Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v Kyren Pty Ltd [2020] FCA 1356

ORDERS

THE COURT DECLARES THAT:

1.    Each of the First Respondent, Kyren Pty Ltd and the Second Respondent, Mr Donald McCondichie, contravened s 501 of the Fair Work Act 2009 (Cth) (the FW Act) on 30 January 2019 by refusing entry on to the Site at 11-27 Frome Street, Adelaide by Mr Clarence Fellowes and Mr Anthony Stott who were entitled to enter in accordance with Pt 3-4 of the FW Act.

2.    The Second Respondent, Mr Donald McCondichie, contravened s 502(1) of the FW Act on 31 January 2019 by intentionally hindering and obstructing Mr Clarence Fellowes and Mr Anthony Stott who were exercising rights of entry in accordance with Pt 3-4 of the FW Act.

THE COURT ORDERS THAT:

1.    The First Respondent, Kyren Pty Ltd, pay a pecuniary penalty of $15,000 in respect of its contravention of s 501 referred to in the first declaration above.

2.    The Second Respondent, Mr Donald McCondichie, pay a pecuniary penalty of $3,800 in respect of his contravention of s 501 of the FW Act referred to in the first declaration above.

3.    The Second Respondent, Mr Donald McCondichie, pay a pecuniary penalty of $1,800 in respect of his contravention of s 502(1) which is the subject of the second declaration above.

4.    Pursuant to s 546(3) of the FW Act, each of the pecuniary penalties is to be paid to the Construction, Forestry, Maritime, Mining and Energy Union within 28 days.

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

REASONS FOR JUDGMENT

WHITE J:

1    Part 3-4 of the Fair Work Act 2009 (Cth) (the FW Act) contains a suite of provisions establishing rights of officials of registered organisations to enter premises for purposes related to their representative role under that Act and regulating the exercise of that right.

2    Section 501 of the FW Act prohibits a person from refusing or unduly delaying entry onto premises by a permit holder entitled under Pt 3-4 of the FW Act to enter those premises.

3    Section 502(1) of the FW Act prohibits a person from intentionally hindering or obstructing a permit holder exercising rights in accordance with Pt 3-4.

4    The second respondent in these proceedings, Mr McCondichie, was in January 2019, employed by the first respondent (Kyren) as its Site Manager on a building site in Frome Street, Adelaide (the Site). Mr McCondichie admits that, on 30 January 2019, he contravened s 501 by refusing entry onto the Site by two permit holders, Mr Fellowes and Mr Stott. Both Mr Fellowes and Mr Stott were at the time officers of the applicant (CFMMEU).

5    Kyren admits that, by the conduct of Mr McCondichie and by reason of s 793 of the FW Act, it contravened s 501 of the FW Act.

6    Mr McCondichie also admits that on the following day, 31 January 2019, he contravened s 502 by intentionally hindering and obstructing Mr Fellowes and Mr Stott who, as permit holders, were exercising rights of entry onto the Site.

7    Each of s 501 and s 502 is a civil remedy provision. Section 546(1) of the FW Act empowers the Court to order a person to pay a pecuniary penalty that the Court considers appropriate if it is satisfied the person has contravened a civil remedy provision.

8    In these proceedings, the CFMMEU seeks declarations as to the contraventions and the imposition of penalties pursuant to s 546. The respondents’ Amended Defence admits all the factual allegations of the CFMMEU concerning the contraventions, admits that the CFMMEU is entitled to the declarations it seeks, and admits that the CFMMEU is entitled to pecuniary penalty orders. The principal issue between the parties is the amount of the pecuniary penalties.

The statutory schemes

9    As has been recognised previously, in granting rights of entry to permit holders, the legislature seeks to achieve a balance between the interests of occupiers of premises, employers, unions and employees: Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 at [14] and [15]. That is because, without those rights, union officials would have no right to enter the premises of others without the agreement of the occupier: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 (the Lend Lease Case) at [41]. Sections 501 and 502 of the FW Act are part of the scheme by which the respective interests are balanced.

10    Section 546 exists to facilitate the enforcement of provisions such as those contained in Pt 3-4 of the FW Act: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (The Agreed Penalties Case) at [16]. Accordingly, it is appropriate that the penalties imposed pursuant to it should take account of the place of ss 501 and 502 in the statutory scheme. In order to do so in the circumstances of the present case, it is necessary first to have regard to the provisions concerning health and safety permits.

11    Section 19 of the Work Health and Safety Act 2012 (SA) (the WHS Act) imposes duties on persons conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers in the business or undertaking. It contains a variety of mechanisms for the enforcement of that obligation.

