Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) [2020] FCA 1727

ORDERS

THE COURT ORDERS THAT:

1.    The application as against the third respondent be dismissed.

2.    The matter be listed for further hearing on a date to be fixed regarding the relief that should be granted as against the first and second respondents in light of the court’s reasons for judgment.

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

REASONS FOR JUDGMENT

SNADEN J:

Part 1: Summary

1.1 Introduction

1    Part 3-4 of the Fair Work Act 2009 (Cth) (the “FW Act”) is entitled “right of entry”. Amongst other things, it regulates the exercise of rights conferred upon certain trade union officials to enter premises for various purposes. For the most part, those rights are created and conferred by the provisions of pt 3-4. Some, however, are created and conferred by state occupational health and safety statutes. It is with rights of that nature—and with the ways in which pt 3-4 of the FW Act constrains their exercise—that the present matter is concerned.

2    In this matter, two employed officials of a large and well-known trade union are accused of having exercised rights of entry conferred upon them by state legislation in a way or ways prohibited by pt 3-4 of the FW Act. The conduct in question is said to have been engaged in in April and May of 2017, in connection with a large road construction venture known (at least colloquially) as the Monash Freeway upgrade project (hereafter, the “Project”). There are four episodes that took place over those months that are relevant, the particulars of which are outlined in detail below.

3    I am satisfied that some of the contraventions that are alleged—specifically those relating to the first and last of the four relevant episodes—are made out. The remainder are not. These reasons explain why I have arrived at those conclusions.

4    Pursuant to orders made by a previous docket judge, the matter proceeded to trial on “…all matters other than relief”. In light of the findings recorded below, it will be necessary for the matter to proceed to further hearing to determine what orders should be made by way of relief.

1.2 The parties

5    The applicant (hereafter, the “Commissioner”) is the holder of a statutory office created by s 15 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). His standing to prosecute the present action is not in question. As the summary above recites, it pertains to conduct that took place in April and May of 2017 at various locations associated with the Project. Those locations were, at those times, all occupied by Fulton Hogan Construction Pty Ltd (hereafter, “Fulton Hogan”), which was the principal contractor in charge of constructing the works to which the Project related. Fulton Hogan was contracted to that end by its client, a statutory emanation of the state of Victoria known as “VicRoads”.

6    As the name might suggest, the Monash Freeway upgrade project involved works along and in the vicinity of the Monash Freeway in Melbourne. Although, no doubt, infinitely more complicated in practice, the core of those works involved the addition of lane capacity along that freeway corridor, in particular between Warrigal and Koo Wee Rup Roads, south-west of Melbourne. Those works were divided amongst multiple physical locations along the length of the broader Project site.

7    The second respondent (hereafter, “Simpson”) was, at all relevant times, employed by and as an organiser of the first respondent (hereafter, the “Union”). The third respondent (hereafter, “Clark”) was, at all relevant times, employed by the Union as a safety officer. The Union is a large and well-known employee organisation registered as such pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). At all material times, it represented, or was eligible to represent, the industrial interests of employees who performed work associated with the Project.

8    Fulton Hogan employed a number of people in connection with the Project. Of relevance in the present matter are the following, namely:

(1)    Mr Brendan Malone (hereafter, “Malone”), who was employed in the role of Project Safety Manager;

(2)    Mr Matthew Inkster (hereafter, “Inkster”), who was employed as Fulton Hogan’s Major Projects HR/IR Manager;

(3)    Mr Gordon Langley (hereafter, “Langley”), whom Fulton Hogan employed in the role of General Superintendent for the Project;

(4)    Mr Mark Sullivan (hereafter, “Sullivan”), whom Fulton Hogan employed as a site supervisor in connection with the Project; and

(5)    Ms Janice Virant-Bell (hereafter, “Virant-Bell”), who was employed in the role of Safety Advisor.

1.3 The four relevant incidents

9    The conduct at the heart of the present matter took place over four discrete episodes. Although there is much in the factual material before the court that is contested, the following summaries of each of those four incidents emerge from what is not in contest.

1.3.1 The Eumemmering Creek bridge lift

10    The first incident took place in the late evening of Saturday, 29 April and early morning of Sunday, 30 April 2017 at or around the point at which the Monash Freeway crosses Eumemmering Creek, in Endeavour Hills, Victoria. At that point in time, the Monash Freeway proceeded across Eumemmering Creek atop two bridges: one for the two east- or out-bound traffic lanes; and another, slightly to the south of the first, for the two west- or city-bound lanes. Each was separated from the other by a void. As part of the Project, a third lane was to be (and has since been) added to each of the east- and west-bound corridors. That was to be (and has now been) achieved by constructing a third bridge to fill the void that separated the two existing bridges, across which each of the existing carriageways (city-bound and out-bound) could be widened.

11    The erection of that third bridge required the installation of support pylons in Eumemmering Creek, on top of which were to be fixed (and now are fixed) “cross-heads”: large, pre-fabricated concrete structures that would (and now do) sit atop those pylons and serve as the supports upon which the widened roadway would eventually (and now does) sit. Two such cross-heads were required: one towards the city side of the creek and the other towards the opposite side.

12    The installation of those cross-heads took place across the evening of Saturday, 29 April and early morning of Sunday, 30 April 2017. The out-bound lanes of the freeway were closed to public traffic to allow those works to occur.

13    In anticipation of those works (perhaps amongst others), a work site (hereafter, the “Eumemmering Creek Site”) was established on (or partly on) the city side of Eumemmering Creek, in the centre median that divided the in-bound and out-bound lanes of the freeway. In the evening of Saturday, 29 April through until the morning of Sunday, 30 April 2017, that site consisted at least of:

    a car park, which was situated at road level in the centre median area;

    a “laydown” area on the creek side of that carpark (where equipment and materials were stored);

    a ramp that led down from that laydown area to the city-side (or western) shore of the creek (hereafter, the “Creek Access Ramp”); and

    the out-bound lanes of the freeway itself on (and immediately adjacent to) the existing out-bound road bridge.

14    Additionally, two barges were positioned in the creek, from which a crew of workers would (and did) work to install the cross-heads onto the support pylons (which, by 29 April 2017, had already been erected in the creek). A smaller “tinny” craft was used to shuttle workers between the barges and the creek’s city-side shore (which was accessible to workers via the Creek Access Ramp).

15    Vehicular access to the Eumemmering Creek Site was gained via the in-bound lanes of the freeway. To the west of the creek, a “slip lane” was constructed on the centre median side of the freeway’s in-bound lanes. Once accessed, it circled right 180 degrees back towards Eumemmering Creek and deposited visiting vehicles at the car park area described above. The slip lane was adorned with signage indicating that it led to a construction site and that only authorised personnel should proceed through. There was also a physical gate obstructing passage beyond a certain point, although it appears not to have been in use on the night of Saturday, 29 April 2017.

16    The installation of the cross-heads required that they be lifted by means of a large mobile crane from road (or bridge) level onto the pylons upon which they would (and now do) permanently sit. The crane was, to that end, positioned on the existing out-bound road bridge above the creek.

17    Before the cross-heads could be lifted onto the support pylons, it was necessary to properly configure the crane. That involved positioning it at the location from which it would conduct the lifts, securing it into that position by means of its “outriggers” (that is, pylons that extended from the four corners of the vehicle, at the end of each of which were jacks that, in concert, lifted the crane’s wheels from the ground to keep it secure and level) and attaching “counterweights” to it to ensure that it would not topple whilst lifting the weight of the cross-heads.

18    On the night of Saturday, 29 April 2017, then, the Eumemmering Creek Site works were concentrated in two areas: the creek itself and the out-bound roadway above it. Both areas were accessible from the “laydown” area described earlier: the Creek Access Ramp adjacent to that area led down to the creek’s western shore; and a walkway at (or near) the top of that ramp led along the southern side of the out-bound roadway bridge (to where the crane was positioned). Access from that walkway to the out-bound traffic lanes was achieved via a set of stairs, which led over (that is to say up over and then back down on the other side of) a barrier that separated the walkway from the roadway.

19    Simpson attended at the Eumemmering Creek Site between approximately 11:00pm on Saturday, 29 April and 4:00am on Sunday, 30 April 2017. The purpose of his visit was to investigate his suspicions that work was being, or perhaps would be, undertaken there unsafely or otherwise in contravention of the requirements of the Occupational Health and Safety Act 2004 (Vic) (hereafter, the “OHS Act”) or regulations made under it.

20    Whilst in attendance at the Eumemmering Creek Site, Simpson sought to initiate discussions of a safety-related nature with management representatives of Fulton Hogan, as well as directly with at least some of the construction workers who were present there. For much of his visit, he was stationed at (or towards) the top of the Creek Access Ramp, at or adjacent to some water-filled barriers that had been established there. At one point during his visit, he ventured up onto the out-bound roadway, where the mobile crane was positioned, in order to initiate a discussion with the crane driver.

21    It is not in dispute that, for the duration of his attendance at the Eumemmering Creek Site, Simpson was exercising a right or rights conferred upon him by the OHS Act. It is upon the manner in which he did so that the first of the four episodes relevant in this matter turns.

1.3.2 The 4 May truck crash

22    The Project incorporated a work area situated along the Monash Freeway near Stud Road, in Dandenong North. That work area was located in the centre median that divided the two (in-bound and out-bound) carriageways. Access to it was via a slip lane that emerged from the outside lane of the freeway’s city-bound carriageway at what was known as “gate 24”. Save obviously for the point at which it merged with that lane, the slipway—and the work area to which it led (hereafter, the “Gate 24 Site”)—was separated from the freeway lanes by concrete crash barriers.

23    On the morning of Thursday, 4 May 2017, a truck travelling city-bound along the Monash Freeway clipped a crash barrier at or near the entrance to gate 24, entered the slipway and rolled onto its right side. Simpson and Clark, having been alerted to the accident, decided that they would drive out to gate 24 to investigate. It is not in dispute that their attendance at that location on that day involved their exercising a right of entry conferred upon them by the OHS Act.

24    Whilst at the Gate 24 Site, Clark was involved in an altercation with Langley. The particulars of that altercation (hereafter, the “Gate 24 Incident”) are the subject of dispute.

1.3.3 The 4 May excavator incident

25    At approximately (or perhaps a little after) noon on the same day—after the Gate 24 Incident had transpired—Simpson and Clark headed back onto the Monash Freeway, city-bound. Whilst driving between Eastlink and Wellington Road in Mulgrave, they noticed some works being undertaken on the out-bound carriageway. The left-hand lane of that out-bound carriageway had been closed to traffic, and a crew of workers was undertaking some gantry protection works—that is, works to protect (from vehicular collision) the uprights of a gantry from which road or other signage hung above the freeway. Those works were taking place in or adjacent to the existing, left-hand emergency lane and required the use of an excavator.

26    Upon noticing those works, Simpson and Clark decided to go and inspect them. Upon pulling their vehicle up to the area at which they were working (hereafter, the “Gantry Works Site”), Simpson and Clark introduced themselves to some of the workers and asked to speak with their supervisor. Sullivan was called and arrived a short time later.

27    To the north-west (or city-side) of the Gantry Works Site, the left-hand lane of the out-bound carriageway had been closed to traffic. The freeway speed limit in and around the area had been reduced to 60 kilometres per hour. Bollards were in place to signal to traffic that the left-hand lane was not in use in the vicinity of the work and a truck-mounted attenuator—essentially a crash barrier attached to a truck—was positioned on the city-side of where the gantry works were situated to prevent errant vehicles from crashing into the work area. To the left of the closed left-hand lane was an emergency lane and to the left of that was an existing concrete crash barrier. The excavator was situated in the emergency lane.

28    Whilst at the Gantry Works Site, Simpson and Clark raised concerns about the measures that were in place to protect workers from nearby live traffic. Those concerns were raised initially with Sullivan and, later, with Malone and two representatives of WorkSafe Victoria, who had been called to (and later attended) the site. Clark was provided with a copy of Fulton Hogan’s traffic management plan, which outlined the measures that were to be taken to ensure that the works could be completed safely. Although the works were proceeding in accordance with that plan, Clark nonetheless suggested that the excavator could more safely perform its earthmoving work from behind the existing concrete crash barrier (rather than from the left-hand emergency lane). That was agreed to.

29    There was then a discussion between Simpson and Clark about the state of the excavator. Although the circumstances leading to it are disputed, Simpson and Clark resolved to issue to Fulton Hogan a notice under s 88(1) of the OHS Act in respect of the excavator (hereafter, the “Excavator Notice”). What then followed was an inspection of the machine and its logbooks, and a discussion with its operator, during which work at the area was postponed for somewhere in the order of 15 minutes (and perhaps slightly longer). That process uncovered a fire extinguisher present within the machine that was past its use-by date. The fire extinguisher was replaced and, ultimately, the excavator resumed its work. Simpson and Clark left the area at approximately 2:00pm and the gantry protection works were completed prior to 3:00pm, when Fulton Hogan was obliged to reopen the left-hand lane of the freeway.

30    Again, it is not in contest that, in attending at the Gantry Works Site, conducting the inspection of the excavator and its logbooks, and speaking to the excavator’s operator, Simpson and Clark were both exercising or seeking to exercise rights conferred upon them by the OHS Act.

1.3.4 The 9 May barrier inspections

31    The last of the four episodes relevant to this matter occurred on 9 May 2017, a matter of days after the truck crash at gate 24. Simpson attended at Fulton Hogan’s Project office and informed Inkster that he wished to inspect the exclusion (or “no-go”) zones behind the Project’s crash barriers.

32    Along the corridor (or at least certain parts of the corridor) in which the Project works were undertaken, crash barriers were established to separate work areas from freeway traffic. The purpose of those barriers was to prevent vehicles from intruding upon work areas in the event of an accident. Behind—that is to say, on the working (or non-traffic) side of—those barriers, Fulton Hogan established exclusion (or “no-go”) zones: that is, buffer spaces into which personnel were not permitted to venture. In the event of an accident involving a crash barrier, those zones were designed to ensure that any resultant movement of the barrier occurred sufficiently well away from those working nearby. The “no-go” zones were marked by bollards, to which was affixed high-visibility, roped safety flagging.

33    On 9 May 2017, Simpson indicated his wish to check the depth of the exclusion zones throughout the entire Project. That was met with a degree of scepticism by Inkster, who pointed out that, if he wished to exercise a right of entry in respect of any of the particular sites along the Project corridor, Simpson would need, first, to identify which ones; and, second, to have formed a reasonable suspicion in respect of each that there was some safety concern in play.

