding contract to construct the structure on the Project Site;

    Clause 27 of the overriding contract indicates that completion of works within agreed timeframes was a matter of great importance to the parties. Timeframes could only be extended within the context of that clause in certain situations prescribed by cll 27.2, 27.5 and 27.7, and in accordance with the process in cll 27.6 and 27.8.

    Section 19(2)(c) of the FW Act gives employees the right to stop work because of a reasonable concern of the employee about an imminent risk to his or her safety.

    If cl 3.4.1 is given a broad interpretation, Watpac could potentially have great difficulty in co-ordinating the subcontractors as required to complete construction, and could extend to situations where work ceased because an employee was being unreasonably cautious, or the employee “felt” unsafe notwithstanding an objectively safe work environment, or if employees differed about how safe they “felt”.

    An appropriate analogy is the decision in Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30; (2016) 92 NSWLR 639.

    Cl 3.4.1 does not apply beyond the circumstances contemplated by s 19(2)(c).

134    Alternatively, the ABCC submits that cl 3.4.1 should be interpreted as applying only where the employee reasonably feels that controls are insufficient, taking into account the likelihood, magnitude and proximity of the potential injury – this was not the case here.

135    In any event, the respondents did not discharge their onus because they did not lead evidence to establish that each of the relevant employees did in fact cease work because they felt that controls were insufficient. The mere existence of a vote does not discharge this onus – any employee who stopped work because, for example, they did not wish to go against the results of the alleged vote or because they simply did not want to work would not be invoking cl 3.4.1

136    The respondents reject the proposition that cl 3.4.1 is nothing more than a re-statement of s 19(2)(c), and contend that the Court is not at liberty to depart from the words used by the parties. Further, the respondents contend that even if cl 3.4.1 was subject to s 19(2)(c), that section was satisfied in circumstances where the workers raised concerns with the Safety Committee and Mr Myles in relation to their belief that the stairs were not safe.

137    In Bartlett the appellant had been summarily dismissed by his employer pursuant to cl 14.3(b) of his employment contract which provided as follows:

ANZ may terminate your employment at any time, without notice, if, in the opinion of ANZ, you engage in serious misconduct, serious neglect of duty, or serious breach of any of the terms of this employment agreement. In such circumstances, you will be entitled to payment of your Total Employment Cost (TEC) (as described in Schedule A) up to the date of termination only

(Emphasis added.)

138    Clause 13 of the employment contract provided:

13.    Disciplinary Action

If you fail to comply with the provisions of your employment agreement or any other ANZ performance requirements, ANZ may take disciplinary action which may include suspension with or without pay and, in certain circumstances, termination of your employment with ANZ (see clause 14).

139    On appeal the appellant argued that cl 13 was important in the context of cl 14.3(b) and when regard was had to it, the conclusion should be drawn that termination under cl 14.3(b) required the objective existence of “misconduct”, not simply the opinion of the employer that that had occurred.

140    McFarlan JA (Meagher and Simpson JJA concurring) found in relation to cl 13 that its satisfaction was dependent upon an actual breach of the employment agreement (or performance requirements), not upon the employer’s opinion as to whether such a breach had occurred. Accordingly, cl 13 only permitted termination where there had been a breach that could be established objectively and, even then, the right of termination was said to be available only “in certain circumstances”. His Honour continued:

31.    To construe Clause 14.3(b) as permitting termination where there had in fact been no misconduct or other breach, but only the opinion of the Bank that that had occurred, would be to render the two provisions in conflict. Such conflict can be avoided by treating the “opinion of ANZ” referred to in Clause 14.3(b) as applicable to the seriousness of the misconduct or other breach, not to its existence. This construction would conform to the contemplation of Clause 13 that, where there was a breach, termination could only occur “in certain circumstances”. On this approach, the “certain circumstances” would have been constituted by the Bank’s formation of an opinion that objectively occurring misconduct or other breach was “serious”. In my view this is an available construction of the words used in Clause 14.3(b).

(Emphasis added.)