12    By s 117(1) of the WHS Act, a “WHS entry permit holder” may enter a workplace for the purpose of inquiring into a suspected contravention of that Act which relates to, or affects, a “relevant worker”. The term “WHS entry permit holder” is defined in s 4 to mean a person who holds a “WHS entry permit”, that is, a permit issued under Pt 7 of that Act.

13    The term “relevant worker” is defined in s 116 of the WHS Act:

relevant worker, in relation to a workplace, means a worker—

(a) who is a member, or eligible to be a member, of a relevant union; and

(b) whose industrial interests the relevant union is entitled to represent; and

(c) who works at that workplace.

14    While at the workplace, the WHS entry permit holder may engage in a number of defined activities, including inspecting any work system, plant or structure relevant to the suspected contravention (s 118(1)(a)), consulting with the relevant workers in relation to the suspected contravention (s 118(1)(b)), consulting with the relevant person conducting a business or undertaking about the suspected contravention (s 118(1)(c)), and warning any person, whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk (s 118(1)(e)).

15    There are some qualifications on the right of entry bestowed by s 117. Those which are relevant presently include:

(1)    the permit holder must reasonably suspect before entering the workplace that a contravention has occurred or is continuing and involves a risk to the health or safety of the relevant worker (s 117(2));

(2)    the permit holder must consider whether it is reasonably practicable to give notice to the Executive Director of SafeWork SA about the proposed entry before exercising the right of entry in order to provide an opportunity for an inspector to attend at the workplace at the time of the entry and, if it is reasonably practicable to do so, comply with the requirements fixed by regulation in relation to giving such a notice (s 117(3)); and

(3)    the permit holder must, as soon as is reasonably practicable after entering a workplace, give notice of the entry and of the suspected contravention, in accordance with the regulations, to the relevant person conducting the business or undertaking and a person with management or control of the workplace (s 119(1)).

16    Division 3 in Pt 3-4 of the FW Act also circumscribes the right of entry granted by provisions such as s 117 of the WHS Act. Relevantly for present purposes, s 494(1) of the FW Act provides that, in a wide range of circumstances, an official of an organisation must not exercise a right of the kind bestowed by s 117 of the WHS Act unless the official holds an entry permit issued by the Fair Work Commission under Div 6 of Pt 3-4. Section 497 provides that the permit holder must not exercise such a right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer. Section 499 provides that a permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.

17    A permit holder may exercise a State or Territory OHS right only during working hours (s 498) but, unless the permit holder is exercising the right for the purpose of inspecting or otherwise accessing an employee record of an employee, may enter the premises without having given prior notice of his or her intention to do so.

18    Both the WHS Act and the FW Act recognise the important role of permit holders in achieving the objects of the WHS Act. The objects of the WHS Act (s 3) include:

3—Object

(1)    The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by—

…

(c)    encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and

…

(2)    In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work, or from specified types of substances or plant, as is reasonably practicable.

(Emphasis added)

19    Section 132 of the WHS Act reflects this intention by providing that an issuing authority must, when considering the issue of a WHS entry permit, take into account “the object of allowing union right of entry to workplaces for work health and safety purposes”.

20    Section 480 of the FW Act identifies the object of Pt 3-4. It specifies:

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a)    the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i)    this Act and fair work instruments; and

(ii)    State or Territory OHS laws; and

(b)    the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c)    the right of occupiers of premises and employers to go about their business without undue inconvenience.

21    Sections 501 and 502 are important elements in the achievement of the objects of this scheme. Section 501 provides:

501 Person must not refuse or delay entry

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

22    Section 502(1) provides:

502 Person must not hinder or obstruct permit holder

(1)    A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.

23    As was noted by Tracey J in Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd (No 2) [2017] FCA 1237 at [43], “the protection of workers’ safety on building sites is a highly important function and breaches of provisions such as s 501 have the potential fundamentally to undermine workers’ safety”.

24    In BGC POS Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 74; (2019) 285 IR 43, Colvin J considered the term “intentionally hinder or obstruct” in s 502(1) in some detail and concluded that it does not require a specific intention to produce the result that the conduct will hinder or obstruct, only that the actions relied upon have been deliberate, at [43], [48]. His Honour also considered that the inclusion of the word “intentionally” in s 502 makes clear that the provision does not extend to accidental or involuntary conduct, but refers to conduct which is engaged in deliberately or consciously.