34    Simpson then issued Inkster with a “notice of suspected contravention” under s 88 of the OHS Act. It pertained to the Gate 24 Site, which Simpson and Clark had attended a few days earlier. Under the heading “Description of the Suspected Contravention of the OHS Act…”, Simpson wrote (errors original):

the no-go zones behind the crash barriers being wide enough according to manufacturers\engineers specifications

35    In answer to the question posed on that notice, “Why do you consider these matters to be a contravention of health and safety?”, Simpson wrote:

if the no-go zone is not wide enough workers in the area may be at risk if a vehicle crashes through causing serious harm or death

36    Simpson, Inkster and Langley then drove to the Gate 24 Site, arriving at approximately 8:15am. Simpson then proceeded to measure the width of the exclusion (or “no-go”) zones adjacent to the crash barriers there. As he proceeded along the barriers, Simpson apparently came to the point at which the Gate 24 Site bordered the adjacent work area, known as gate 26. Inkster told Simpson that he could not proceed into gate 26, as that area had not been the subject of his notice. Simpson ignored Inkster’s indication and continued to measure the exclusion zone into the gate 26 site. That continued through until approximately 9:00am, whereupon the trio returned to Fulton Hogan’s Project office.

37    Upon their return to the Project office, Simpson told Inkster that he wished to inspect the exclusion zones at “gate 22”. Inkster informed him that there were no exclusion zones at that location because nobody was working there. Simpson then indicated that he wished to inspect the exclusion zones at “gate 20” and “gate 18”, apparently unaware that no such areas existed. Ultimately, Simpson fixed upon a gate that did exist: gate 3. He wrote up another “notice of suspected contravention” document pertaining to that location in terms materially identical to the document prepared in respect of the Gate 24 Site.

38    Simpson, Inkster and Langley then drove to the “gate 3” area of the Project (hereafter, the “Gate 3 Site”), whereupon Simpson proceeded to measure the width of the exclusion zones there. As had occurred at the Gate 24 Site, Simpson eventually made his way to a point at which the Gate 3 Site ceased and a new designated gate area began. There then followed an exchange between Simpson and Inkster that is the subject of evidential conflict (the particulars of which are explored in detail below). It is upon that exchange—and, in particular, the conduct in which Simpson engaged during it—that the fourth of the four episodes relevant in this matter (hereafter, the “Gate 3 Incident”) turns. It is not controversial that, throughout the course of measuring exclusion zones on that day, Simpson was exercising or seeking to exercise rights under the OHS Act.

Part 2: Legislative framework

39    Two enactments assume prominence in this matter: the FW Act and the OHS Act. It is convenient to separate the analysis of the two.

2.1 The Occupational Health and Safety Act 2004 (Vic)

40    Section 87 of the OHS Act is (and, at times material to this matter, was) in the following terms:

87    Entry powers of authorised representatives

(1)    This section applies if an authorised representative of a registered employee organisation reasonably suspects that a contravention of this Act or the regulations has occurred or is occurring at a place that is a workplace and any of the following paragraphs applies—

(a)    the suspected contravention relates to or affects work that is being carried out by one or more members of the registered employee organisation or relates to or affects any of those members;

(b)    the suspected contravention relates to or affects work that is being carried out by one or more persons whose employment is subject to a collective agreement, a certified agreement or an enterprise agreement, or relates to or affects any of those persons, and that agreement applies to the registered employee organisation;

(c)    the suspected contravention relates to or affects work that is being carried out by one or more persons—

(i)    who are eligible to be members of the registered employee organisation; and

(ii)    whose employment is not subject to a collective agreement, a certified agreement or an enterprise agreement which applies to any registered employee organisation—

or relates to or affects any of those persons.

Note

Place is defined in section 5 as including a car, truck, ship, boat, airplane and any other vehicle.

(2)    The authorised representative may enter the place, during working hours, for the purpose only of enquiring into the suspected contravention.

(3)    Nothing in this section requires an authorised representative of a registered employee organisation to disclose to another person the names of persons who are members of that organisation.

(4)    In this section—

certified agreement means a pre-reform certified agreement that continues in existence as a transitional instrument under the Fair Work Transition Act;

collective agreement means a workplace agreement that is a collective agreement that continues in existence as a transitional instrument under the Fair Work Transition Act;

enterprise agreement means an enterprise agreement made under the Commonwealth Fair Work Act.

Note

Section 90 provides certain limitations on the exercise of the powers conferred by this section.

41    That the Union was (and is) a registered employee organisation is not in contest. Similarly, it is not controversial that each of Simpson and Clark were, at relevant times, authorised representatives of the Union within the meaning attributed to that phrase by the OHS Act. The areas within the Project that are of relevance in this matter—that is, the Eumemmering Creek Site, the Gate 24 Site, the Gantry Works Site and the Gate 3 Site—were each “workplace[s]”: OHS Act, s 5(1). It is not controversial that at least one of the three preconditions listed in s 87(1) of the OHS Act was satisfied throughout all of the occasions of relevance to this matter.

42    Section 88 of the OHS Act concerns what an authorised representative must do upon gaining entry to a place under s 87(2). The section is (and was) in the following terms:

88    Announcement on entry

(1)    Immediately on entering a place under section 87, an authorised representative of a registered employee organisation must take all reasonable steps to give a notice to and produce his or her entry permit for inspection by—

(a)    the employer who has, or a person who on behalf of the employer has, the management and control of the work at the place; and

(b)    if members of a designated work group are affected in any way by the entry, a health and safety representative for that group.

(2)    The notice must be in the form approved (in writing) by the Authority and include a description of the suspected contravention.

43    Again, it is not controversial that each of Simpson and Clark was, at relevant times, the holder of an “entry permit” issued pursuant to pt 8 of the OHS Act.

44    Section 89 of the OHS Act is headed “Powers on entry”. It lists what authorised representatives are entitled to do upon gaining entry to a place under s 87(2). It is (and was) in the following terms:

89    Powers on entry

(1)    An authorised representative of a registered employee organisation who enters a place under section 87 may do any of the following but only to the extent that it is reasonable for the purpose of enquiring into the suspected contravention—

(a)    inspect any plant, substance or other thing at the place;

(b)    observe work carried on at the place;

(c)    consult with one or more employees (with their consent) at the place who are members or are eligible to be members of the registered employee organisation;

(d)    consult with any employer at the place about anything relevant to the matter into which the representative is enquiring.

(2)    The authorised representative must produce his or her entry permit for inspection if asked to do so when exercising any of the powers under subsection (1).

(3)    If, while the authorised representative is at the place, an issue arises between the authorised representative and the employer who has, or a person who on behalf of the employer has, the management and control of the work at the place about the exercise of any of those powers, either of those persons may ask the Authority to arrange for an inspector to attend at the place to enquire into the issue.

(4)    The Authority must ensure that an inspector attends the place as soon as possible after the request is made and the inspector—

(a)    must as soon as possible enquire into the issue; and

(b)    may perform any of his or her functions or exercise any of his or her powers under this Act that the inspector considers reasonably necessary in the circumstances.

45    The reference in s 89 to the “Authority” is a reference to the Victorian WorkCover Authority, a statutory body established under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

2.2 The Fair Work Act 2009 (Cth)

46    Part 3-4 of the FW Act regulates rights of entry exercisable by “permit holder[s]”. Various such rights are conferred by its provisions; and their exercise—and the exercise of certain others conferred by other sources—is conditioned upon the satisfaction of various requirements. It is not controversial that each of Simpson and Clark was a permit holder at the times material to this proceeding.

47    Of relevance in this matter are divs 3 and 4 of pt 3-4 of the FW Act, which contain a number of relevant constraints upon the exercise of the powers conferred by ss 87(2) and 89 of the OHS Act. In summary, div 3 of pt 3-4 regulates the exercise of “State or Territory OHS right[s]”. It is not controversial that the right conferred by s 87(2) of the OHS Act—that is, the right of authorised union representatives to enter workplaces—is and was a “State or Territory OHS Right” for the purposes of pt 3-4 of the FW Act: FW Act, s 494(2).

48    State or Territory OHS rights are exercisable only by “permit holder[s]”: FW Act, s 494(1). A permit holder must not exercise such a right unless he or she produces his or her permit for inspection when requested: FW Act, s 497. Of particular importance in this matter is s 499 of the FW Act, which relevantly provides (and provided) as follows:

499 Occupational health and safety requirements

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.

49    Division 4 of pt 3-4 of the FW Act is headed “Prohibitions”. It contains a series of provisions that prohibit various species of conduct relating to the exercise of rights of entry. Of relevance presently is s 500, which relevantly provides (and provided) as follows:

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.

50    Each of ss 499 and 500 of the FW Act is a “civil remedy provision”: FW Act, s 539(1). This court has jurisdiction to make any order that it considers appropriate if satisfied that a person has contravened either section: FW Act, s 545(1). Such orders may include orders requiring the payment of pecuniary penalties (subject to identified maximums): FW Act, s 546.

51    Section 550 of the FW Act deals with accessorial liability for contraventions of civil remedy provisions. It 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.

52    Section 793 of the FW Act attributes, for the purposes of the FW Act, certain conduct and states of mind to bodies corporate (such as the Union). By s 793(1), such bodies are deemed, for the purposes of the FW Act, to have engaged in conduct that was, in fact, engaged in by their officers, employees or agents (acting in their actual or apparent capacities as such). By s 793(2) of the FW Act (and insofar as it is necessary for the purposes of the FW Act to establish it), the state or states of mind with which those officers, employees or agents engaged in such conduct is also deemed to have been the state of mind of the body corporate. “State of mind” is defined to include a person’s knowledge, intent, opinion, belief or purpose: FW Act, s 793(3).

Part 3: The competing cases

53    The Commissioner seeks orders in the form of declarations and penalties to remedy contraventions of ss 499 and 500 that, he alleges, the respondents committed over the four episodes around which this proceeding revolves. It is convenient to analyse the competing cases by reference to each of those four events.

3.1 The Eumemmering Creek bridge lift

54    Insofar as concerns Simpson’s conduct at the Eumemmering Creek Site in the evening of Saturday, 29 and early morning of Sunday, 30 April 2017, the Commissioner alleges that Simpson contravened s 499 of the FW Act by exercising a State or Territory OHS Right whilst in defiance of reasonable requests made by or on behalf of Fulton Hogan that he adhere to applicable occupational health and safety requirements. There were two such requirements with which it is alleged that Simpson was asked to but did not comply, both of which were said to be enshrined at least within Fulton Hogan’s written “Occupational Health and Safety Plan” (to which reference is made below). The first was that he be dressed in particular personal protective equipment (or “PPE”), including safety glasses and full-length, white reflective overalls. The second was that he be escorted by a representative of Fulton Hogan at all times.

55    The Commissioner alleges that Simpson failed to comply with those requirements. Further, he maintains that Simpson refused to leave the site, despite being requested to. In response to that refusal, it is alleged that Fulton Hogan representatives resorted to calling Victoria Police. Notwithstanding that police intervention (the detail of which is the subject of exploration below), Simpson did not leave the Eumemmering Creek Site.

56    Additionally, the Commissioner alleges that, whilst exercising a State or Territory OHS right at the Eumemmering Creek Site on 29 and 30 April 2017, Simpson acted in an improper manner in contravention of s 500 of the FW Act. That improper conduct is alleged to have taken the form of his contravening s 499 of the FW Act and his refusal to leave the Eumemmering Creek Site when asked to; and to have arisen by reason of the fact that several Fulton Hogan staff were diverted from their work tasks on the night to address his presence.

57    Simpson denies having contravened either of ss 499 or 500 of the FW Act by his conduct at the Eumemmering Creek Site on 29 and 30 April 2017. Those denials are multi-faceted and it is important to understand how they are put.

58    Simpson and the Union accept that there were occupational health and safety requirements that applied to the Eumemmering Creek Site at the time that Simpson was present there. They accept that one such requirement was that all present at the site wear protective safety glasses. They deny that there was any requirement at that time for visitors—or at least anybody not undertaking “night works”—to wear full-length, white protective overalls. They accept that there was a requirement that visitors to the site be escorted at all times by Fulton Hogan personnel, although they maintain that that was an obligation imposed upon Fulton Hogan personnel, rather than visitors.

59    The respondents also accept that, on the night in question, Simpson was told that he was not permitted to:

(1)    be or remain at the Eumemmering Creek Site without full-length, white protective overalls; or

(2)    move about the site unless escorted by Fulton Hogan personnel.

They deny that Simpson was asked or told that he needed to wear safety glasses, or was otherwise asked to leave the site for want of wearing any.

60    In any event, the respondents maintain that any request made of Simpson to:

(1)    wear full-length, white protective overalls (or to leave the site in the absence of having any); or

(2)    be escorted at all times whilst present at the site by a Fulton Hogan representative,

was not reasonable in the circumstances that endured.

61    In particular, the respondents maintain that any request made of Simpson that he wear full-length, white protective overalls (or that he leave the site in the absence of having any) was not reasonable because:

(1)    he was wearing an orange high-visibility jacket that complied with the minimum standards stipulated in what is known as the Australian and New Zealand Standard 4602.01 (further reference to which is made below);

(2)    Fulton Hogan refused or was unable to provide him with full-length, white protective overalls;

(3)    the areas of the Site in which Simpson located himself were well-lit;

(4)    Simpson was not undertaking any activities that called for the wearing of full-length, white protective overalls;

(5)    full-length, white protective overalls are not typically required for night-time road construction works of the kind that were in play at the time; and

(6)    had he complied with the request or requests, the exercise of his right of entry would necessarily have been impeded.

62    Further, the respondents contend that the request made of Simpson that he be escorted by Fulton Hogan personnel at all times whilst present at the Eumemmering Creek Site was not reasonable because that requirement “…is directed (alternatively, principally directed) at what Fulton Hogan staff must do (rather than what a visitor must do), and there is no requirement in it as to the proximity between the visitor and the Fulton Hogan staff member”.

63    The respondents accept that, whilst in attendance at the Eumemmering Creek Site, Simpson did not wear full-length, white reflective overalls. They do not, however, accept that he was not relevantly escorted whilst there.

64    The respondents also do not accept that Simpson acted improperly whilst in attendance at the Eumemmering Creek Site. They maintain that, even if it is established that Simpson contravened s 499, that is insufficient in and of itself to constitute conduct in contravention of s 500. Furthermore, they submit that:

(1)    the amount of time that Fulton Hogan personnel spent on the night responding to Simpson’s presence was not material;

(2)    it was the role of those Fulton Hogan personnel who responded to Simpson’s presence on the night to deal with exercises of rights of entry; and

(3)    there was, in any event, no detriment imposed upon Fulton Hogan, in that the works were completed without disruption.