141    Turning now to cl 3.4.1 of the PSMP I make the following observations.

142    First, it is common ground that:

    the PMSP was readily available at the Project Site;

    the PMSP applied to the sub-contractors on the Project Site;

    the Project Subcontractors were contractually bound to comply with the PSMP; and

    the Project Subcontractors were bound to implement the PMSP.

143    I also understand there to be no dispute that, as a general proposition and at appropriate times, the employees who stopped work on 27 June 2014 could do so by reference to the PSMP.

144    Second, it is uncontroversial that commercial agreements should be given a commercial and business-like interpretation: Software AG (Australia) Pty Ltd v Racing & Wagering Western Australia [2009] FCAFC 36; 175 FCR 121 at [37]; Jirah International Pty Ltd t/as Gloria Jean’s Coffee v Western Exports Services Inc [2011] NSWCA 137 at [55]. However, it is equally uncontroversial that, in doing so, the Court is constrained by the actual language used. As McFarlan JA further observed in Jirah at [55]:

So far as they are able, courts must of course give commercial agreements a commercial and business-like interpretation. However, their ability to do so is constrained by the language used by the parties. If after considering the contract as a whole and the background circumstances known to both parties, a court concludes that the language of a contract is unambiguous, the court must give effect to that language unless to do so would give the contract an absurd operation. In the case of absurdity, a court is able to conclude that the parties must have made a mistake in the language that they used and to correct that mistake. A court is not justified in disregarding unambiguous language simply because the contract would have a more commercial and businesslike operation if an interpretation different to that dictated by the language were adopted.

(Emphasis added.)

(See also, eg, comments of the Victorian Court of Appeal in Apple and Pear Australia Ltd v Pink Lady America LLC [2016] VSCA 280 at [99].)

145    The words of cl 3.4.1 are clear in giving, all workers, authority to stop work in the event that they feel that controls are insufficient to protect them from being injured.

146    Third, the language of the PSMP, in particular cl 3, is indicative of empowerment of workers in relation to safety issues. Clause 3.4.1 reiterates the importance of enabling persons to take action without fear of recrimination, including authority given to workers to stop work in the event that they feel controls are insufficient to protect them from being injured. In his submissions the ABCC appears to criticise as inappropriately subjective an interpretation of cl 3.4.1 in which the workers are authorised to stop work according to their “feelings” of lack of safety, however:

    Issues of safety are of critical importance on building sites;

    I accept the proposition that, invariably, feelings of safety are subjective by reference to circumstances at a particular point in time, and cl 3.4.1 gives effect to this; and

    Superimposing a requirement of objectivity in the form argued by the ABCC is not only not stipulated by cl 3.4.1, but potentially undermines the effectiveness of the clause in circumstances where decisions to stop work should be made quickly because of safety issues.

147    Fourth, I consider that the facts of this case are distinguishable from those in Bartlett, where the question of whether the employer legitimately held an opinion concerning misconduct of the employee was viewed through the prism of overarching disciplinary powers of the employer under the contract of employment. The contractual context in which Bartlett was decided does not exist in this case.

148    Fifth, in order to give effect to cl 3.4.1, it is unnecessary for a requirement of objectivity to be implied. Clause 3.4.1 is effective according to its plain language, namely whether workers feel that controls are insufficient to protect them from being injured.

149    Sixth, while s 19(2)(c) contemplates action based on a reasonable concern of an employee about an imminent risk to his or her health or safety, cl 3.4.1 is drafted in terms of giving effect to an authorisation or agreement by an employer (which is contemplated by s 19(2)(a)). I am not persuaded that cl 3.4.1 derives its legitimacy from s 19(2)(c), or merely re-states the provisions of that section. Indeed as the respondents submitted, s 19(2)(c) has effect according to its terms, and it would be unnecessary to restate it in cl 3.4.1 of the PSMP.