The witnesses

25    Despite the respondents’ admissions in the Amended Defence, the Court heard evidence from four witnesses: Mr Fellowes and Mr Stott who were called by the CFMMEU and Mr Samaras and Mr McCondichie who were called by Kyren. That came about in the circumstances which follow.

26    After a mediation, the CFMMEU filed an Amended Originating Application and Statement of Claim and the respondents filed an Amended Defence. In that Amended Defence, the respondents admitted all the factual allegations made by the CFMMEU and admitted the contraventions of ss 501 and 502. The Court then made programming orders in relation to the penalty hearing which included provision for the parties to file affidavits containing the evidence they would rely upon for that hearing. The respondents filed affidavits made by Mr Samaras, Kyren’s Managing Director, and by Mr McCondichie.

27    The CFMMEU objected to portions of the affidavit made by Mr McCondichie and, to a limited extent, portions of the affidavit of Mr Samaras concerning the circumstances in which the contraventions occurred, on the basis that those portions were either inconsistent with the formal admissions made by the respondents, raised new matters about those circumstances which had not been pleaded, sought to revive allegations made in the respondents’ original defence which had been withdrawn in the Amended Defence, or were contrary to the agreement reached between the parties at the mediation. At the hearing, counsel for the CFMMEU abandoned reliance on the fourth of these grounds and, in the oral submissions, did not rely on the third. Counsel raised in addition, however, s 135 of the Evidence Act 1995 (Cth).

28    Counsel maintained the first and second objections at the hearing and indicated that, in the event that the affidavits of Mr McCondichie and Mr Samaras were received, he wished the Court to receive evidence from Mr Fellowes and Mr Stott. He noted that the respondents had not sought leave to withdraw any of their formal admissions.

29    The orthodox principle is that admissions to pleaded facts have the effect of narrowing the issues in dispute, thereby restricting the evidence to be tendered at the trial and precluding evidence to the contrary: Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492 at [154]. However, I overruled the CFMMEU objections to the affidavits of Mr McCondichie and Mr Samaras for two principal reasons. First, it seemed apparent that the accounts in the pleadings of the circumstances of the contraventions were not complete and it was possible that there were matters of mitigation in the circumstances which had not revealed by the form of the pleadings. I considered it appropriate that the Court impose penalties on a complete understanding of the relevant conduct which had occurred on 30 and 31 January 2019, and not just on the “bare bones” contained in the pleadings: Damberg v Damberg at [160]. Secondly, I considered that appropriate account could be taken of the claimed inconsistencies between the respondents’ evidence and their formal admissions in the assessment of the evidence.

30    The CFMMEU then led evidence from Mr Fellowes and Mr Stott and the respondents adduced evidence from Mr McCondichie and Mr Samaras. There were some irreconcilable inconsistencies between the evidence of Mr Fellowes and Mr Stott, on the one hand, and the evidence of Mr McCondichie, on the other.

31    Mr Fellowes and Mr Stott were in January 2019 employees of the CFMMEU. Mr Fellowes had commenced employment with the CFMMEU in early January 2019 in the position of Organiser. He obtained his WHS entry permit under Pt 7 of the WHS Act on 16 January 2019. Mr Fellowes thought that his entry onto the Site on 30 January 2019 was, approximately, his seventh exercise of a right of entry since commencing as an Organiser.

32    Mr Stott is employed by the CFMMEU in the position of Compliance Officer and is based in Brisbane. The evidence did not indicate his duties as a Compliance Officer. He had been asked to assist in the South Australian Branch in January 2019 and, amongst other things, had been asked to help train Mr Fellowes. Like Mr Fellowes, he had been issued with a WHS entry permit under Pt 7 of the WHS Act.

33    Mr McCondichie has been employed by Kyren as a Site Manager for approximately four years. He has considerable experience in the construction industry, both in Australia and overseas, and he has worked in site manger positions for approximately 27 years. As the Site Manager for the construction being undertaken by Kyren on the Site, he was responsible for the day to day operations at the Site, including programming and managing subcontractors.

34    As indicated, Mr Samaras is the Managing Director of Kyren which is a property developer and contractor.

35    The evidence in chief of all witness was contained in affidavits and each was cross-examined. The evidence of Mr Fellowes and Mr Stott was generally consistent and each corroborated the evidence of the other. I thought that each gave his evidence well and I am willing to accept their evidence as generally reliable.

36    I thought that Mr Samaras gave his evidence well and, again, I am willing to accept it as generally reliable.

37    I have reservations about accepting some of the evidence of Mr McCondichie. This is so for a number of reasons.

38    First, some of Mr McCondichie’s evidence is inconsistent with facts which both he and Kyren had admitted in the Amended Defence. This was surprising as the Amended Defence must have been prepared after instructions were taken from him.