The respondents, pointing to those circumstances, submit that Simpson’s conduct at the Eumemmering Creek Site did not rise to the standard of impropriety to which s 500 of the FW Act is directed.

3.2 The Gate 24 Incident

65    The Gate 24 Incident is factually and legally straightforward. The Commissioner alleges that, whilst at the gate 24 site (following the 4 May truck accident that occurred there), Clark and Langley were involved in a physical altercation. Specifically, it is alleged that, in response to an attempt by Langley to take a photograph of Clark’s entry permit on his (Langley’s) mobile telephone, Clark grabbed Langley’s telephone out of his hand and threw it onto the ground.

66    Clark disputes that factual synopsis. He maintains that he did not snatch Langley’s phone and throw it to the ground. He accepts that there was an altercation and that it began with Langley’s attempt to photograph his (Clark’s) entry permit. Clark maintains that he told Langley that he (Langley) was not permitted to photograph the permit, and that he snatched the permit away from Langley as he attempted to take (or, perhaps, shortly after he took) a photograph of it. Langley’s response, so Clark maintains, was to tell Clark that he (Langley) could take a photo of whatever he liked, at which point he proceeded to point his phone directly at (and in close proximity to) Clark’s face. As Langley manoeuvred his phone up into Clark’s face, Clark says that he (Clark) raised his hand defensively, at which point it came into contact with Langley’s hand. As a result of that contact, Langley lost a hold of his phone and it fell to the ground.

67    The only issue to be resolved is which of the two factual synopses should be preferred. If, as the Commissioner alleges, Clark grabbed Langley’s phone and threw it to the ground, there is no contest that he did so in contravention of s 500 of the FW Act. If he did not grab Langley’s phone and throw it onto the ground, then the contravention in which he is alleged to have engaged will not be established.

3.3 The 4 May excavator inspection

68    The allegations arising from the excavator inspection that took place on 4 May 2017 at the Gantry Works Site (hereafter, the “Excavator Inspection Incident”) are also relatively straightforward. The Commissioner alleges that, when they resolved to issue the Excavator Notice, Simpson and Clark did not, in fact, suspect or reasonably suspect that there was anything about the excavator or its use that was contrary to the requirements of the OHS Act (or regulations made thereunder).

69    The Commissioner alleges that Simpson and Clark conducted themselves improperly in contravention of s 500 of the FW Act by:

(1)    inspecting the excavator and its log books despite not reasonably suspecting that there was anything about them that was contrary to, or indicative of a contravention of, the requirements of the OHS Act (or regulations made thereunder);

(2)    using the occasion as an opportunity to speak to the excavator operator about matters of an industrial nature; and

(3)    delaying the completion of the work that was to be performed, which, by its nature, was time-sensitive (as it had to be completed before the scheduled reopening of the left-hand out-bound lane of the freeway).

70    An alternative case is advanced against Clark. If not directly liable for conduct engaged in in contravention of s 500, the Commissioner alleges that Clark was an accessory to Simpson’s contravention of that section and, hence, is deemed to have contravened it himself by dint of s 550 of the FW Act. That is said to arise from his having intentionally participated in or associated himself with Simpson’s conduct, or from his having aided, abetted, counselled or procured Simpson’s contravention of s 500 of the FW Act.

71    Simpson and Clark deny that they issued the Excavator Notice—or otherwise undertook the inspection of the excavator and its log books—without first suspecting that there was something about it that was contrary to the requirements of the OHS Act or regulations made thereunder. Each described the excavator’s physical appearance as suggestive that it had not been properly maintained. They gave evidence—and it is their case—that their decision to inspect the excavator and its log books was the product of that suspicion. They placed some reliance upon the fact that, as a result of their inspection, it was discovered that the fire extinguisher in the machine was out of date.

72    Clark denies that he was party to any discussion with the excavator operator. Simpson accepts that he was but maintains that the discussion pertained to matters of safety. Even if there was some discussion that went beyond matters of safety, Simpson contends that it was not sufficient to constitute impropriety of the kind to which s 500 of the FW Act refers. Although it is accepted that some time was spent inspecting the excavator and its log books—and that, consequently, the excavator was unable to be used whilst those processes completed—Simpson and Clark deny that there was anything improper about that delay.

73    Clark also denies that he was an accessory to (or was otherwise involved in) any contravention by Simpson of s 500 of the FW Act. He contends that the evidence does not establish:

(1)    any knowledge or belief, on his part, that Simpson lacked a reasonable suspicion that there was something about the excavator or its log books that was in contravention of the OHS Act; or

(2)    that he aided, abetted, counselled, procured or was knowingly concerned in or party to the discussion that Simpson had with the excavator operator.

3.4 The Gate 3 Incident

74    The fourth and final aspect of the case that the Commissioner puts also turns upon a relatively straightforward factual contest. It concerns an exchange that occurred between Inkster and Simpson near the boundary of the Gate 3 Site. The Commissioner alleges as follows, namely that:

(1)    upon arrival at that area, Simpson proceeded (as he had sought to) to measure the exclusion (or “no-go”) zones behind the crash barriers in place within the Gate 3 Site;

(2)    as he proceeded city-bound along them, he came to the outer limits of that site;

(3)    at that point, Inkster requested that Simpson stop, as he had not given notice of any suspected occupational health and safety breach pertaining to any work area beyond the Gate 3 Site;

(4)    Simpson did not stop, prompting Inkster to walk in front of him and gesture with his hands raised that he (Simpson) had to stop;

(5)    Simpson ignored Inkster’s direction, walked around him and continued heading in a city-bound direction;

(6)    Inkster again made his way in front of Simpson, and again gestured and told him to stop;

(7)    Simpson ignored Inkster a second time and continued his procession along the crash barrier exclusion (or “no-go”) zone;

(8)    Inkster then, for a third time, positioned himself in front of Simpson, and gestured and told him that he could not proceed;

(9)    Simpson again ignored Inkster and, as he passed for a third time, pushed him, causing Inkster to stumble and fall.

75    The Commissioner alleges that Simpson’s conduct in physically pushing Inkster as he proceeded past him was improper conduct of the kind that s 500 of the FW Act prohibits. Having been engaged in whilst Simpson was exercising rights in accordance with pt 3-4 of the FW Act, it was, so the Commissioner alleges, conduct in which Simpson engaged in contravention of that section.

76    Simpson denies that he pushed Inkster. That is the only issue that the court needs to resolve: it is rightly conceded that, if it occurred at all, the physical aggression that is alleged occurred in contravention of s 500 of the FW Act.

3.5 Liability of the Union

77    The Commissioner contends that all of the conduct that he attributes to Simpson and Clark was engaged in by them in their capacity as employees, officers or agents of the Union; and that, that being so, the Union is deemed also to have engaged in the same conduct by reason of s 793(1) of the FW Act. To the extent that it bears upon any of the issues in dispute, the Commissioner submits that the state or states of mind with which Simpson and Clark engaged in that conduct is, by operation of s 793(2) of the FW Act, taken also to have been the state or states of mind with which the Union is deemed to have engaged in it.

78    By that process of attribution, the Commissioner alleges that the Union is liable as an accessory for—that is to say, is deemed by s 550 of the FW Act to have also committed—each of the contraventions that Simpson and/or Clark committed.

79    Insofar as concerns its accessorial liability, the Union made the following written submission:

On the current state of authorities…the [Union] accepts that it can be held liable as an accessory to any contravention found to have been committed by Mr Simpson and Mr Clark. If those authorities are correct (and the [Union] reserves its position should this matter go further), the [Union] does not contend that, on the facts, their actions and states of mind should not be attributed to the [Union].

80    That was refined in the respondents’ oral closing submissions. The Union accepts not merely that it can be held liable as an accessory to any contraventions in which the court concludes that Simpson and/or Clark engaged; but also that it should be. That, at least, is its position presently: the Union may well submit differently if the matter proceeds beyond the present forum.

Part 4: The evidence

81    The court heard oral evidence from seven witnesses and received documentary evidence in the form of 50 exhibits.

82    The Commissioner called evidence from five Fulton Hogan employees: Malone, Inkster, Langley, Sullivan and Virant-Bell. Clark and Simpson gave evidence for the respondents.

83    As might be expected in a matter such as this, where there are issues that turn largely upon which recitation of the facts the court prefers, both sides advanced submissions about the credit of the other’s witnesses, the quality of the evidence that they gave and why the evidence of their own witnesses should be preferred.

84    It is not necessary that I should embark, at the outset, upon a detailed analysis as to why I have accepted certain parts of the evidence in preference to others. It is, however, appropriate to record at this juncture a general observation about the witnesses from whom oral evidence was received. With minimal exception, all of them impressed as honest and truthful. Although I have rejected, as I have had to, some aspects of the evidence of some witnesses, there is only one respect in which I have considered that evidence was embellished. For the most part, I attribute the evidential conflicts that arose in this matter to imprecise or imperfect recollections, rather than to any want of diligence or candour.

85    I should also record the court’s consciousness of s 140 of the Evidence Act 1995 (Cth) and, in particular, the statutory expression of the oft-cited Briginshaw test (Briginshaw v Bringinshaw (1938) 60 CLR 336, 361-362 (Dixon J)) for which its second subsection provides. Here, the respondents stand accused of having committed statutory wrongs, in consequence of which they face the prospect of penal sanction. Although proof of their conduct is required only on the balance of probabilities, the court’s satisfaction that that civil standard is met must be and is informed by the nature of the allegations that are put against them, the nature of the proceeding itself and the gravity of the matters that are alleged.

Part 5: The Eumemmering Creek Site Incident

86    For the reasons that follow, I am satisfied that, whilst in attendance at the Eumemmering Creek Site in the evening and early morning of Saturday, 29 and Sunday, 30 April 2017, Simpson contravened each of ss 499 and 500 of the FW Act. Those conclusions rest on the following central findings, namely that:

(1)    by his attendance at the site, Simpson:

(a)    exercised a State or Territory OHS right (as that term is defined by the FW Act); and

(b)    exercised or sought to exercise a right or rights in accordance with pt 3-4 of the FW Act;

(2)    Fulton Hogan required that:

(a)    those in attendance at the Eumemmering Creek Site wear safety glasses and full-length, white reflective overalls; and that

(b)    visitors in attendance at that site be escorted at all times by Fulton Hogan personnel;

(3)    upon his arrival at that site, Simpson was asked to (or told that he must) observe those requirements;

(4)    those requests were reasonable;

(5)    Simpson did not comply with those requests, in that he:

(a)    remained at the site despite not wearing safety glasses or full-length, white reflective overalls; and

(b)    moved about the site unescorted by Fulton Hogan personnel;

(6)    having failed to comply with those requests, Simpson exercised, or continued to exercise, a State or Territory OHS right; and

(7)    Simpson conducted himself improperly in the course of exercising, or seeking to exercise, rights in accordance with pt 3-4 of the FW Act.

87    My reasons for reaching each of those conclusions are set out in the sections that follow. Throughout the remainder of this part of these reasons, references to the respondents should be understood as references to Simpson and the Union (Clark, though also a respondent, does not feature in this aspect of the matter).

5.1 The exercise of a statutory right of entry

88    On the pleadings, it is not in contest that, in attending at the Eumemmering Creek Site on the evening and early morning of Saturday, 29 and Sunday, 30 April 2017, Simpson:

(1)    exercised, or sought to exercise, a “State or Territory OHS right” of a kind to which s 494(2) of the FW Act refers; and

(2)    exercised, or sought to exercise, a right in accordance with pt 3-4 of the FW Act.

The respondents did not suggest that the latter reality should, of necessity, preclude a finding that Simpson acted in contravention of s 499 of the FW Act. In the absence of such a contention, I proceed on the apparently uncontroversial basis that it does not.

89    In the absence of contest, then, those assertions are accepted. I pause, nonetheless, to note that they sit uneasily with much of the evidence that was led. There was, to say the least, fertile ground for suspecting that Simpson in fact did not reasonably suspect—at least not before he gained access to the site—that there were works being undertaken there in contravention of the OHS Act or the regulations made under it.

90    Prior to his attendance at the Eumemmering Creek Site on the evening in question, the only cause that Simpson appears, from the evidence, to have had to suspect that there might have been a genuine occupational health and safety concern there arose from:

(1)    two anonymous communications made via a website (which it appears were then automatically emailed to the Union) on 6 April 2017;

(2)    a visit that he made to another part of the Project later that day; and

(3)    an anonymous telephone call that he received in the days prior to 29 April 2017.

91    Each of the two anonymous written communications appears to have been made from a device or devices connected to the internet via the same internet protocol address. One was (or appears to have been) made six minutes after the other. Both were (or appear to have been) made more than three weeks before the cross-head lift was scheduled to take place at the Eumemmering Creek Site. The first of those communications read (errors original):

Hi my names [redacted] I've been apart of the Cfmeu since day dot .Atm I'm working out on the Monash freeway for connect people on Fulton hogan job site .We need a Cfmeu organiser to come to this site and sort it out for us workers we need your help .We are all getting paid under and the job site is unsafe .If I didn't need to work so paid to pay the bills I wouldn't be here please here me out and come help us Cfmeu brothers

92    The second read (errors original):

I am a Cfmeu member and I'm working out on the Monash freeway from pakenham to Warragul road the job is fucked we are not getting paid right the job is unsafe and us boys have been forced to sign with awu without signing papers or nothing it's a fucking joke

We haven't been giving our pay rise like we where promised

93    As is apparent, neither made any reference to the Eumemmering Creek Site, nor to any specific safety concerns with the Project. Both were received on the same day that Simpson first attended at Fulton Hogan’s Belgrave-Hallam Road Project office, and ahead of an inspection that he and another official of the Union then undertook at a different work site within the Project. Whilst at that other site, Simpson uncovered evidence of what he considered were various safety violations or concerns, which he later documented in an internal “safety audit” report. Notwithstanding the apparent gravity of its content, he did not share that report with anybody from Fulton Hogan. A few days following that visit of 6 April 2017, Simpson suggested to Langley that Fulton Hogan should hire (or perhaps appoint) a “union safety rep” for the Project.

94    A couple of days prior to 29 April 2017, Simpson received a telephone call from what he described as a “private number”. The caller said to him words to the effect of, “You don’t know me. We’ve got a lift happening down the Fulton Hogan Monash Freeway job on Saturday night. They’re going to be working over water. Can you come down and poke your head in?” By way of elaboration, the caller explained that, “We’re working over water. I don’t think things will be right. We’re too scared to stand up.” Under cross-examination, Simpson explained (or presumed to explain) that the caller “…didn’t really want to go into details”.