150    Seventh, there is evidence before the Court that the workers on the Project Site that day had safety concerns as a group. At [36] of his affidavit affirmed 15 September 2016 Mr Myles gave evidence as follows:

I then attended the crib sheds and had a pre-start meeting with the workforce. They asked me if the issues had been fixed and I said that I did not know as I had not been up into the site. The workers told me that they wanted the Safety Committee to do a “safety walk” with me to determine whether the issues had been properly fixed. The workers did not want to go back to work until this had occurred. I did not encourage the workers to stay in the shed.

151    During cross-examination, Mr Myles gave evidence as follows:

You weren’t there to have a meeting with workers who weren’t eligible to be CFMEU members, were you?---I was there to have a meeting with anyone who had an issue with the safety issues on site that had been ongoing and that had caused industrial action the day before which I thought was not particularly advised, and that I was trying to resolve.

Now, so you’re there, there’s this 100 or so works present. What – so do you raise with them whether the safety issues that had been identified had been fixed, do you?---I talked to them about that, yes.

So, what, you gathered them together and said, “Well, the issues that were raised yesterday, have they been resolved?”?---I said, “Issues been raised yesterday. I don’t know if they’ve been resolved yet or not.” And asked if anyone knew if they had.

Yes?---Particularly members of the Safety Committee.

Yes, yes?---Everyone said they didn’t know.

Right?---And then as far as I recall, some people said, “Well, we want you to go and have a look and make sure it’s fixed.”

Okay. So did you agree to that – to that suggestion?---Yes. I said I would walk with the Safety Committee, and that if areas were good, people could go back to work. If they weren’t good, then the committee would report back and I – I with the committee would report back and tell them what was good and what wasn’t.

So when did this issue about the Safety Committee doing a safety walk with you arise?---Well, when we were having that meeting, the guys brought up that they wanted us to have – me to have a look, and I think I suggested that the Safety Committee could – should obviously come too because all their safety reps – each subcontractor had their own safety reps on the committee, and that it would be a group decision about anything that would happen.

And the safety walk, that was to occur where?---On the site.

What, all over the site?---Well, there was a general safety walk to deal with the site issues overall, yes.

And that was to check if areas were safe, was it?---Yes.

Yes. So at some point, what, did you leave that meeting with those who were there who were on the Safety Committee?---Yes.

And what was to happen with the remainder of the workers?---They would wait there till the Safety Committee reported to them, and their reps would go and tell them which areas are open or not.

And how was that decided?---Everyone – general consensus in the room that that’s what they wanted to do, with a discussion with myself.

And so you agreed to that course of action?---Yes.

And you told them so?---Yes.

That they should stay there until you came back and told them that it was safe?---I told them that I would do the safety walk and we would let them know which areas were safe.

And then what did you say in the meantime, “You people should stay here”?---Well, I think that was implied in the first statement. I didn’t specifically say, “You should stay here.” I just said, “We will go have a walk, and areas that are open, we will let you know when we come back.”

So, in effect, you told the workers to stay at the shed until the safety walk had been conducted and you came and reported back?---In effect. I said that there’s – what I said to them was, “Well, you’ve obviously got ongoing issues. I will go walk with the Safety Committee, and myself and your reps will come back and let you know if it’s all good or not.”

(transcript pp 230-231)

152    I have already noted that the onus is on the respondents, who are relying on s 19(2)(c), to prove that the conditions contemplated by s 19(2)(c) exist, and that in fact the workers had stopped work because, inter alia, they were authorised to. The respondents rely in turn on cl 3.4.1 of the PSMP, which authorises workers to stop work in the event that they feel that controls are insufficient to protect them from being injured. The evidence before the Court is that the workers on the Project Site on 27 June 2014, who remained in the Sheds and stopped work, did so for reasons associated with concerns about safety. There is no evidence to the contrary. In my view Mr Myles’ evidence that the workers at the meeting were unanimous in expressing concern about safety conditions should be accepted. I do not consider that the position of the respondents in respect of this issue fails because they have not advanced separate affidavits of every individual worker on the Project Site that day.