39    Secondly, some of Mr McCondichie’s evidence is inconsistent with the evidence of Mr Fellowes and Mr Stott which, as indicated, I thought was generally reliable.

40    Thirdly, the manner in which Mr McCondichie gave his evidence was marked by defensiveness and self-justification. To some extent, that was not surprising, as his conduct comprises the contraventions under scrutiny in the proceedings. But even making allowance for that circumstance, it was apparent that Mr McCondichie was inclined to rationalisation of his conduct in a self-exculpatory way.

41    Fourthly, there were some aspects of Mr McCondichie’s evidence which seemed implausible. The fact that matters which one would have expected to have been mentioned earlier emerged for the first time during the cross-examination added to that impression. I mention in this context Mr McCondichie’s evidence that, after tearing the Notices of Entry provided by Mr Fellowes and Mr Stott into pieces, he had later taped the pieces back together and had given them to a SafeWork inspector. This evidence emerged for the first time when Mr McCondichie was asked to explain how the SafeWork inspector had been able, as he claimed, to comment on the adequacy of the notices after he had torn them into pieces.

42    Mr McCondichie’s claim that the SafeWork Inspector had commented adversely on the adequacy of the description of the matters of concern on the WHS notice entry was itself surprising as it had not been mentioned in his affidavit.

43    Another instance of a matter of seeming relevance emerging for the first time only in the cross-examination was Mr McCondichie’s evidence that, on the morning of 31 January 2019, he had apologised at the morning tool box meeting to the workforce for his conduct towards Mr Fellowes and Mr Stott on the previous day. I thought it surprising that this mitigatory action had not been mentioned in his affidavit, despite the affidavit being directed generally to matters of mitigation and contrition. Moreover, it seems surprising that, having apologised at the 6.30 am tool box meeting, Mr McCondichie would, only three hours later, engage in further contravening conduct.

44    Another matter which caused me concern about Mr McCondichie’s evidence was that it was very apparent that he commenced his interactions with Mr Fellowes and Mr Stott on 30 January 2019 with the mindset that the CFMMEU is a “militant” union and with a determination to meet the militancy he anticipated by exercising firm control. This was so even before he had spoken to Mr Fellowes and Mr Stott. His mindset coloured his perception of what was actually occurring. He was also aggrieved that he had not been given any forewarning that an exercise of rights of entry was intended and he allowed that grievance to colour his attitude.

45    My general preference for the evidence of Mr Fellowes and Mr Stott does not mean that I am satisfied that Mr McCondichie’s behaviour occurred without any provocative or reciprocal conduct at all by Mr Fellowes and Mr Stott. On the contrary, as will be seen, I am satisfied that there was some such conduct by Mr Stott.

Findings as to the contraventions on 30 January 2019

46    Mr Fellowes and Mr Stott attended the Site at about midday on 30 January 2019. They did so without forewarning to either respondent. Their purpose was to investigate suspected contraventions of the WHS Act.

47    I accept the evidence of Mr Fellowes and Mr Stott that their attendance that day was their first attendance at the Site. I reject Mr McCondichie’s evidence to the contrary. His attempt to justify his assertion that Mr Fellowes had been at the Site previously was not impressive.

48    Before seeking to enter the Site, Mr Fellowes and Mr Stott had noticed some matters about the position of a scissor lift and some matters about the way in which glass panels were being installed which gave rise to safety concerns. They took photographs of those matters. It is not necessary to make detailed findings about the conditions which Mr Fellowes and Mr Stott observed, except to say that I am satisfied that those conditions were present. Mr McCondichie’s evidence to the contrary, at [30]-[31] of his affidavit, is inconsistent with the photographs and inconsistent with the respondents’ formal admissions in their Further Amended Defence. I do not accept it.

49    It is an admitted fact that Mr Fellowes and Mr Stott had suspected on 30 January 2019 that Kyren had contravened, or was contravening, its obligations under s 19 of the WHS Act and that those contraventions related to “relevant workers”. It is also an admitted fact that each of Mr Fellowes and Mr Stott had telephoned SafeWork SA and informed it of their intention to enter the Site under s 117(1) of the WHS Act to investigate the suspected contraventions.