95    Simpson’s evidence was that, on the evening of 29 April 2017, he “…had some safety concerns about the – the lads working over the water on the barge”. He attributed those concerns to the anonymous telephone call that he had received a few days earlier. He did not particularise what they were and there is no other evidence before the court that illuminates a reasonable basis upon which Simpson might have suspected, prior to his arrival on 29 April 2017, that there were works that had occurred or were occurring at the Eumemmering Creek Site in contravention of the requirements of the OHS Act or regulations made under it.

96    That, presumably, reflects the fact that it was not in contest that, by attending at the Eumemmering Creek Site, Simpson exercised a State or Territory OHS right. Why, it might fairly be asked, would it be necessary to lead any evidence to establish the reasonable suspicion upon which his exercise of that right proceeded when the legitimacy of that exercise was not in contest? The short answer is that it wouldn’t be. Nonetheless, the issue was explored and the evidence that arose from that exploration seemed to pose as many questions as it answered.

97    The right conferred by s 87(2) of the OHS Act to enter particular premises is conditioned upon (amongst other things) the formation of a suspicion that something has happened or is happening there in contravention of the requirements of the OHS Act or the regulations made under it. The mere possibility that such an event might have occurred, might be occurring or might occur is not sufficient. The section does not empower authorised representatives to commit what would otherwise amount, at least in some cases, to an act of criminal trespass—a topic to which I shall shortly return—merely in order to satisfy themselves that work is occurring safely. It does not authorise a representative to “come down and poke [his or her] head in”.

98    The Commissioner, Simpson and the Union must be (and are) presumed to have had a proper basis for alleging and accepting that Simpson was, on the night in question, exercising or seeking to exercise a State or Territory OHS right (and, concomitantly, that his doing so was premised upon a suspicion of the kind that enlivens the relevant rights for which the OHS Act provides). That that basis might not now be apparent—indeed, appears to be somewhat questionable—on the strength of the evidence before the court is not a sufficient reason to reject the contention.

99    I pause, momentarily, to note (again) that the Commissioner’s pleaded case (and the respondents’ defence) was that Simpson was, “…at all material times during [his visit to the Eumemmering Creek Site]…exercising, or seeking to exercise, a State or Territory OHS right” (emphasis added). That plea adds an unnecessary layer of complication by which neither side appeared to be troubled. Section 499 of the FW Act cannot be contravened by conduct engaged in by a permit holder seeking to exercise a State or Territory OHS right. Given the manner in which the case was run, I proceed upon the basis that Simpson must be understood to have been exercising, throughout his attendance at the Eumemmering Creek Site, a State or Territory OHS right.

5.2 OHS requirements that applied at the Eumemmering Creek Site

100    Although there was evidence led about at least one other, there are only two occupational health and safety requirements that are relevantly alleged to have applied at the Eumemmering Creek Site. The first concerns the wearing of PPE; the second concerns the requirement that visitors be escorted whilst in attendance at the site.

101    I address each in turn below.

102    Ahead of that analysis, I should make some attempt to define what is contemplated by the phrase that appears in s 499 of the FW Act, “occupational health and safety requirement that applies to the premises”. The purpose of that section is apparent enough: it is designed to ensure that permit holders who exercise a “State or Territory OHS right” at a particular site do so whilst observing, at least to an extent that is reasonable, the health and safety precautions with which the occupier has a right to require that others comply.

103    On the natural meaning of its words, the phrase “occupational health and safety requirement that applies to the premises” contemplates (at the least) obligations:

(1)    that are genuinely calculated to reduce the risks to health or safety to which those in attendance at particular premises might be exposed;

(2)    that are imposed by the occupier of the premises upon those who gain access thereto; and

(3)    upon the observance of which the occupier conditions (or, absent a statutory right of entry, would condition) its grant of such access, or has (or would normally have) some other means of enforcing.

104    In the present case, the first of those characteristics is not in doubt. There is no suggestion that the requirements with which the Commissioner alleges that Simpson was asked to comply at the Eumemmering Creek Site were not genuinely directed to the promotion of good health or safety. At issue is whether they were requirements at all.

105    To qualify in that regard, it is not necessary that an occupational health and safety directive should find prior expression in any written instrument, such as a safety plan or policy that pertains in some way to particular premises: Darlaston v Parker (2010) 189 FCR 1, 27 [101] (Flick J). There is no obvious reason why an occupier’s request should, if it is to fall within the contemplation of s 499 of the FW Act, be one that applies generally to all others in attendance at the particular site. Plainly enough (and for the purposes of s 499 of the FW Act), a request for compliance with one that doesn’t might more readily be impugned as unreasonable; and a requirement that applies only selectively might more easily be impugned as one that isn’t genuinely calculated to reduce exposure to health or safety risks. Nonetheless, conduct upon which an occupier insists in order to promote safety or good health at particular premises is likely to be conduct that reflects an “occupational health and safety requirement that applies to the premises”, no matter how narrow its scope or recent its creation.

106    Fortunately, the circumstances that present here don’t require analysis descending to that level. There is no suggestion presently that any of the requirements with which Simpson was asked to comply were requirements that were imposed (or sought to be imposed) selectively upon him. Likewise, there is no suggestion that they were imposed (or sought to be imposed) upon a whim. At issue presently is whether the requirements with which Simpson was asked to comply were, in fact, requirements applicable at the site at all. For the reasons that follow, I am satisfied that they were.

5.2.1 PPE requirements

107    Although many PPE rules appear to have been in place at the Eumemmering Creek Site, only two are of present significance. One of them—that those in attendance at the site wear safety glasses—is not in contest and the evidence, in any event, establishes it plainly enough (I shall refer to that requirement, hereafter, as the “Safety Glasses Requirement”).

108    The other concerns the wearing of full-length, white reflective overalls. As is set out above, the respondents deny that there was a requirement in place at the Eumemmering Creek Site that visitors who were not involved in the performance of “night work activities” or “night works” should wear full-length, white reflective overalls. The references to those terms—“night work activities” and “night works”—will shortly become apparent.

109    The evidence as to the PPE requirements that Fulton Hogan enforced (or sought to enforce) throughout the Project was not materially in contest. In the main, those requirements arose as a function of both statute and contract. As to the latter, they arose in consequence of the terms of Fulton Hogan’s contract with VicRoads, which incorporated a number of terms stipulating the safety conditions that Fulton Hogan was bound contractually to oversee in connection with the Project. As to the former, they arose in consequence of Fulton Hogan’s status as the occupier of the various premises upon which the Project works took place and the obligation imposed upon it as such by the OHS Act (and regulations made thereunder). To assist in the discharge of that obligation (and its obligations more broadly to impose and enforce safe systems of work), Fulton Hogan adopted a comprehensive Occupational Health and Safety Plan that applied throughout the Project.

110    That plan (hereafter, the “OHS Plan”) stipulated, amongst other things, a number of relevant conditions that applied throughout the Project’s work areas (including, relevantly, the Eumemmering Creek Site). The OHS Plan listed the “[m]inimum PPE and clothing required for this [P]roject”. Two such requirements were “[s]afety glasses” and “[f]ull length white reflective overalls with biomotion stripes…for all night work activities in operational areas”. The latter requirement reflected a condition contained within Fulton Hogan’s contract with VicRoads; specifically, that “[f]ull length white reflective overalls…be worn by all personnel undertaking night works”.

111    The respondents made much of the fact that Simpson was not engaged in “night work activities” or “night works”. Although there was some contest in the evidence, it seems to be accepted—and, in any event, I do not doubt—that the Eumemmering Creek Site (or at least some of the parts of it into which Simpson ventured whilst there) qualified as an “operational area” (or areas).

112    The OHS Plan did not define “night work activities”. I do not consider it necessary to embark upon a careful parsing of the terms in which the OHS Plan expressed the requirement. If “night work activities” (or the equivalent term that was contained within the VicRoads contract: “night works”) should be understood to mean “construction works performed at night” (or some analogue thereof), then the most that might flow in consequence is that the requirement that Simpson wear full-length, white reflective overalls was not one that found expression in (or that arose by reason of) the OHS Plan. For reasons already identified, that does not mean that it wasn’t an occupational health and safety requirement that applied at the site.

113    On the contrary, it quite plainly was. Inkster’s evidence was that visitors who attended at Fulton Hogan’s Project sites—including “…VicRoads, WorkSafe, Transurban [and] time-lapse photographers”—were provided with white overalls. Virant-Bell said that the requirement that white overalls be worn at the site applied to “[e]veryone, visitors and workers included”, without exception. Even assuming, momentarily, that it went above and beyond what the OHS Plan required, it nonetheless qualified as an occupational health and safety requirement that applied at the site. It was something that was self-evidently directed to the promotion of good health and safety at the site; and it was something that Fulton Hogan required (both generally and, in the case of Simpson, specifically).

114    In any event, I do not accept that the respondents’ construction of “night work activities” (or the equivalent phrase that is found within Fulton Hogan’s contract with VicRoads: “night works”) is fair. Respectfully, I do not accept that Simpson could not properly be understood to have been a person that was conducting night works. On the ordinary meaning of those words, work activities undertaken within the Project at night seem, fairly obviously, to qualify as night work activities (or night works). There is no reason why the term should be understood as limited to construction works, or as excluding the work (or work activities) of managers or visitors who might have occasion to undertake their work tasks at the Project’s sites at night.

115    The contrary construction would lead to potential absurdity. It would contemplate that the OHS Plan might require that those engaged in construction works at night should wear full-length, white reflective overalls; but that those who observe them as visitors, including in proximity to the same hazards against which the requirement of high-visibility clothing is so obviously designed to protect, need not.

116    There is, with respect (and contrary to the respondents’ contention), no doubt that Fulton Hogan required personnel—including visitors—in attendance at the Eumemmering Creek Site during night periods to wear full-length, white reflective overalls (a reality that I shall refer to, hereafter, as the “White Overalls Requirement”).

5.2.2 The requirement that visitors be escorted

117    Section 12.1 of the OHS Plan was entitled “Site induction”. It relevantly provided as follows (emphasis added):

Upon commencement on site, all persons attending the site, including employees, subcontractors, delivery drivers and visitors, shall receive a site induction that covers the relevant sections of the [OHS Plan] according to their site exposure. They shall have an opportunity to provide feedback (including concerns or improvements) during the induction.

The inductions will address:

•    Ensuring all workers on site have completed construction induction training. Visitors to the site shall be escorted at all times and will not be required to have completed the construction induction training unless they are to undertake work on site.

…

118    The respondents contend that the requirement to which the second passage emphasised above gave voice was one imposed upon Fulton Hogan employees rather than upon visitors: that is, that Fulton Hogan employees were obliged to escort at all times those visiting Project sites, whereas visitors could venture around them as they pleased. Respectfully, that cannot be accepted. Indeed, the proposition need only be stated in those terms to be exposed for the misconception that it is.

119    On any view, the requirement (hereafter, the “Escort Requirement”) applied as much to those who visited Project sites as it did to those who had a capacity to escort them during those visits. Visitors were obliged not to venture anywhere within Project sites without a Fulton Hogan escort.

5.3 The requests that were made of Simpson

120    The respondents accept that Simpson was asked to (or told that he must), whilst at the Eumemmering Creek Site, comply with each of:

(1)    the White Overalls Requirement; and

(2)    the Escort Requirement.

It is also accepted that those representations were made for and on behalf of Fulton Hogan. Whether or not Simpson was also asked to (or told that he must) comply with the Safety Glasses Requirement during his visit remains in contest as between the parties.

121    I am satisfied that Simpson was asked to (or told that he had to) wear safety glasses whilst in attendance at the Eumemmering Creek Site. Malone gave evidence to that effect: specifically, that Inkster told Simpson (in Malone’s presence) that, in order to be at the site, he needed to wear appropriate PPE, including “safety glasses” and “overalls”. Simpson himself had no recollection of any such representation having been made to him. Inkster could not recall whether he specifically mentioned safety glasses as part of the suite of PPE that he told Simpson that he (Simpson) needed to have in order to be at the site.

122    Little can fairly be made of Simpson and Inkster’s degraded memories. Both acknowledged that there was a discussion on the night about Simpson not having the required PPE. One might readily expect that their recollection of the particulars of that discussion might fade over time, as it appears to have. Regardless, Malone gave positive evidence about what was said to Simpson. That part of his evidence was not challenged during his cross-examination and no other witness disputed it.

123    The respondents invited the court to reject, for want of a safe evidential basis, the contention that Simpson was asked to (or told that he had to) wear safety glasses at the Eumemmering Creek Site. That invitation is declined. In light of the evidence summarised above, I have little hesitation in accepting that Simpson was asked to (or told that he must) comply with the Safety Glasses Requirement whilst present at the Eumemmering Creek Site (I shall refer to that request, hereafter, as the “Safety Glasses Request”).

5.4 The reasonableness of the requests

124    I am also satisfied that all three relevant requests—specifically, that Simpson comply with each of the Safety Glasses Requirement, the White Overalls Requirement and the Escort Requirement—were reasonable in the circumstances.

125    The respondents did not contend that any request made of Simpson that he comply with the Safety Glasses Requirement was unreasonable. I consider that it was reasonable. I am drawn to that conclusion not merely because eye protection is, fairly obviously, a matter of good practice at any work site of the kind presently in consideration. Fulton Hogan had an obvious and important interest in enforcing applicable occupational health and safety standards at its sites (see, in a similar vein, the analysis below at section 5.4.3.8). The fact that Simpson could not simultaneously comply with the requirement and exercise his statutory rights is not unimportant (as to which, see the analysis at section 5.4.3.6 below); but, given the purpose of the requirement and the nature of the matters in respect of which Simpson sought to exercise his rights (both of which are analysed in more detail at sections 5.4.3.9 and 5.4.3.10 below), the better view is that the Safety Glasses Request was a reasonable request for the purposes of s 499 of the FW Act.

126    It is convenient to consider in turn the reasonableness of the other two requests. It is, in each case and generally, informed by a preliminary observation about the state of Simpson’s knowledge of the occupational health and safety requirements that applied at the Eumemmering Creek Site. It is to that issue that attention should first turn.

5.4.1 Simpson’s knowledge of the OHS Plan

127    The respondents submitted that the reasonableness of the requests that were made of Simpson should be assessed in light of the fact that he was not familiar with Fulton Hogan’s OHS Plan (which served as the—or a—documentary source of the requirements in respect of which the requests were issued). The Commissioner, in contrast, submitted that Simpson’s familiarity with that document is immaterial and that the reasonableness of the requests that were made of him is not informed by his state of mind.

128    A request that a permit holder comply with a particular occupational health and safety requirement is more likely to qualify as reasonable if the requirement is one with which the permit holder might be understood to possess some historical familiarity. That acknowledged, it must follow that the absence of such familiarity could also inform the reasonableness of what is requested.