153    Eighth, and in any event, I note the additional evidence before the Court that there were safety issues in respect of stairs on the Project Site which were concerning the workers, in particular whether there was room on stairs between floors for an injured worker to be evacuated. Mr Myles gave evidence that a general practice was that, if a person were injured and strapped into a stretcher for evacuation, the stretcher would be carried by four people, namely two people on each end with each person holding one corner of the stretcher. Under cross-examination Mr Myles gave evidence, in relation to a “dry run” exercise concerning a stretcher being carried down stairs on the Project Site:

Yes. Now, I suggest to you that notwithstanding that there was propping in the way, it was possible for a stretcher to be manoeuvred with care down the stairs?---If you don’t mind the person on the stretcher being banged into things, being put sideways, being put upside-down, people half dropping a stretcher, people swearing and carrying on because they couldn’t figure out how to do it. If you get rid of all those things, then it was perfectly possible.

Well, I suggest to you that that is not the case. If the stretcher was used with the normal level of care and manoeuvre that is to be used, none of those things would have happened on this occasion?---No way known.

Sorry?---No way known.

And in the course of the stretcher dry run, Mr Ross said to you that the stretcher activity was only to be used as a last resort, didn’t he?---I don’t recall him making a point of that, but he might have said that.

You were just, I suggest, looking for problems in respect of the stretcher exercise, weren’t you?---No, I was observing a problem.

(transcript p 241)

154    Mr Ross gave evidence concerning the events of the morning of 27 June 2014, including that if a person were injured he or she would be evacuated by a tower crane, and that it was not Watpac procedure to evacuate by stretcher down fire stairs (transcript p 47 lln 25-34):

Now, you mention that the inspectors referred to a dry run?---Of the stretcher and the stair - - -

Yes?---Yes.

Did that occur?---Yes. Yes, it did.

And at whose request, from Watpac’s respect, did that occur?---I would have condoned it.

Okay. Why did you determine to conduct that dry run?---As I said earlier, it was – raise a industrial issue, or a complaint from the site, so we always work with our guys onsite, and if they raise a concern, we always work with them.

Okay. Did the dry run subsequently take place?---Yes, did.

Okay. Were you present for the dry run?---Yes, I was.

Okay. Now, apart from yourself being present, anybody else there?---Safety committee.

Okay. Any – putting Mr Gill and Mr Baker to one side, being part of the Safety Committee, was any official of the CFMEU present for the dry run?---Mr Myles was still onsite, yes.

Okay. Now, can you just tell the court – or just describe to the court the process that was undertaken during the dry run, please?---So I will read from my notes here, that

Well, just before you do, do you have a recollection of the dry run actually occurring?---I – yes – I do have a recollection of it, yes.

Well, just tell the court your recollection of the dry run occurring, please?---I thought it could have been conducted in a bit more of a sensible manner.

Right. Well, who conducted it?---It – the – I recall the two Watpac CFMEU delegates being on a corner each of the stretcher. I can’t recall who was on the back two corners of the stretcher.

Yes. And when you say it could have been conducted in a more sensible manner, what do you mean?---I believed that, even without minor movements of the materials in there, which would have easily facilitated the movement of the stretcher, that it was made to look a little bit more difficult than, perhaps, it was.

And when the dry run was happening, the dry run started at about where, and finished at about where?---It would have been between level 5 and 6.

Okay. And was the dry run successful?---It – I think I’ve recorded here, it was deemed unsuccessful.

Well, you were there; what do you say about it?---I think it was – my recollection was, it was suggested that it was inadequate.

And because?---Because they believed that it was too difficult to get the stretcher around the mid-landing.

Now, if we can just – just on that point, before we go on, you gave evidence before about some rectification activities that were to occur?---Yes.

Had they occurred by the time this dry run happened?---They wanted it in – my recollection of it was, the state it was in - - -

Yes?--- - - - was how they wanted it kept. So they moved – did some other stuff, for – like, the single prop on level 4. But they wanted the stretcher to go through the way it was, and then it was immediately rectified after.