50    There was a difference between the witnesses as to where Mr Fellowes and Mr Stott were located when Mr McCondichie first saw them and spoke to them. Mr McCondichie said that he had been informed over the Site radio by the Site gateman that two CFMMEU officials had presented at the southern gate of the Site. He said that he then walked to the southern gates from the Site office and saw Mr Fellowes and Mr Stott in the slip lane area of the Site. They were taking photographs. He said that he approached them and told them to move away from the “exclusion area” in which they were standing. Mr Fellowes and Mr Stott then moved to an area immediately outside the southern gate to the Site.

51    Both Mr Fellowes and Mr Stott denied that account and said that they were standing on the public footpath outside the Site. Both denied that they had been in any “exclusion zone”.

52    Given my general preference for the evidence of Mr Fellowes and Mr Stott, I think their account is more likely. In any event, I am satisfied that, when Mr McCondichie first spoke to Mr Fellowes and Mr Stott, they were close to the Site gate.

53    Mr McCondichie stated that he then went through the usual process he adopts when a union official presents seeking to exercise a right of entry to investigate a suspected contravention under the WHS Act. He described the steps in that process as follows:

(a)    ascertain whether the official considers there to be an immediate or imminent safety risk;

(b)    ask the official (or each official if there is more than one) to produce their WHS Entry Permit and Fair Work Entry Permit and check that these are valid and have not expired;

(c)    ask the official (or each official if there is more than one) to produce a notice of entry and check that the notice contains sufficient information to enable him to identify the alleged safety breach. He makes this request even though the official does not have to produce the notice until after entry;

(d)    ascertain if the notice contains the required information and, if not, request the official to insert the relevant information;

(e)    if necessary, ask the official (or each official if there is more than one) on what grounds they reasonably suspect that a suspected contravention has occurred or is occurring; and

(f)    if necessary, ensure that the suspected contravention relates to or affects a relevant worker (ie, that the union official has the right to represent a worker or group of workers).

54    Both Mr Fellowes and Mr Stott denied that Mr McCondichie had gone through such a process. I think it unlikely that Mr McCondichie did so as the situation had escalated rapidly. I think it likely that that was in part because Mr McCondichie’s manner of speaking to Mr Fellowes and Mr Stott was perceived by them (not unreasonably) as rather brusque and because of his controlling manner. I accept Mr Fellowes evidence that Mr McCondichie commenced the conservation by asking (in a demanding way) “What are you doing here?”. When Mr Fellowes responded by saying that the two men were going “to come on a 117”, Mr McCondichie responded immediately by saying that they would not, and that that was not “the way we do things around here”.

55    Mr Fellowes and Mr Stott told Mr McCondichie that they had safety concerns and wished to enter to investigate suspected contraventions of the WHS Act relating to falls from heights and inadequate edge protection. The former related to the manner in which they had observed the glass panels being installed. The latter related to the manner in which they had seen a scissor lift being used. Both forms of work were being carried out by subcontractors of Kyren. Mr Fellowes and Mr Stott did provide Mr McCondichie with the Notice of Entry they had completed in order to satisfy s 119 of the WHS Act. Mr McCondichie said that Mr Stott did so in an aggressive manner. He also said that Mr Stott had held his WHS permit close to his (Mr McCondichie’s) face. I am satisfied that, as the conversation proceeded, aggressive words were spoken both by Mr McCondichie and Mr Stott.

56    It was evident from Mr Stott’s evidence that there had been some aggression in the way in which he had shown Mr McCondichie his WHS permit. Mr Stott acknowledged that, when he had first held the permit up for inspection, Mr McCondichie had said that he could not read it, and that he had shown it to him several times, by putting it closer and closer to Mr McCondichie’s face. Eventually he had held the permit some 6-8 inches away from Mr McCondichie’s face. I find that there was some aggression involved on Mr Stott’s part in the manner in which he did this and that his conduct antagonised Mr McCondichie who responded in a like manner. This is especially so as Mr Stott had his WHS permit attached to a lanyard around his neck which had the effect that, in order to show it to Mr McCondichie, he had had to be “quite close to him”.

57    Thus, there was some antagonism on both sides. As to Mr McCondichie’s conduct, the respondents formally admitted the applicant’s pleading that Mr McCondichie:

(a)    said [that] he would not let them on Site and that they had no right to be there and [that] they were interstate union thugs;

(b)    told them to fuck off and he did not give a fuck about their section 117’s;

(c)    proceeded to rip their section 119 notices [of entry] in half and place[d] [them] in his pocket.

58    Mr McCondichie claimed that he told Mr Fellowes and Mr Stott that their entry notices were insufficiently detailed. Both Mr Fellowes and Mr Stott disputed that he had done so. Mr Fellowes deposed that Mr McCondichie had ripped up the notices of entry without even reading them.