129    I accept, as the respondents submitted, that Simpson’s state of knowledge of the OHS Plan is, at least potentially, a circumstance that might inform on which side of the reasonable or unreasonable divide the requests that were made of him might fall. It is, however, a circumstance that assumes minimal significance in the present context.

5.4.2 The Escort Requirement

130    Insofar as concerned their submission that Fulton Hogan’s request that Simpson comply with the Escort Requirement was not a reasonable request, the respondents suggested that that requirement was:

…directed (alternatively, principally directed) at what Fulton Hogan staff must do (rather than what a visitor must do), and there [was] no requirement in it as to the proximity between the visitor and the Fulton Hogan staff member.

131    For reasons that have already been recorded (above, section 5.2.2), I do not accept the first half of that proposition. The Escort Requirement was a requirement that applied to visitors: specifically, it required that they not venture throughout a Project site (such as the Eumemmering Creek Site) unless escorted.

132    The second half of the proposition is difficult to comprehend. It is hardly surprising that the OHS Plan did not define, precisely or otherwise, the degree of proximity that a visitor was to maintain with representatives of Fulton Hogan in order that he or she might be thought to be under escort. But the absence of any such stipulation does not obviously (or at all) serve to undermine the reasonableness of the request made of Simpson that he comply with that requirement. It might have had there been some ambiguity to what was required; but that does not appear to be suggested and, even if it is, is not a criticism that can be accepted. For present purposes, an escort is a person who travels in company with another for the purposes of protecting or guiding them. Whatever scope there might be for debate about the term’s conceptual outer limits, it is not enlivened by the facts of this case. The plain and unambiguous nature of the requirement was such that Simpson was not to venture around the Eumemmering Creek Site at his own whim.

133    The legitimate ends to which the Escort Requirement was directed are self-evident. Fulton Hogan had an obvious interest in ensuring that visitors to its sites were protected against the many and varied risks present within them; and the Escort Requirement was an equally obvious measure that it might employ to that end. Fulton Hogan’s request that Simpson comply with the Escort Requirement (hereafter, the “Escort Request”) was reasonable. All the more was it so given the nature of the matters in respect of which Simpson sought to exercise his statutory rights (as to which, see the analysis that appears at section 5.4.3.9 below).

5.4.3 The White Overalls Requirement

134    The bulk of the respondents’ submissions on this aspect of the matter—that is, their submissions upon the reasonableness of the requests that were made of Simpson at the Eumemmering Creek Site—focused upon the White Overalls Requirement. They maintain that, in the circumstances that prevailed at that site on that evening, the request that Simpson comply with that requirement (hereafter, the “White Overalls Request”) was unreasonable (or, to put it more precisely and in a way that recognises the Commissioner’s onus in this respect, that the court should not be moved to accept that it was reasonable). The Commissioner maintains to the contrary: that the White Overalls Request was a reasonable request for the purposes of s 499 of the FW Act.

135    The parties drew the court’s attention to circumstances that tended to establish or negative the proposition that the White Overalls Request was reasonable. Both submissions proceeded upon the assumption that the reasonableness of the request should fall to be judged under the collective light of all of those circumstances (including the circumstance already discussed at section 5.4.1 above). Respectfully, that is appropriate. I address below each of the circumstances to which the court’s attention was drawn and why, in combination, I am satisfied that they lead to the conclusion that the White Overalls Request was reasonable.

5.4.3.1 Simpson’s orange high-visibility vest

136    It is not in contest that, when he arrived at the Eumemmering Creek Site on Saturday, 29 April 2017 (and for the duration of his visit on that occasion), Simpson wore a bright- or fluorescent-orange, high-visibility vest. Photographs taken on the night in question show him wearing it on top of a dark-coloured jumper or jacket. As with any vest, it covered his torso but not his arms or legs.

137    The Council of Standards Australia has (together with its counterpart in New Zealand) approved a written instrument entitled “Australian/New Zealand Standard High visibility safety garments Part 1: Garments for high risk applications”. That instrument is more commonly (but only somewhat more easily) referred to as AS/NZS 4602. A version of it (hereafter, “AS4602”), incorporating amendments made prior to 17 February 2011, was received into evidence and was the subject of some submissions.

138    AS4602 “…specifies high visibility safety garment requirements for use in high risk applications”. The garment designs described within it are “…based primarily on the needs of workers in road and rail traffic situations to be seen in field situations by the operators of vehicles approaching them at speed, in time for any necessary safety action to be taken.” Those garments fall into three categories: those designed for daytime use (known as “class D” garments), those designed for night use (“class N” garments) and those designed for use in either day or night conditions (“class D/N” garments).

139    AS4602 stipulates the characteristics of garments designed to be worn over workers’ upper torso areas. It does not, of itself, stipulate what colour class N or class D/N garments should assume (although it may do by reference to other standards that were not before the court). It recommends (but does not mandate) that, wherever possible, those who work in night conditions should be supplied with garments that extend to cover the wearer’s arms and legs.

140    Although, on the evidence before me, it doesn’t seem possible to conclude definitively, the vest that Simpson wore on the night and early morning of Saturday, 29 and Sunday, 30 April 2017 at least appears to have been one that qualified as a class D/N garment under AS4602. Malone accepted that proposition under cross-examination and, as the respondents urge, I proceed upon the assumption that it’s true.

141    The fact that Simpson attended the Eumemmering Creek Site in PPE that, although not compliant with the White Overalls Requirement, nonetheless complied with AS4602 is, I think very plainly, a circumstance than inclines against a finding that the White Overalls Request was reasonable. On any view, the reasonableness of that request is informed by the objective that it was apparently designed to secure: specifically, that Simpson was and would remain visible to those engaged in works at the site and, thereby, be afforded a measure of protection against the various health and safety hazards that naturally attach to work of the kind that was occurring there. Having adorned himself with a garment that was apparently (if not actually) designed to achieve—and that, at least to some degree, must have achieved—that end, the marginal benefit to be realised from compliance with the White Overalls Request was necessarily less than what it would have been had the vest not been worn. The objective reasonableness of a request to comply with an occupational health and safety requirement will naturally vary in line with the benefit that that compliance is designed to secure.

142    On any view, Simpson’s attendance at the Eumemmering Creek Site in the orange high-visibility vest is a circumstance that inclines in the respondents’ favour.

5.4.3.2 Fulton Hogan did not supply overalls

143    Having been alerted to the White Overalls Requirement, Simpson indicated that he was prepared to comply with it and requested of Inkster and Malone that he be supplied with a pair. It is not in contest that Fulton Hogan did not provide Simpson with overalls compliant with that requirement. The respondents make the suggestion that his request was “refused” (as opposed to simply not granted).

144    It was clear from the evidence that Fulton Hogan maintained a store of spare overalls that were available for use by visitors to its Project sites. Inkster and Virant-Bell both told the court that Fulton Hogan would have had spare overalls back at its main Belgrave-Hallam Road Project office, a short drive from the Eumemmering Creek Site. In truth, neither knew whether, in fact, there were any spare pairs of overalls available on that evening.

145    Malone’s evidence was less equivocal. As the Project Safety Manager, he “…was in control of all the spare pairs of overalls” and was aware that, in the evening of Saturday, 29 April 2017, Fulton Hogan did not have any back at its Belgrave-Hallam Road Project office that weren’t already being used. That was a reality that he described “typical” whenever Fulton Hogan performed “bigger activities” such as the cross-head lifts that were scheduled at the Eumemmering Creek Site that evening. His evidence was that, when visitors alerted Fulton Hogan in advance to the fact that they intend to visit a particular site, Fulton Hogan made “every effort to accommodate them”; but he also told the court that “…we had a practice of turning people away if they didn’t have their overalls”.

146    To the extent that there is any inconsistency—and, to be clear, I would be slow to find that there is any—the evidence that Malone gave is unmistakably preferable. Unlike Inkster and Virant-Bell, both of whom gave evidence about what was normally the position and what they would have assumed was the position on the evening in question, Malone gave unambiguous evidence about what was actually the position vis-à-vis spare overalls. There were none.

147    Even assuming that the objective reasonableness of an occupier’s request that a permit holder comply with PPE requirements at a site was informed by its refusal to provide that PPE upon request—a proposition that I accept for present purposes but that is itself not entirely free from doubt—I do not accept that Fulton Hogan can be said to have “refused” to provide Simpson with a pair of white overalls on 29 April 2017. It cannot fairly be thought to have refused to provide what it did not have.

148    Nonetheless (and as is explored further below), the fact that Simpson was unable to comply with the request for want of access to full-length, white reflective overalls is a circumstance that informs the reasonableness of the White Overalls Request. Again, it is a circumstance that inclines in favour of the position that the respondents advanced.

5.4.3.3 The site was well-lit

149    The respondents point to the evidence about the standard of lighting at the site as a factor that should inform the court’s assessment of whether or not the White Overalls Request was reasonable. I accept that it should.

150    Prior to his attendance at the Eumemmering Creek Site on 29 April 2017, Simpson wrote out in draft form a number of “notices of suspected contravention” documents that he contemplated issuing to Fulton Hogan (presumably in compliance with the requirements of s 88(1) of the OHS Act). One of them concerned the state of the lighting at the site. Later, when he was at the site, he finalised that notice (at least by signing and dating it). In the section headed “Description of the Suspected Contravention of the OHS Act or Regulations under the OHS Act”, that form posed the question “What are your concerns about health and safety at the workplace?”, in response to which Simpson wrote:

lighting to area where workers are working on the barge and around it

151    Below that, another question read “Why do you consider these matters to be a contravention of health and safety?”, in answer to which Simpson inserted below:

if the area is not lit up to the australian standards then the possibility of serious injury or death is high

152    Notwithstanding those apparent concerns, Simpson accepted under cross-examination that “…the lighting [at the site] was correct [and] there was no need to raise that issue”. By way of summary, then, the respondents now advance as a circumstance in their favour an issue that Simpson appears to have felt, during the evening in question, warranted at least some investigation as a potential breach of health and safety requirements. Curious though that circumstance might seem, it can be put to one side momentarily. I accept—as all were agreed, eventually or otherwise—that the standard of lighting at the Eumemmering Creek Site on 29 and 30 April 2017 was high.

153    As has already been stated, a request that a permit holder comply with a particular occupational health and safety requirement is more likely to qualify as reasonable if the occupational health and safety benefit to which that compliance is directed is real and substantial, as opposed to theoretical or marginal. Here, the obvious intent that animated the White Overalls Request was Fulton Hogan’s legitimate desire to ensure that Simpson remained visible at all times whilst at the Eumemmering Creek Site and, thereby, was afforded some measure of protection against the health and safety hazards that were present within it. The benefit to be extracted from the wearing of high-visibility PPE within a site that is well-lit will, on any view, be below what it might be within a site that is not well-lit. A request that a permit holder wear full-length, white reflective overalls at a site that is well-lit is more vulnerable to being impugned as unreasonable than a request made at a site where the lighting is poor. All the more is that so when no such overalls are available to be worn and, instead, the permit holder has alternative high-visibility dress.

5.4.3.4 Simpson was not engaged in “night works”

154    The respondents maintain that Simpson was not involved in “night works”—that is to say, in the actual construction works associated with the Project. It is not immediately apparent why or how that reality, as they perceive it, should inform the reasonableness of the White Overalls Request. In any event, for the reasons that I have already outlined (above, [111]-[115]), I do not accept the foundational proposition.

155    On any view, Simpson was, on 29 and 30 April 2017, in attendance at a site at which work was being undertaken at night. The White Overalls Requirement applied and there is no obvious reason why it might or might not be considered reasonable merely because Simpson’s work was that of a union official and he was not himself engaged in construction works.

156    By their written submissions, the respondents sought to equate Simpson’s position with that of the two police officers who attended at the site upon Fulton Hogan’s request (see above, [55]). They submit that, “…Victoria Police officers were not wearing white PPE, and Fulton Hogan staff did not require it, because they were also not personnel and not carrying out any night works or other activities as part of the project itself”. With respect, that cannot be accepted. Having requested police assistance to remove Simpson from the Eumemmering Creek Site, Fulton Hogan’s management representatives cannot sensibly be expected to have imposed or sought to impose constraints upon how that assistance might be rendered; and any failure on their part to do so (or attempt to do so) cannot fairly be construed as some kind of concession that the White Overalls Requirement applied only to a class of people to which Simpson did not belong.

157    I do not accept that this circumstance weighs substantially one way or the other in the court’s assessment of whether or not the White Overalls Request was reasonable.

5.4.3.5 White overalls and the industry standard

158    Both sides sought to lead evidence about the projects and circumstances in which full-length, white reflective overalls are and are not typically used.

159    Malone told the court that, insofar as concerns “infrastructure projects [that involve work] near traffic…the industry standard is wearing white overalls”. Virant-Bell’s evidence was that, from her experience of what was common in the industry, “…most Victorian freeway works require whites and reflective stripes for night works”. Simpson’s evidence, based on his experience, was that it was uncommon for workers to wear white reflective overalls at “construction site[s]” at night, although he conceded that he had seen them worn at sites that experienced “traffic control with live traffic”. Clark told the court that he had never before been required to wear white overalls at a construction site at night, including sites at which traffic hazards were present. His evidence was that white overalls at such sites were “not common at all”. That evidence was, it is fair to say, undermined somewhat by his later concession that he had never before visited a road construction project, either during the day or the night.

160    On the evening in question, the out-bound lanes of the Monash Freeway were closed to public traffic. There was conflicting evidence as to whether they were being used by other vehicles attached to the Project. Malone told the court that, on the evening and early morning of 29 and 30 April 2017:

There were vehicles constantly going up and down the closed portion of the freeway. It wasn’t one-way traffic and everything was under radio control.

161    Malone’s evidence was that the closed section of the freeway was used by Project vehicles, including “[s]upervisors’ vehicles, light trucks, vacuum trucks…a number of vehicles going up and down”. He explained that the Eumemmering Creek Site was merely one of a number of sites at which works were occurring along that closed section of freeway that evening.

162    Inkster’s evidence was that there were “…vehicles driving on that freeway, construction vehicles, franna[ crane]s, utes…a whole range of vehicles”. He gave evidence that, when Simpson ventured up onto the out-bound roadway to speak with the crane driver, he (Inkster) notified traffic controllers by radio that there was somebody on the freeway who was not wearing correct PPE and who was not authorised to be there.

163    Langley accepted that, during the lifting of the cross-heads, there was no “flowing live traffic” on the out-bound lanes of the freeway. Prior to that, his evidence was that those lanes were in use at least to some degree by “all our trucks”.