Who’s the “they”?---It was suggested through the Safety Committee.

Right. And when you say “rectified immediately after”, immediately after what?---My recollection is, after the – we had the run with the stretcher - - -

Yes?--- - - - at some time after that, it was altered.

Okay. Okay. Now, in terms of Mr Myles’ presence during the dry run, did he say anything during the course of it?---I made some notes here:

There was some commentary by Mr Myles, and Gill and Baker, on the inadequacy of the trial.

I’ve also recorded that:

Mr Myles then encouraged the committee to deem it unsatisfactory.

Yes.

Anything else in respect to Mr Myles making comments?---Not at that stage

(transcript pp 48-49)

155    Later Mr Ross reiterated his evidence concerning evacuation of injured workers as follows:

You’ve given evidence earlier about the existence of other means to evacuate people from the site. Did you discuss that at all with the participants in the 10 dry run?---Sure. I’ve recorded here - - -

And what did you say?---So I again reminded the committee, this was only – well, this was only as an absolute last resort that workers would be transported in this manner, and it was in contradiction to the site emergency procedures.

Right. And the site emergency procedures: were they recorded in any particular - - -?---Part of our safety plan, and our emergency response plan.

(transcript p 50 lln 9-18)

156    In substance, Mr Ross’ evidence supported that of Mr Myles, in respect of the concerns workers at the Project Site had expressed in relation to safety issues (in particular the potential evacuation of injured workers on that site). While Mr Ross gave evidence that Watpac had other processes (in particular the tower crane) for such evacuations, there was no evidence before me to indicate that this would be a realistic approach in all circumstances, that the workers were aware of this alternative approach, or that the concerns of the workers were not legitimate. Indeed Mr Ross accepted that the “dry run” conducted on 27 June 2019 was “a failure”.

157    In this respect I am satisfied that the decision of the workers to stop work on 27 June 2014 was motivated by genuine safety concerns, and in this respect was authorised within the meaning of s 19(2)(a) FW Act.

(ii)    Was the action based on a reasonable concern of each of the employees about an imminent risk to his or her health or safety?

158    In view of my findings concerning the concerns of the employees in relation to safety issues on the Project Site, it is not necessary to make any findings as to the reasonableness of the concern of each employee. However if it were necessary to make a finding I note that there is evidence before the Court that the employees were concerned the fire stairs were unsafe, that a trial evacuation drill failed, that the Safety Committee also formed the view that the fire stairs were unsafe and conveyed that view to the workers on the Project Site, and that Mr Ross had agreed that the stretcher stairs would be rebuilt. In such circumstances I would be prepared to find that action of 27 June 2014 was based on a reasonable concern of employees about an imminent risk to health or safety.

(c)    If the stoppage was industrial action, did Mr Myles organise the stoppage within the meaning of s 417(1)?

159    In light of my findings that the stoppage on 27 June 2014 was not industrial action, it is unnecessary to address this issue.

(d)    In the event that Mr Myles did not organise the stoppage, did he involve himself within the meaning of s 550?

160    In light of my findings that the stoppage on 27 June 2014 was not industrial action, it is unnecessary to address this issue.

Right of entry contraventions

(a)    Was Mr Myles exercising or seeking to exercise a right conferred by Pt 3-4?

161    I have found that the actions of the workers on 27 June 2014 were not “industrial action” within the meaning of s 19(1) of the FW Act because it was authorised conduct within the meaning of s 19(2)(a) of the FW Act. This however does not determine the question whether, in entering the Project Site on that day, Mr Myles was exercising or seeking to exercise a right conferred by Pt 3-4 even if the workers did not subsequently take “industrial action”.

162    It is common ground that Mr Ross asked Mr Myles for a right of entry notice when Mr Myles presented at the Project Site on the morning of 27 June 2014 and that Mr Myles refused to provide one. Further, there is no dispute between the parties that Mr Myles made no assertion of a right to enter in accordance with Pt 3-4 nor that he did not in any way seek to clothe himself in the authority of the FW Act. In light of the decision of the Full Court in Laverton North however it is not determinative whether or not a permit holder sought to clothe himself or her herself in the authority of the FW Act.