59    Given my general view about Mr McCondichie’s evidence, I am not willing to accept his evidence that he had requested more detail in the notices of entry. Nor am I willing to accept his evidence to the effect that Mr Stott had refused to produce his FW Act Permit. I find it surprising that this was not pleaded, especially given the detailed plea in [35C] of the ASC set out above which was admitted by the respondents. I think it likely that Mr McCondichie’s recollection of events is clouded by the enraged state he was in at the time.

60    Mr McCondichie did not permit either Mr Fellowes or Mr Stott to enter the Site and thereby contravened s 501 of the FW Act. Mr Fellowes then called SafeWork SA and sought the assistance of inspectors to assist with the entry.

Findings as to the contraventions on 31 January 2019

61    At about 9.45 am on 31 January 2019, Mr Fellowes and Mr Stott attended the Site again. I do not accept Mr McCondichie’s and Mr Samaras’ evidence that they were accompanied at that time by a third CFMMEU official, Mr McManus. Again, Mr Fellowes and Mr Stott noticed matters about the use of scissor lifts and about the manner of installation of glass panels which caused them concerns about safety.

62    The respondents admit that each of Mr Fellowes and Mr Stott had the state of mind required by s 117 of the WHS Act, that they had completed entry notices as required by s 119, and that both had separately contacted SafeWork SA by telephone to inform it of their intention to enter the Site to investigate the contraventions.

63    Mr Fellowes and Mr Stott went to the Site office and spoke to Mr McCondichie. Mr McCondichie claimed that he had told them that the details on the WHS entry notice were insufficient and that, as he was about to commence a Site meeting, they should come back later. Mr McCondichie did so in order to give effect to the policy of Kyren that he should accompany Union officials on Site when they exercised rights of entry. He also assumed that Mr Fellowes and Mr Stott were raising the same issues as they had the previous day, even though these had been checked by the SafeWork SA inspectors. I am satisfied that in doing so his manner was dismissive.

64    I reject Mr McCondichie’s oral evidence that he had “asked” the two men if they would “wait” while he made some calls. That evidence was inconsistent with both the further amended defence and with Mr McCondichie’s own affidavit. In my view, it represented an ex post facto rationalisation of the situation.

65    I also reject Mr McCondichie’s evidence that, had matters been able to proceed in the manner he intended, he would, by leaving the Site meeting, have delayed Mr Fellowes and Mr Stott by only 5-10 minutes. I find that he had already delayed them for about 15 minutes by the time Mr Samaras arrived.

66    Mr Fellowes and Mr Stott did not persist with their entry but contacted SafeWork SA again and requested that an inspector attend to assist with the dispute about their right of entry.

67    Mr Samaras arrived for the same Site meeting and he spoke to Mr Fellowes and Mr Stott. After a short discussion, he said that both he and Mr McCondichie would accompany the officials onto the Site and this then occurred. Mr McCondichie had in the meantime been told by a SafeWork inspector that he should facilitate the entry, if the formal requirements for entry had been met. The period for which Mr Fellowes and Mr Stott were delayed in entering the Site was of the order of 30 minutes.

68    The respondents admit that, by his response to Mr Fellowes and Mr Stott, Mr McCondichie had hindered and obstructed them from investigating the suspected contraventions of the WHS Act for about 30 minutes and that his conduct in this respect had been intentional. The CFMMEU does not allege any contravention by Kyren arising from Mr McCondichie’s conduct on 31 January 2019.

The maximum penalties and applicable principles

69    The maximum penalty for a contravention of each of ss 501 and 502(1) is 60 penalty units and 300 penalty units for a corporation. At the time of the contravening conduct, the maximum penalty applicable to an individual was $12,600 and $63,000 for a corporation.

70    Section 546 provides that the Court is to impose the penalty which it considers “appropriate”. The Court fixes the penalty having regard to the fact that the purpose of a civil penalty is primarily, if not wholly, to achieve deterrence: The Agreed Penalties Case at [54]-[55]. It is sometimes said that, by imposing the penalty, the Court seeks to put a price on contraventions which is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene. That is to say, both specific and general deterrence are important considerations: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 (ABCC v CFMEU) at [98]. Sometimes this is expressed by saying that the penalty should not be regarded by the contravenor or others as simply “an acceptable cost of doing business”: Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at [66].