164    Simpson’s evidence was, understandably, limited to what he was able to physically observe on the night that he visited the Eumemmering Creek Site. Under cross-examination, he gave the following evidence:

And so are you – do I get what you were just indicating then that you’re saying it’s only the people who are directing traffic that have to wear the white PPE?---Working with – with the live traffic. So - - -

Working with the live traffic?---That’s correct. Yes.

And would you agree that there was live traffic at the Eumemmerring Creek site on 29 and 30 April?---Not where I was. No.

Not where you were, but on the site? Was there live traffic on that site?---I couldn’t tell you. Not constant live traffic.

Not constant, but was there or wasn’t there?---No.

There was none?---Not in my sight where I was. No.

So how did stuff come to the crane?---On the – on the freeway on the other side of the barriers when – when - - -

Okay. Let’s - - -?---No. It wasn’t – the road was closed. Sorry.

Let’s include the whole of the Eumemmerring Creek site?---The whole site.

The whole site from the point you’ve come off the freeway through to the whole area around the crane, the barge, the water barriers, the whole site. That’s – all of that?---Yes.

There was live traffic?---At my point, no, there wasn’t.

You never saw live traffic?---I saw the police cars come in and I remember them getting bogged. The truck was already set up. The crane was already - - -

Which truck?---The truck with the T-beam on it that was already - - -

Do you agree that for the crane to get set up, there needed to be traffic?---Of course there did. Yes. I agree with that.

So there was live traffic on the site?---Not while I was there.

Okay. But you accept that there would have been?---Of course I accept that. Yes.

165    Plainly enough, there was no traffic—and no suggestion of any traffic—within the “lay down” area or adjacent to the water-filled barriers that were situated at (or toward) the top of the Creek Access Ramp, where Simpson spent most of his time when at the site on 29 and 30 April 2017. The evidence suggested that he left that area on at least two occasions: once when he walked down the ramp toward the western shore of Eumemmering Creek in order to speak with some of the workers who were to perform works on the barge; and once when he made his way onto the out-bound roadway to speak with the crane driver.

166    I accept Simpson’s evidence that he did not see any moving traffic on the out-bound lanes of the freeway whilst he was in attendance at the site. I also accept that there wasn’t any throughout the time that he spent out on the out-bound lanes talking to the crane driver. I otherwise prefer, to the extent that it might matter, the (understandably) more fulsome evidence of Malone, Inkster and Langley: namely, that the out-bound lanes of the freeway were used by Project vehicles throughout the course of the evening and consistently with the program of works that were scheduled to be completed throughout it.

167    It follows that I would accept, as the Commissioner urged, that full-length, white reflective overalls were amongst the PPE that one might have expected to have been in use by those visiting or working at the Eumemmering Creek Site in the evening and early morning of Saturday, 29 and Sunday, 30 April 2017. That circumstance tends in the Commissioner’s favour insofar as concerns the reasonableness of the White Overalls Request.

5.4.3.6 Impeding of the exercise of statutory rights

168    The respondents contend that the White Overalls Request was not reasonable (or, more accurately, that the court should not accept that it was) because, in the circumstances that prevailed, compliance with it required that Simpson leave the Eumemmering Creek Site, or otherwise not exercise the statutory right or rights that he was there to exercise. As the respondents put it: the “immediate requests for Mr Simpson to wear white PPE without engaging with his OHS concerns had the effect of impeding the exercise of his right of entry”.

169    At the level of principle, that submission has at least some force. The White Overalls Request was not, in any practical sense, merely a request that Simpson wear white overalls—it was a request that he either wear white overalls or leave the site. As has already been explored, it was not possible for Simpson to wear full-length, white reflective overalls on the night in question because nobody had any for him to wear. Short of doing what he did, his only other option was to leave the site. Doing so would, as the respondents contend, have required that he not “engag[e] with his OHS concerns”.

170    Again, there can be no doubt that that reality inclines, at least to some degree, in favour of a conclusion that the White Overalls Request was not reasonable in the circumstances that prevailed. For reasons to which I shall shortly advert, though, I do not regard this as a decisive or particularly important consideration. The safety concerns with which Simpson sought to engage were concerns that lent themselves to engagement at a different place and time (see below, [185]-[186]).

5.4.3.7 Simpson was escorted

171    The respondents contend that the White Overalls Request was not reasonable in part because Simpson was, at all times when present at the Eumemmering Creek Site, escorted by a Fulton Hogan representative.

172    For reasons to which I shall shortly return, I do not accept the factual premise upon which that submission was advanced. Simpson was not escorted at all times by Fulton Hogan personnel whilst in attendance at the Eumemmering Creek Site.

5.4.3.8 The purpose of the White Overalls Requirement

173    To this point, I have addressed—and, to varying degrees, accepted some of—the circumstances to which the respondents pointed in support of their contention that the White Overalls Request was not reasonable. Unsurprisingly, the Commissioner pointed to other circumstances that tended toward the opposite conclusion. It is to those circumstances that attention now turns.

174    The Commissioner submitted that the White Overalls Request was reasonable because it gave force to Fulton Hogan’s OHS Plan (and, specifically, to the White Overalls Requirement); and because the requirement to which it pertained was one that was reasonably directed at ensuring the safety of visitors and workers at the Eumemmering Creek Site. I readily accept both propositions, for what they are worth.

175    There can be no doubt that the White Overalls Requirement was designed to ensure that those present at the site maintained maximum visibility. On any view, it was—as Simpson readily accepted—reasonable for Fulton Hogan to have “…a PPE requirement of wearing white overalls at all works at night” because PPE of that nature is “more visible”. A requirement of that kind was, on any view, designed and reasonably tailored to assist in realising Fulton Hogan’s legitimate desire—and, indeed, its legal obligation—to ensure that those who gained admission to its sites were not unnecessarily exposed to health or safety hazards.

176    Furthermore, in circumstances where, on the evidence, full-length, white reflective overalls were worn by all of the other persons present at the Eumemmering Creek Site in the evening and early morning of Saturday, 29 and Sunday, 30 April 2017 (as Malone told the court), it is equally legitimate for Fulton Hogan to have been concerned to ensure a unanimity of appearance. Counsel for the respondents very properly conceded as much.

177    Fulton Hogan’s obvious desire to ensure compliance with its suite of occupational health and safety requirements was, I think quite plainly, reasonable. That is a circumstance that naturally inclines in favour of the view that the request that Simpson comply with those requirements was also reasonable.

5.4.3.9 The nature of Simpson’s suspicions

178    The Commissioner contends that the safety contraventions that Simpson suspected and wished to investigate were not such as to require his presence at the Eumemmering Creek Site. In order to appreciate that submission, it is necessary to explore the nature of the concerns that Simpson raised during his visit to the Eumemmering Creek Site.

179    As has already been explored, the genesis (or, perhaps, predominant source) of the concerns in respect of which Simpson exercised his right under s 87(2) of the OHS Act to enter the Eumemmering Creek Site on 29 April 2017 was the anonymous telephone call that he received a few days earlier (above, [94]). Apparently as a result of being told that the caller did not “think things will be right”, Simpson resolved to draw up, in draft form, four notices that he intended, upon gaining access to the Eumemmering Creek Site, to issue to Fulton Hogan in compliance with the requirements of s 88(1) of the OHS Act.

180    One such notice (or draft notice)—concerning the sufficiency of lighting at the site—has already been described (above, section 5.4.3.3). Another pertained to Fulton Hogan’s emergency rescue plan. Again, as with the other equivalent notices, that notice purported to answer two relevant questions: “What are your concerns about health and safety at the workplace?” and “Why do you consider these matters to be a contravention of health and safety?” Simpson wrote (respectively, errors original):

emergency rescue plan for rescueing workers falling off the barge into the water

[and]

if there is not a adequate rescue plan in place and no site specific training for the task taking place then the chance of serious injury or death is high

181    A third notice concerned the character of the concrete from which the cross-heads had been fabricated. Again, that notice posed the same two questions, in answer to which Simpson wrote (errors original):

[“What are your concerns about health and safety at the workplace?”]

birth certificates and rigging diagrams of precast bridge beams not being adequate for task or birthed to soon and to green to lift

[and “Why do you consider these matters to be a contravention of health and safety?”]

if the precast bridge beams haven’t cured for the appropriate amount of time they could fail and if rigging diagrams are not to engineers specs it could cause injury

182    A fourth notice concerned the rigging equipment that was to be used to lift the cross-heads and relocate them from the freeway’s out-bound lanes to the support pylons that had been erected in Eumemmering Creek. Again, that notice posed the same two questions, in answer to which Simpson wrote:

[“What are your concerns about health and safety at the workplace?”]

lifting gear on crane picking up precast bridge beams

[and “Why do you consider these matters to be a contravention of health and safety?”]

if lifting gear hasn’t been tested recently or is not right for the lifting of the bridge beams, serious injury or death could occur if it fails

183    A number of observations may be made of each of the four notices referred to above. The first is that it is anything but clear how it might reasonably have transpired, on account of any of the events that preceded his attendance at the Eumemmering Creek Site on 29 April 2017 (including, in particular, the anonymous telephone call that he had received a few days earlier), that Simpson came genuinely to suspect that safety contraventions related to any of the issues to which his four notices pertained had occurred or were occurring at that site. To observe as much is not to doubt—and, indeed, I have already explained why, in light of the pleadings, I accept—that Simpson’s attendance at the Eumemmering Creek Site on 29 April 2017 amounted to a valid exercise of a “State or Territory OHS right” or rights. But it suffices to note that I am unable to discern from the evidence a compelling basis for thinking that, prior to his arrival at the site, Simpson genuinely and reasonably held any suspicion that safety contraventions concerning any of the issues highlighted in his four notices had occurred or were occurring.

184    The second (and related) observation that arises from each of the four notices that Simpson prepared is that not one of them describes a safety contravention that Simpson suspected had occurred or was occurring. Simpson did not, for example, record any suspicion that the concrete from which the cross-heads had been fabricated had been prematurely birthed such that it might fail during the lift. He simply recorded that if it had been, that would pose risks to health and safety. Likewise:

(1)    Simpson did not record any suspicion that rigging diagrams pertaining to the cross-beam lifts were “not to engineers specs”—he simply noted that, if they weren’t, that might result in workers being injured;

(2)    Simpson did not record any suspicion that the lighting used at the site was unfit to accommodate the work that was to be performed there—he simply noted that, if it was, that might pose risks to the health or safety of those performing the work;

(3)    Simpson did not record any suspicion that Fulton Hogan’s emergency management plan was inadequate—he recorded merely that if it were, that too would pose a health or safety hazard; and

(4)    Simpson did not record any suspicion that there was something wrong with the lifting gear that would be used to relocate the cross-heads onto their support pylons—he simply noted that if there was something that hadn’t been picked up in recent testing, that would pose obvious risks to health and safety.

185    The third observation to which each of the four notices invites attention concerns their forward-looking nature. All four raised questions about safety issues that might affect events that were yet to occur. By their nature, all raised questions that Simpson could, on any view, have explored with Fulton Hogan at an earlier point in time (for example, after his anonymous caller first alerted him to the possibility that “things will [not] be right”) and from a location other than the Eumemmering Creek Site (for example, from Fulton Hogan’s Project office, from where, one might very safely presume, records pertaining to the issues that exercised Simpson’s mind might just as conveniently—and perhaps more conveniently—have been reviewed).

186    Even assuming—as I do, despite a healthy degree of scepticism—that Simpson formed suspicions upon which a right or rights under the OHS Act were enlivened (and in respect or on the strength of which the four notices were drawn up), both the nature of those suspicions and the alternative means by which it was open to Simpson to investigate them are matters that inform the reasonableness of the occupational health and safety requests that were made of him during his visit to the Eumemmering Creek Site. A request that a permit holder comply with an applicable occupational health and safety requirement will more likely qualify as reasonable when it is made in the context of an attempt to investigate safety-related suspicions that lend themselves to alternative means of investigation. All the more might that be so in circumstances where a permit holder is invited to discuss and address his or her suspicions elsewhere. Inkster and Malone gave evidence that, on the night in question, they invited Simpson back to the Project office to discuss his concerns. I accept that evidence.

187    The nature of the issues that Simpson wished to investigate and the opportunity that he had to do so earlier or at a location or locations other than the Eumemmering Creek Site are matters that inform the objective reasonableness of the White Overalls Request. They incline—in my view very forcefully—toward the conclusion that that request was a reasonable request for the purposes of s 499 of the FW Act.

5.4.3.10 Conclusion about the reasonableness of the White Overalls Request

188    Having regard to all of the circumstances to which the court’s attention was drawn, I accept the Commissioner’s submission that the White Overalls Request was reasonable. There were, as I have said, circumstances that tended toward the opposite conclusion. Weighing them all in combination, however—and having regard, in particular, to the nature of what it was that Simpson sought to investigate and the alternative means that were open to be pursued by way of their investigation (which I regard as indicia of particular significance)—I am drawn to conclude that the request was reasonable.

5.5 Simpson’s compliance with the requests

189    The respondents accept that, throughout his attendance at the Eumemmering Creek Site in the evening and early morning of Saturday, 29 and Sunday, 30 April 2017, Simpson did not wear safety glasses or full-length, white reflective overalls. Having found, as I have, that he was asked to (specifically and respectively by means of the Safety Glasses Request and the White Overalls Request), it necessarily follows that Simpson did not comply with those requests.

190    The respondents deny, however, that Simpson failed to comply with the Escort Request. They maintain that he was, at all times whilst present at the Eumemmering Creek Site, escorted by Fulton Hogan personnel. Respectfully and for the reasons that follow, that submission proceeds upon an unduly generous (and misconceived) interpretation of what qualifies as an “escort”. I do not accept it.

191    There was little conflict in the evidence that was led about what Simpson did whilst in attendance at the Eumemmering Creek Site. For much of the time that he spent there, Simpson situated himself at or near the water-filled barriers that were positioned at (or near) the top of the Creek Access Ramp. He departed from that location on at least two occasions.

192    The first was when he walked down the Creek Access Ramp to address some workers who were working at or near the western shore of Eumemmering Creek. According to Inkster, Simpson walked down the ramp and announced to those workers that their “worksite [was] unsafe” and that they were “risking [their] lives”. Simpson accepted that he had warned that “the barges are unsafe” and that workers were “risking their lives by working on them” but he denied that he had walked down to (or toward) the shore in order to do so. Instead, his evidence was that he issued those warnings as the workers walked up the Creek Access Ramp. I don’t accept that evidence. Inkster and Malone both gave consistent evidence that they observed Simpson walk down the ramp to where the barge (or boat) crew members were located. Inkster later made a written record of Simpson’s attendance at the site, which was consistent with that recollection. I prefer the evidence that Inkster and Malone gave.