163    As I noted earlier, Pt 3-4 of the FW Act gives rights of entry by way of investigation of suspected contraventions of the Act, fair work agreements, or State or Territory OHS laws (in particular ss 117 or 121(1) of the WHS Act). In this case, in circumstances where safety issues concerning the stairs had been raised at the meeting on 26 June 2014, relevant provisions are Pt 3-4 Div 3 of the FW Act which, inter alia, requires that an official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder (s 494(1)), a permit holder must not exercise a State or Territory OHS right to inspect or otherwise access an employee record of an employee unless (inter alia) 24 hours’ notice is given to the occupier of premises and any employer (s 495), and a permit holder exercising, or seeking to exercise, rights in accordance with Pt 3-4 must not intentionally hinder or obstruct any person, or otherwise act in an improper manner (s 500). Sections 117 and 121(1) of the WHS Act provide:

117    Entry to inquire into suspected contraventions

(1)    A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.

(2)    The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.

…

121    Entry to consult and advise workers

(1)    A WHS entry permit holder may enter a workplace to consult on work health and safety matters with, and provide advice on those matters to, 1 or more relevant workers who wish to participate in the discussions.

(2)    …

164    Notwithstanding that Mr Myles did not claim to enter the Project Site on 27 June 2014 in exercise of – or in seeking to exercise – rights of entry under Pt 3-4 of the FW Act, it is plain that that is precisely what he did.

165    First, the evidence before the Court is that safety issues were raised by the workers at the Project Site on 26 June 2014 during the visit of Mr Ingham and Mr Myles. Mr Myles’ evidence was that he returned to the Project Site the next day to, in substance, investigate these issues further, and it was with that intention that he entered the site on 27 June 2014. In particular his evidence as follows:

Now, at what – at what point did you decide that you would come back to the site the next day? When did you make that decision?---That’s general practice when you have an issue.

No, when – when on the 26th did you decide that you ought to come back to the site the next day?---When the guys were walking out, I decided I should probably come back the next day.

And why did you form the view that you ought to come back the next day?---Because the issues hadn’t been fixed.

Yes?---There had been a remove – the guys had removed themselves from the site, and if I hadn’t come back the next day, or someone hadn’t come back – but I was assuming it was going to be me – and the issues wouldn’t have been fixed, then we would have been back at square one again with the same problem.

And when you say issues hadn’t been fixed, you’re referring to what you understood to be issues with the scaffold stairs and the props, etcetera?---Yes, things along those lines. That’s ones I recall. I know there were others, but that’s what I recall.

And they’re safety issues, aren’t they?---Yes.

Yes. So you had a concern, did you, that workers may be may be required to work in areas that were unsafe?---I had a concern that – yes, I had a concern of that. Yes. So you wanted to come back the next day to seek to ensure that the matters that you considered to be safety concerns had been dealt with?---Yes.

Yes. And if you think that these safety concerns that had been brought to your attention in respect of props, lack of safety scaffold stairs, etcetera, were matters that could potentially be a contravention of the Work Health and Safety legislation?---I knew they were a contravention of the Work Health and Safety legislation.

And that would, no doubt, be of itself a concern to you?---Well, the safety of the members is my concern.

Because safety issues in respect of members are matters that have the potential to affect the safety of the workers of the site?---Yes.

Including workers who are eligible to be members of the CFMEU?---Yes.

And so you wanted to go back there on the 27th to check to see if these potential contraventions were still occurring, didn’t you?---Yes, and to talk to the workers about whether they had been, and make sure that the processes that were in place were working.

Yes. To check that the workers were not in danger in respect of these safety issues?---Yes.

Yes. And was it also part of your intention, in going back there on the 27th, to inspect the site to see if safety issues were still present?---Well, it was my intention to ask if it had been fixed first and then find out what had happened and then move on from there.