71    The principles which guide the Court in fixing appropriate penalties have been stated in numerous authorities, including by the Full Court (Dowsett, Greenwood and Wigney JJ) in ABCC v CFMMEU at [87]-[107]. It is sufficient to refer to the statement of principles by the Full Court (Allsop CJ, White and O’Callaghan JJ) in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 on which counsel for the CFMMEU relied:

[20]    Relevant factors in the overall assessment of penalty were helpfully listed by French J in CSR. They have been adopted in many cases. For present purposes, they can be restated as follows: the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition.

[21]    The seriousness of the contravention and other features of the conduct which may be seen as relevant to it ... find their place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty …

[22]    The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions ... Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct.

(Citations omitted)

72    The maximum penalties should be reserved for the worst kinds of contraventions.

Expressions of regret and contrition

73    Mr McCondichie expressed regret for his conduct on both days and accepts now that he should have taken steps on both days to facilitate the immediate entry of Mr Fellowes and Mr Stott, once he had ascertained that they had a lawful right of entry. He deposed that he now understands that he is required to facilitate entry pursuant to lawful rights of entry, regardless of his own belief that there is in fact no risk to health and safety in the conditions under which work has been performed.

74    While I accept that Mr McCondichie’s expressions of regret and contrition are genuine, their value as matters of mitigation is diminished to some extent by his attempt to attribute responsibility for his conduct on 30 January 2019 to the “intimidating” and “aggressive” behaviour from Mr Fellowes and Mr Stott and by his claim that they had “goaded” him into responding in the way he had. While it is plain that the discussion on 30 January 2019 was not civil, my impression is that much of its tone was attributable to Mr McCondichie’s own aggressive attitude prompted by his underlying perception of the CFMMEU as a “militant union” and by his belief that Mr Fellowes and Mr Stott were giving effect to that militancy. As indicated earlier, I consider that he allowed that preconception to colour his attitude to Mr Fellowes and Mr Stott on both days.

75    Mr McCondichie’s expressions of regret and contrition also seem a little belated. An inference that this is so can be drawn from the content of an unsolicited voicemail message which he left on Mr Fellowes mobile phone on 2 July 2019 (shortly after being served with the current proceedings). In that voicemail message, Mr McCondichie said:

Clarrie, it’s your old fuckin mate Donald from the Kyren Group. Oh my goodness, I’m going to have to dust my suit off I believe, if you guys want to go to court. That’s excellent. I’ll notify the social media and stuff that I’m going to be there. I’m going to set new precedents for every site manager in Australia man. Alright mate give us a call.

These statements of Mr McCondichie hardly bespeak an attitude of regret and contrition.

76    Mr Fellowes did not respond to Mr McCondichie’s message.

77    Counsel for the CFMMEU emphasised that Mr McCondichie had not proffered any apology to the CFMMEU, to Mr Fellowes or Mr Stott. Contrary to the proposition which seemed to be inherent in this submission, the absence of apology is not an aggravating matter: BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 at [10]; Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040, (2009) 189 IR 304 at [87]; Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 at [87]. Instead, when an apology is made, it can be mitigatory. While it was open to counsel for the CFMMEU to draw attention to the absence of a personal apology, I observe that the proffering of an apology does not seem to be a commonplace feature in the multiple reported decisions concerning the imposition of penalties on the CFMMEU. Nor was there any acknowledgement by Mr Stott of the contribution of his conduct to the events which occurred on 30 January 2019.

78    On my assessment, Mr McCondichie’s involvement in these proceedings has been a salutary experience for him. I accept his evidence that he has since completed a training course conducted by Master Builders SA concerning the exercise of rights of entry and that he has sought to improve his knowledge about those rights. I also accept the evidence concerning the process adopted by Mr McCondichie, and through him, by Kyren when dealing with notices of entry by union officials.

79    I mention that a good deal of the affidavit evidence of the respondents was directed to showing the attention which Kyren gives to matters of safety. While the activities of Kyren in that regard appear commendable, I have not considered it necessary to make detailed findings about them. That is because the matter before the Court is not an issue of safety but the respondents’ non-compliance with the law concerning rights of entry.