193    I also accept the evidence that Malone and Inkster gave about Simpson’s having walked alone down the Creek Access Ramp to address the barge (or boat) crew workers who were at or near the ramp’s base. According to Malone, the ramp spanned a distance of some 25 to 30 metres. I accept that Simpson “took it upon himself” (as Malone put it) to leave the water-filled barriers and walk down the Creek Access Ramp. Equally, I accept (and the evidence made clear) that, upon his doing so, Inkster set out in pursuit of him; but I do not accept, as the respondents urged me to, that his pursuit of Simpson can fairly be equated with his having “escorted” him down the Creek Access Ramp. The respondents contended, in that regard, that “[t]he definition of ‘escort’ includes to ‘accompany’”. That might well be accepted; but there is a world of difference between being accompanied and being chased. With due respect, this was not the respondents’ best point.

194    The second occasion on which Simpson left the water-filled barriers at the top of the Creek Access Ramp occurred when he ventured up and on to the out-bound roadway or bridge deck to speak with the driver of the mobile crane that was situated there. There was little, if anything, in the evidence about that episode that was in conflict. According to Inkster, it occurred at approximately 1:00am on Sunday, 30 April 2017. Simpson’s evidence was that he felt some gusts of wind, which prompted him to want to speak with the driver to ensure that the cross-head lifts might be undertaken safely. He thereupon left the Creek Access Ramp, walked up to the walkway that ran adjacent to the out-bound road bridge, walked across that walkway to some stairs that had been erected in order to facilitate access to the bridge deck, used those stairs to access the roadway, and then walked over to the mobile crane.

195    Again, it is not in contest that, upon noticing that Simpson had decided to leave the water-filled barrier area at the top of the Creek Access Ramp and walk toward the out-bound roadway, Inkster gave chase. Malone, Inkster and Simpson all gave evidence broadly consistent with that reality. As he pursued Simpson, Inkster called out to him, “James, where are you going?”, to which Simpson replied with words to the effect of, “I’m just going to go check out the crane”. Inkster followed him and called out again, “It’s not safe for you to be here” and “You’re not wearing correct PPE”. According to Inkster, Simpson then started video-recording him (Inkster) on his (Simpson’s) mobile telephone and asked, “Are you refusing my ARREO?” (which I infer was some kind of reference to Simpson’s status under the OHS Act as an authorised representative of a registered employee organisation). Inkster followed Simpson as he moved onto the bridge deck, at which point he (Inkster) radioed traffic control to advise that there was unauthorised personnel on the freeway. After Simpson conducted a brief conversation with the crane driver, he and Inkster both left the bridge deck and returned to the water-filled barriers at the top of the Creek Access Ramp. Inkster then called the police again in what was, by then, a second (and ultimately futile) attempt to have them remove Simpson from the site.

196    Again, the respondents contend that, insofar as he walked in pursuit of Simpson up to the bridge deck area, Inkster should be understood to have been escorting him. That contention is apparently maintained in the face of a concession that Simpson himself made under cross-examination that, when he decided to “…take it upon [himself] to speak to the crane driver, [he was…] not escorted”. Again, I have no hesitation in rejecting the contention that is advanced. It is abundantly clear that Inkster did not escort Simpson in any sense that might accord with the ordinary meaning of that word. He was not escorting Simpson; he was chasing him and attempting to persuade him that he ought not to do what he did. To equate those endeavours with Inkster’s having “escorted” Simpson up to (and back from) the bridge deck upon which the mobile crane was situated is, with all due respect, patently absurd.

197    There was, it seems, a third occasion on which Simpson left the water-filled barriers at the top of the Creek Access Ramp. It occurred when the cross-head lifts took place, at approximately 3:30am on Sunday, 30 April 2017. According to Inkster, Simpson again walked down from the top of the ramp toward the bottom and, using his mobile telephone, recorded the lifts as they took place. Simpson told the court that he video-recorded the lifts from near the water-filled barriers, not from (or toward) the base of the Creek Access Ramp. That video recording was not produced, possibly (although the evidence could have been clearer) because the mobile telephone that Simpson used to create it was damaged or otherwise unable to reproduce it. It is not clear from the evidence whether Simpson was escorted—or even accompanied or pursued—by Fulton Hogan personnel at the point that he video-recorded the cross-head lifts. In the absence of clear evidence in that regard, I make no findings as to whether Simpson failed to comply with the Escort Request whilst those lifts took place.

198    By way of summary, then, I am satisfied that Simpson did, on two occasions, venture throughout the Eumemmering Creek Site without a Fulton Hogan escort. It follows that, as with the Safety Glasses Request and the White Overalls Request, I accept that Simpson did not comply with the Escort Request.

5.6 Continued exercise of state or territory OHS right

199    As has already been examined, it is not in contest that, by his attendance at the Eumemmering Creek Site in the evening and early morning of Saturday, 29 and Sunday, 30 April 2017, Simpson exercised a State or Territory OHS right. Having found, as I have, that he was asked to but did not comply with reasonable requests that he observe occupational health and safety requirements that applied at that site, it follows that his continued exercise of that right was effected in contravention of s 499 of the FW Act.

5.7 Impropriety

200    The Commissioner submits that, by his conduct in contravention of s 499 of the FW Act, his refusal to leave the Eumemmering Creek Site and the fact that he required that the attention of multiple Fulton Hogan employees be diverted toward the addressing of his presence, Simpson acted in an improper manner in contravention of s 500 of the FW Act.

201    As has already been recorded, it is not in contest that, throughout his attendance at the site on 29 and 30 April 2017, Simpson exercised or sought to exercise a right or rights in accordance with pt 3-4 of the FW Act. The respondents did not suggest that that reality should be questioned in the event that the court were to accept, as I do, that Simpson acted in contravention of s 499 of the FW Act (as to which and in any event, see above, [88]).

202    The respondents deny that Simpson misconducted himself whilst in attendance at the Eumemmering Creek Site. That denial has three dimensions: first, that there was no contravention of s 499; second, that Simpson did not materially divert any Fulton Hogan personnel from their duties on the night in question; and, third, that “…there was no actual detriment done to Fulton Hogan that evening [in the sense that t]he works were completed with no loss of time or money…”

203    I have already addressed the first of those three contentions. I am satisfied that Simpson did contravene s 499 of the FW Act by exercising, or continuing to exercise, the right or rights that he did in the circumstances that transpired.

204    With respect, the second and third contentions largely obscure, or fail to appreciate, the nature of Simpson’s conduct on the night in question. Some context is warranted.

205    After he arrived at the site, Simpson met with Malone and Inkster. He was told that he could not remain there, given his attire. He was asked to leave and, according to Malone and Inkster (whose evidence I accept), was invited to attend Fulton Hogan’s Project office a short drive away, where his concerns could more conveniently be discussed. He refused those overtures and demanded various species of information relating to the concerns (or some of the concerns) that were the subject of the draft safety contravention notices with which he had gone to the site armed (above, [179]-[182]).

206    It is no exaggeration to say that the ensuing discussions were largely fruitless. Simpson asked a series of questions regarding the safe work method statements (or “SWMSs”) that Fulton Hogan had developed for the purposes of the works that were scheduled to be undertaken at the site that evening. He also enquired about Fulton Hogan’s emergency rescue plan. Malone provided him with (or showed him) a “work activity pack”, which contained all of the relevant SWMSs, as well as details of Fulton Hogan’s emergency rescue plan. Simpson then asked for information concerning the training that had been undertaken by the barge (or boat) crew members who were in attendance at the site. When Malone was able to provide that information, Simpson asked for information about the qualifications of those who had provided that training.

207    At that point, Malone determined that Simpson was on “a bit of a fishing exercise”. He decided that he would call a representative of WorkSafe to try and convince Simpson to leave the site and, potentially, discuss his concerns elsewhere. There then ensued a series of telephone discussions involving a representative of WorkSafe. Although he could recall talking to a WorkSafe representative that evening, Simpson was unable to recall the substance of that discussion.

208    Inkster and Malone had decidedly better recollections. Malone told the court that the WorkSafe representative indicated to him that she was satisfied that there were no safety concerns that warranted any attendance by a WorkSafe representative at the Site and that Simpson ought not to have been there. Later in the morning of Sunday, 30 April 2017, Inkster made a written record of the events of the night, which was received into evidence without objection. It noted that WorkSafe had “…requested that Simmo leave site, to which he also refused” and had also offered to “support of the removal of him to the police”.

209    A WorkSafe “Incident Response – Record of Call” was received into evidence. It recorded a series of conversations that apparently commenced at approximately 12:30am on 30 April 2017 between (amongst others) Simpson and a WorkSafe officer named Linda Lewis. It recorded as follows:

Description of incident:    00.30 James Simpson phoned advising that he had been refused entry to the site as an ARREO.

    00.31 I phoned Brendan Malone who advised the entry was only denied due to ARREO not wearing the required PPE, nor presenting to the office, nor having a two-way radio in his vehicle which he drove on site.

    01.01 Vic Police call for advice as they were requested to escort James Simpson from the site. Advised that WorkSafe will not facilitate entry to James Simpson without following the site safety rules.

    01.05 James Simpson phoned advising that they were now speaking and that the duty holder would show him the paper work requested.

    01.18 James Simpson phoned and advised that communication broke down. I advised him that I could not facilitate entry to the site without him following the site safety rules.

    01.35 I phoned Brendan Malone who advised that he 'extended an olive branch' however communication broke down when James Simpson continued to request further paperwork that Brendan Malone considered went beyond the duty holders reasonably practicable obligations. Brendan Malone advised me on the emergency plans in place and advised that he would send me copies of any documents I requested. I did not see any immediate risk, nor any deficiencies within the emergency procedures.

    Details Confirmed by on site contact

210    Having failed to persuade Simpson that he should leave the site voluntarily, Inkster told Simpson that he was trespassing and that he (Inkster) would call the police to have him removed. That call was made. Received into evidence were two police reports pertaining to the events that took place at the Eumemmering Creek Site on 29 and 30 April 2017. The first records that, at approximately 11:45pm on Saturday, 29 April 2017, Inkster called the police to request assistance. It records “matthew from fulton hogan” having indicated that “a union official from cfmeu has gone onsite without permission in attempt to shut it down and cause issues”. It was common ground between the parties that two police officers later attended at the Eumemmering Creek Site, where they spoke with Inkster, Malone and Simpson. Simpson’s oral evidence about that exchange was as follows:

Okay. And when the police arrived, did they speak to you?---Yes, they did.

What did they say?---Just asked me what I was doing there and so forth. And they came up to me when I was at the barriers. I had all my permits out and everything. I explained to them, “I want to go through some safety concerns.” Gave them a quick down – a quick rundown on what the REO and everything is and what I was doing.

In your understanding and your exchange with them, did they have an understanding of what a person like you, a permit holder, would be doing on a site like that?---No, they didn’t have an understanding of it.

Okay. And so what did they say to you?---Well, after I explained to them what I was trying to do and gave them as much information, on the other side of my suspected contraventions where it actually says “please turnover” on the other side of that, and I don’t think we – we ever photocopied it – but it gives you all the legislation and – and that for – to pass onto someone in that case so it can explain to them. And then it will have in brackets “OH&S Act”, blah, blah, blah. I can’t remember.

HIS HONOUR: This is pre-printed, is it, on the back?---This is pre-printed on the back of every one, yes.

I see?---I don’t think we – yes, we never photocopied it. I haven’t seen it so far, but anyway. And I just explained to them, “Look, this is what I’m doing. I strongly suggest that you talk to your senior sergeant and – and get some more information about what’s happening and I will wait here.”

DR BOAS: Okay. And what happened then?---They walked off, and I just waited there at the water barriers.

All right. And what happened then?---They – after a brief period of time, maybe 10, 15 minutes of discussion on the phones and talking to Fulton Hogan and that they came back. They said, “Well, look, we’re not going to do anything. You know, what are your concerns, da, da, da. Stay in this area.” I said, “No dramas. I will stay here. All good.”

211    The reference to “this area” appears, by all accounts, to have been a reference to the area in or around which the water-filled barriers were situated, at the top of the Creek Access Ramp. It is apparent, then, that some kind of accord was struck at least as between Simpson and the two police officers, whereby Simpson agreed that he would remain at the water-filled barriers at the top of the Creek Access Ramp. The relevant police record suggests that, at some point, the officers spoke to their (or a) senior sergeant, a course that Simpson told the court that he had recommended. The officers otherwise did not take steps to remove Simpson from the site, and thereafter left. From the first of the two police records, it appears that they left at approximately 12:40am on Sunday, 30 April 2017, apparently having concluded that the dispute in respect of which they had been called was a “civil issue”.

212    Later, after the police had left the site—and despite having, as he accepted during his evidence, agreed with them that he would remain at the water-filled barriers at the top of the Creek Access Ramp—Simpson decided that he would venture up to speak with the driver of the mobile crane that had been situated on the out-bound bridge deck (an episode that has already been recounted in some detail). After that occurred (and perhaps some time after), Inkster rang the police again and requested further assistance. It would appear that he did so after speaking again to Ms Lewis (or, at any event, to a WorkSafe representative) but whether that is so or not is not material.

213    Inkster’s evidence was that he “spoke to the same senior sergeant” and that he was told that the police “had more pressing matters” with which to deal. The police record of that later request for assistance recorded as follows (errors original):

not a police issue. 2nd call from comp re issue. s/t comp via phone. advised circumstances haven’t changed. comp stated, s/t linda louise of worksafe re issue. stated worksafe recommended he be removed from site.

…

police contacted linda worksafe via phone. same stated advise given to cfmeu male to leave site however not enforceable. worksafe advised wont be attending. civil matter only not enforceable by police

214    Despite apparently being told that WorkSafe’s position was that Simpson’s entry onto the Eumemmering Creek Site would not be facilitated for want of his compliance with “site safety rules” (above, [209]) and that he ought to leave the Eumemmering Creek Site, the police did not return to the site or take any steps to remove Simpson from it. A decision appears to have been made that Simpson’s attendance at the site was “not a police issue” and was a “civil matter only”. Those conclusions were very much mistaken. As has been established, Simpson was not entitled to remain at the site. His presence there was no less a “police issue” than the presence of an unwelcome visitor at a private residence would have been. If the conclusion to which Victoria Police was drawn was that Simpson’s attendance at the site was lawful, then the most that might be said about it is that it was wrong. But that conclusion does not appear to have been drawn (an observation that I make conscious that what evidence there is has been compiled without police input). Indeed, it appears not to have been drawn, given the arrangement that the police struck with Simpson before leaving the site (namely, that he would remain at or around the water-filled barriers at the top of the Creek Access Ramp).