And when you say after it had been fixed, what, talk to the workers about the safety issues?---Well, my understanding was the day before, when the guys were talking, that someone may have stayed behind to fix it. I wasn’t sure about that. So I was coming back to see what had happened.

Yes. You wanted to go back, did you, and talk to the workers to see if the safety issue had been resolved?---Yes.

And you wanted to go back, did you, to talk to the management of Watpac to see if the safety issues had been resolved?---Yes.

Yes. And you considered, of course, didn’t you, that you were entitled to go back to the site on 27 June to look into these safety issues because of the right that you held under the Workplace Health and Safety Act?---No, I knew there was – everyone’s EBA allowed me to go and have meetings with them, and section 33.4 of all their EBAs allows me to go and talk to them about any disputes. I hadn’t had an issue with it before.

(transcript pp 223-224)

166    Clearly, Mr Myles entered the Project Site to consult on work health and safety matters with, and provide advice on those matters, to one or more relevant workers who wished to participate in the discussions within the meaning of s 121(1) of the WHS Act, and for the purpose of inquiring into a suspected contravention of the WHS Act in relation to the safety of stairs on the Project Site within the meaning of s 117.

167    My view in this respect is reinforced by principles explained by the Full Court in Laverton North to which I have already referred. In particular, as Tracey J observed:

    Part 3-4 confers a series of rights of entry on permit holders if those entries are for prescribed purposes. Division 2 of Pt 3-4 provides for entry for particular purposes including, relevantly, entry for the purpose of holding discussions with certain employees under Subdiv B. (at [54])

    The rights of entry, provided for in Div 2 of Pt 3-4, are conferred on permit holders. Those rights of entry continue to exist for as long as the permit remains valid. The right, in each case, must be exercised in accordance with the requirements prescribed by Subdiv C but they continue to exist. The consequence of a failure to comply with a provision of Subdiv C which is applicable is that prescribed by s 486 of the Act. It is not a termination of the right. (at [57])

    A permit holder who has given notice under s 487, and who enters premises for the purposes prescribed by s 484, enters as a matter of right and is able to remain on the premises to pursue discussions with willing employees. (at [59])

    If notice is not given by a permit holder as required by s 487, the consequence is that prescribed by s 486, namely that s 484 (Subdiv B) does not “authorise” the holder to enter or remain on the premises. This stipulation operates as a qualification on an existing right of entry for a prescribed purpose (at [62])

    None of the requirements, imposed on permit holders by Subdiv C, are expressly identified in the FW Act as preconditions of the exercise of a right (at [65])

    The purpose of s 500 of the FW Act is to regulate the conduct of permit holders who are exercising or seeking to exercise rights in accordance with the Part. In the context of that section “in accordance with” is better understood as meaning “covered by” or “under”. (at [84])

    The primary Judge in Laverton North had erred in construing the phrase “seeking to exercise” in s 500 as limiting the operation of the section to cases in which a permit holder had engaged in “an intended but legally flawed exercise of a right” or in an “unintended or inadvertent non-compliance with the requirements for the exercise of a right”. Rather – exercising a right of entry in circumstances where the permit holder knows that he or she has the right but has not complied with one of the requirements of Subdiv C (such as giving notice) can reasonably be treated as an attempt to exercise the right conferred by s 484. “Seeking” in s 500 bears its ordinary or grammatical meaning, and includes trying or attempting do something. (at [87], [88], [89]).

168    In this case, analogously to the actions of the officials in Laverton North:

    Mr Myles was a permit holder for the purposes of Pt 3-4 of the FW Act;

    Mr Myles clearly entered the Project Site on 27 June 2014 for purposes which fell within those identified by s 484 of the FW Act;

    Mr Myles had a right to enter the Project Site in exercise of rights conferred by that permit, however that right was required to be exercised in accordance with the requirements of Pt 3-4 of the FW Act; and

    No notice of entry was given by Mr Myles in accordance with the requirements of Pt 3-4 of the FW Act.