Consideration

80    There are undoubtedly aspects of the present case which should be regarded as serious. Mr Fellowes and Mr Stott had observed matters which gave rise reasonably to concerns about the safety of some practices adopted on the Site. They wished to investigate those matters and to do so in the manner authorised by the law. Their attempts to do so were frustrated by Mr McCondichie’s conduct. Not only did he deliberately refuse their respective entries on 30 January 2019, he did so in a manner which was dismissive of the very regime established under the WHS Act and the FW Act for the lawful entry of union officials in circumstances like those pertaining in 30 January 2019. It is my view that Mr McCondichie did so because he was not going to allow himself to be “bettered” by the CFMMEU officials and without regard to the entitlements and obligations under the WHS Act and the FW Act. Mr McCondichie’s lack of respect for the statutory regime on 30 January 2019 was made plain by his statement, “that’s what I think of your permits” as he ripped the notice of entry into pieces. It was also made plain by his characterisation of Mr Stott’s statement on 31 January 2019 that the two men were there under s 117 of the WHS Act as “part of the spiel that they give you”. This was so despite the training and experience Mr McCondichie had had before January 2019 with respect to the exercise of “union rights of entry” and despite his awareness that, if the requirements of a valid notice of entry had been satisfied, he could not refuse entry.

81    The seriousness of the conduct is emphasised by the senior position held by Mr McCondichie. As counsel for the CFMMEU noted, he was not “a junior or low-level manager”. The deliberate and disdainful nature of his conduct on both days adds to the seriousness.

82    The seriousness of Mr McCondichie’s conduct is also indicated by its effect on the regime for the ensuring of safety on the Site. I refer in this respect to the scheme set out earlier in these reasons. Mr McCondichie did not just prevent Mr Fellowes and Mr Stott from coming on to the Site: he precluded them from giving attention to important issues of safety.

83    Nevertheless, the submission of counsel for the CFMMEU that the contravening conduct on 30 January 2019 “approached the worst category of case” cannot be accepted. To do so would not make appropriate allowance for the contribution of Mr Stott to the escalation of the aggression on 30 January 2019. Nor would it make appropriate allowance for the clean records of both Kyren and Mr McCondichie. That is a matter which is very much to their credit given the long history both have had in the building industry and in dealing, on multiple occasions, with Union rights of entry.

84    It follows that the CFMMEU submission that a penalty in the range of 70-85% of the maximum should be imposed on both Mr McCondichie and Kyren in respect of the contravention on 30 January 2019 cannot be accepted. I take the same view with respect to the CFMMEU submission that a penalty in the range of 50-60% of the maximum should be imposed in respect of the contravention on 31 January 2019.

85    But nor do I accept the respondents’ submission that the contraventions on 30 January 2019 are properly categorised as being towards the lower end of objective seriousness. To do so would not reflect the serious aspects of the contravention to which I referred earlier.

86    I am not willing to accept the submission of counsel for the respondents that Mr McCondichie was, on 31 January 2019, acting under the genuine, but mistaken, belief that it was open to him to ask the officials to return later to undertake the Site inspection. Such a belief is inconsistent with the long experience he claimed to have had with rights of entry. I think it more likely that Mr McCondichie was again giving expression to his view about the militancy of the CFMMEU, his intention to exert control over the entry and to his own convenience.

87    I take into account that Mr Fellowes and Mr Stott were delayed on 31 January 2019 for only a relatively short period (30 minutes).

88    The CFMMEU accepted that the respondents are entitled to a credit for their cooperation in present proceedings. That cooperation is evident in the admissions which the respondents made to the allegations in the Amended Statement of Claim and in the manner of their conduct in the proceedings more generally. The extent of the reduction on this account is, however, reduced by reason that the respondents’ case on mitigation meant that some of the trial which would not have been required based on their formal admissions became necessary by reason of the affidavits of Mr McCondichie and Mr Samaras. Furthermore, I have rejected significant aspects of the evidence advanced by Mr McCondichie in mitigation.

89    As I have noted, neither respondent has been found to have contravened a provision in the FW Act previously. That is a matter which is very much to their credit. As noted earlier, I consider that these proceedings have been salutary for Mr McCondichie.

90    I accept that it is probable that Mr McCondichie will not feel the sting of the penalties imposed on him because it is likely that they will be paid by Kyren.

91    I accept that Kyren is a well-resourced entity and well able to afford the penalties which the Court will impose.

Conclusion

92    The respondents did not oppose the making of the declarations concerning the contraventions sought by the CFMMEU. I am satisfied that the declarations are appropriate as they will serve both denunciatory and educational purposes.

93    There will be a penalty imposed on Mr McCondichie and Kyren in respect of the contraventions of s 501 on 30 January 2019 of $3,800 and $15,000 respectively. There will be a penalty of $1,800 imposed on Mr McCondichie in respect of his contravention of s 501(2) on 31 January 2019.

94    The respondents did not oppose an order pursuant to s 546(3)(b) that these penalties be paid to the CFMMEU and there will be an order to that effect.

Associate:

Dated:    23 September 2020