215    Those observations should not be mistaken for criticism of Victoria Police. Whether Victoria Police might validly be criticised for enforcing the law in a lazy, partisan or selective manner does not presently arise and is for others to contemplate. At issue presently is that the police response—or non-response—to the events of 29 and 30 April 2017 partly constitutes the context that informs the court’s assessment of Simpson’s conduct.

216    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (Castlemaine Police Station Case) (2018) 258 FCR 158 (Dowsett, Tracey and Charlesworth JJ), this court made the following observations (at 165-166 [38]-[41]) about conduct that might sink to the standard of impropriety against which s 500 of the FW Act is designed to protect:

38    The improper acts, comprehended by s 500, are acts other than those involving obstruction or hindering. It is not necessary that the acts were intended to be improper: cf Setka v Gregor (No 2) (2011) 195 FCR 203 at [30], [35]-[37] (Lander, Tracey and Yates JJ). See also Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106] (Mansfield J).

39    All parties accepted that an objective assessment of Mr Tadic’s actions was needed to determine their propriety. They were correct to do so. As Mansfield J held in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106]-[107]:

106    Consequently, as they were seeking to exercise powers under Pt 3-4 of the FW Act, s 500 may be contravened when their conduct exceeds that authorised by the exercise of those rights. Section 500 requires an objective assessment or determination whether there was conduct or action of an improper manner. It does not depend upon intention.

107    In R v [Byrnes] and Hopgood (1995) 183 CLR 501, the High Court said in the majority judgment at 514-515:

Impropriety does not depend on an alleged offender’s consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged defendant by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case. When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important: the alleged offender’s knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused. But impropriety is not restricted to an abuse of power. It may consist in the doing of an act which a director or officer knows or ought to know that he has no authority to do.

(Emphasis added.)

40    In Director of the Fair Work Building Industry Inspectorate v Bragdon (2015) 147 ALD 373 at [97] Flick J held that “improper conduct” is conduct “which falls below that standard which can reasonably be expected of those who occupy positions of responsibility”.

41    As Barker J pointed out in Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (2017) 270 IR 190 at [169]-[170] the dictionary definition of “manner” refers to a “way of doing, being done, or happening; mode of action, occurrence, etc”. As a result, what the actor said “and its effect, and how he spoke, all may potentially comprise conduct falling under the ruling ‘act in an improper manner’”.

217    The respondents contended that conduct that amounts to a contravention of s 499 of the FW Act cannot, without more, also amount to a contravention of s 500. That submission is contrary to authority and I reject it. As Tracey J put it in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2016] FCA 872, [69]:

…There is no reason why the same conduct might not be found to give rise to a contravention of both ss 499 and 500.

218    I would venture somewhat further: conduct engaged in in contravention of s 499 of the FW Act will usually—and probably always—amount also to a contravention of s 500. Indeed, I confess some difficulty in conceiving of circumstances in which conduct that is engaged in during the purported exercise of rights in accordance with pt 3-4 of the FW Act and that amounts to the contravention of a civil remedy provision provided for by that part might somehow not also be improper (in the sense that, as the authorities contemplate, it falls below the standard of conduct that might reasonably be expected of a permit holder): see, by parity of reasoning, Director of the Fair Work Building Industry Inspectorate v Cartledge (2015) 239 FCR 405, 435 [171] (Mansfield J); cf Australian Building and Construction Commissioner v Upton (2017) 270 IR 190, 231 [168] (Barker J).

219    In saying so, I should not be understood to suggest that any failure, on the part of a permit holder, to satisfy the statutory requirements that condition the exercise of rights must necessarily involve relevant impropriety: see, on that score, Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473, 478 [7] (Allsop CJ), 512 [200]-[201] (White J). This case is not concerned with a permit holder’s failure to satisfy the requirements that enlivened a right that was exercised, or sought to be exercised. Here, Simpson engaged in conduct that the statute prohibited. It is in that conduct that the relevant impropriety arises—certainly in this case; and probably always. To conclude otherwise would be to accept that it is within the bounds of reasonable expectation that permit holders might, whilst exercising statutory rights under pt 3-4 of the FW Act, conduct themselves in contravention of statutory injunctions.

220    I do not accept that permit holders are reasonably afforded that latitude. Particularly is that so where, as here, the statutory injunction that has been contravened itself pertained to the exercise of rights of entry. Permit holders who exercise rights in accordance with pt 3-4 of the FW Act are reasonably expected not to contravene civil remedy provisions such as s 499 when doing so. When they fail to meet that expectation, they engage—typically if not always—in improper conduct that excites the application of s 500. Whether that might sound in the attraction of any greater sanction is another question, to which attention might turn at a later juncture: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2019) 272 FCR 290 (Bromberg, Wheelahan, Snaden JJ).

221    I have no hesitation accepting that, by his conduct in contravention of s 499 of the FW Act—that is to say, by his having exercised a State or Territory OHS right despite not complying with reasonable requests to observe occupational health and safety requirements in place at the Eumemmering Creek Site—Simpson acted in an improper manner and, thereby, in contravention of s 500.

222    I also accept that the manner in which he conducted himself to that end was relevantly improper, insofar as he refused multiple demands that he vacate the site and attracted, as inevitably he had to, the diverted attention of at least Malone, Inkster, Langley and Virant-Bell. Having reasonably been asked to comply with applicable occupational health and safety requirements and being unable or unwilling to do so, Simpson was not lawfully entitled to remain at the Eumemmering Creek Site on 29 or 30 April 2017. By remaining at it, despite unambiguous demands by its occupier that he leave, he might well have engaged in criminal conduct: Summary Offences Act 1966 (Vic), s 9(1)(f); Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46, 54 [44] (Buchanan, Reeves and Bromberg JJ). Whether he did or not can be left for others to debate. I am, in any event, very comfortably satisfied that his insistence upon remaining at the site in the circumstances that he did was relevantly improper. It was so notwithstanding the inaction of Victoria Police.

223    It is not to the point that Simpson’s misconduct did not visit any “actual detriment”. That may serve as a circumstance that should inform the relief that the court might grant in light of the contravention that has been established; but it does not inoculate his conduct against the characterisation that I readily attribute to it. It was improper.

5.8 Sundry consideration regarding Simpson’s vehicle

224    The analysis above addresses the case that the Commissioner advanced. There remains, however, one additional issue to which some consideration should be given.

225    There was, during the trial, some debate about whether or not the vehicle in which Simpson drove to the Eumemmering Creek Site was one that complied with rules established by Fulton Hogan concerning vehicles that entered onto its sites—and, most specifically, was one upon which a flashing orange beacon was in place at the time that Simpson drove it to the site. Conflicting evidence was led on that score.

226    It is not necessary to resolve that conflict. That is so for the following reasons, namely that:

(1)    prior to his arrival at the Eumemmering Creek Site, no request was—or, indeed, could have been—raised with Simpson that his vehicle should have a flashing orange beacon attached to it;

(2)    in the absence of such a request, s 499 of the FW Act is not enlivened;

(3)    it is neither suggested nor pleaded that any failure on Simpson’s part to drive to the site in a compliant vehicle (if indeed he did not do so) was improper for the purposes of s 500 of the FW Act;

(4)    there are no issues of credit whose resolution turns upon, or might otherwise be informed by, which version of the evidence about Simpson’s vehicle should be preferred; and

(5)    any finding about the state of Simpson’s vehicle would not have any measurable impact upon or relevance to the question of what relief the court might grant in light of the statutory contraventions that the Commissioner has established.

227    For those reasons, I need not say anything further about the state of Simpson’s vehicle.

5.9 Conclusion

228    I am satisfied that the contraventions of ss 499 and 500 of the FW Act that the Commissioner alleges against Simpson are made out.

Part 6: The Gate 24 Incident

229    The Commissioner alleges that Clark contravened s 500 of the FW Act by his conduct during the Gate 24 Incident that took place during the morning of Thursday, 4 May 2017. The only issue in dispute is whether Clark did what the Commissioner alleges that he did: that is, whether Clark snatched Langley’s mobile telephone out of his (Langley’s) hand and threw it to the ground. For the reasons that follow, I am not persuaded that he did.

6.1 Langley’s evidence

230    Langley gave evidence that he was at the Gate 24 Site at approximately 9:00am on Thursday, 4 May 2017, when Simpson and Clark arrived. Upon their arrival, he asked Simpson and Clark why they were there and then requested that they “show [him] their right of entry [permits]”. That occurred in the centre median area of the Gate 24 Site, approximately ten metres from where the truck had rolled onto its side. Having met him before, Langley knew who Simpson was. He did not know who Clark was.

231    Following Langley’s request, each of Simpson and then Clark produced his entry permit. All three were, at the time, standing adjacent to a barrier that rose from ground level to approximately waist height. When Clark produced his permit, Langley took it, placed it on top of the barrier and then took a photograph of it using his mobile telephone. As (or, perhaps, not long after) he did so, Clark told Langley that he (Langley) could not take a photo of his permit. The two were facing each other at that time.

232    According to Langley, Clark next “…pushed against my right shoulder, grabbed my phone and threw it on the – on the ground”. As the phone hit the ground, Langley asked a nearby police officer or officers (who were in attendance dealing with the crashed truck) whether they had seen what had just occurred. They indicated that they had not.

233    Under cross-examination, Langley agreed that he had responded to the comment that Clark had made about not photographing his permit with words to the effect of, “I will take photos of anything I like”. He denied then moving his telephone up into Clark’s face in an aggressive manner. He also denied that he was angry at that stage and claimed, instead, that he was “calm”. It was put to Langley—and he denied—that Clark had raised his hand to defend himself and, in the process of doing so, had inadvertently knocked Langley’s phone to the ground.

234    Langley also stated, under cross-examination, that he remained “calm” even after he lost his grip on his phone. When it was put to him that another witness, Malone, had told the court that he (Malone) had gone over to Langley, at that point, and told him to “go and cool down”, Langley’s evidence was that he could not recall that having occurred. He then qualified his earlier evidence (to a degree), stating “I don’t recollect being angry, upset”.

235    Langley also told the court that he spoke to Inkster “later on” about what had happened to his telephone. Inkster arranged for it to be replaced (which appears to have been necessary on account of damage that it sustained from having fallen to the ground). Later, Langley said that that discussion with Inkster had taken place “The next day, that afternoon”.

6.2 Clark’s evidence

236    Clark told the court that, upon his arrival at the Gate 24 Site, he introduced himself (or was introduced) to Malone, with whom he then had a discussion about the truck that had crashed there earlier that morning. At some point, Langley came “…over to look – look at our permits”. Clark had not previously met Langley. Clark’s evidence was that he had two entry permits—one “federal” and one “state”—which he had had laminated as a single, back-to-back document.

237    Clark described Langley as “quite aggressive from the…get go”. Upon being provided with a copy of Clark’s entry permit, Langley (according to Clark), “Then just out of the blue…snapped a photo of my permit”. At that point, Clark said that he “turned around and said, ‘What are you doing? You can’t take a photo of my permit’”, and then “snatched it back off him.” His evidence proceeded:

DR BOAS: What happened then?---Then he turned around and said, “I will take a photo of whatever I like”, and then just shoved his phone straight up in my face.

And what did you do?---I instinctively, I just put my hand up and – and I did say something like, “Don’t be a dickhead”, and – and his hands come up and hit my hand and he has dropped his phone.

Okay. It has been put in evidence by Mr Langley in this proceeding that you pushed his right shoulder?---There’s no way I touched Mr Langley.

Okay. And it has been put that he – that you grabbed the phone out of his hand and threw it on the ground?---No. I – I did not grab his phone and throw it out of the hand – out of his hand and throw it on the ground. His hand actually hit mine when I put my hand up just to – to, sort of, like, stop him from throwing something in my face and – and he dropped his phone.

238    Clark explained that there were a couple of police officers within a few metres of he and Langley at the time that the exchange took place. He did not have occasion to discuss with them what had occurred. After the incident with the phone took place, Langley “went away”, and Clark and Simpson “continued to hang around waiting for the process to – to start up”. From context, I infer that his reference to “the process” was a reference to the process of recovering the crashed truck (but nothing turns on that). Clark had a discussion with Inkster; but it is not apparent that that discussion touched in any way upon the exchange that he had just had with Langley.

6.3 Other evidence

239    Although he was present in the vicinity at the time that the exchange between Langley and Clark took place, Malone did not witness it. His attention was, instead, focused upon the crashed truck and the efforts that were underway to deal with it.

240    Malone recalled that Clark and Langley were situated adjacent to a barrier, and that they were facing each other, at least at the point that he came to notice them. He recalled that there had been something of a disagreement between them, which arose when Langley attempted to take a photograph of Clark’s entry permit. Malone overheard some “gruff words” along the lines of, “you can’t fucking do that”. He did not see what then occurred but he did witness its immediate aftermath. He told the court that “Gordon and Peter were very close” and that, “at that point, I walked over to Gordon and said, ‘Off you go, mate. You need to cool off’”.

241    Malone described Langley as “a passionate, old-school supervisor [who is] generally…very good-natured and well-liked”. The Gate 24 Incident was the only occasion on which he had ever seen Langley “angry”.

242    Inkster was also at the Gate 24 Site in the morning of Thursday, 4 May 2017. He did not see the exchange that took place between Clark and Langley; but he did have a conversation with Langley about it before leaving the Gate 24 Site. He told the court that Langley had told him “…that Peter Clark had hit his phone out of his hands or – or words to that effect”. He could not recall what, if anything, he said in reply to Langley, and confirmed that he did not make any note of what Langley had recalled to him.

243    Simpson also told the court that he did not see the exchange that took place between Langley and Clark at the Gate 24 Site on 4 May 2017. He said that he “heard a bit of a commotion” but he could not remember anything specific that was said as between Clark and Langley.

6.4 Resolution of the evidential conflict

244    I am not persuaded that the Gate 24 Incident transpired as Langley recalled it. There are several bases for my having taken that view. Before identifying them, some comment should be offered about the evidence that Langley gave.

245    The respondents submitted that Langley’s evidence should be rejected because it was “often at odds with the evidence of others [and h]e was combative”. They suggested that Langley “…was overall a witness who was unprepared to make appropriate or reasonable concessions…” and “…was not a credible and disinterested witness generally [and] certainly in respect of his state of mind and conduct at the time of this [Gate 24 I]ncident”.

246    I do not accept those criticisms. At least insofar as concerned their evidence about the Gate 24 Incident, both Langley and Clark impressed as honest and attentive witnesses. I did not detect any sense that either was prepared to colour his evidence in the service of any particular outcome. Their conflicting accounts of what occurred is explicable in the same way that most conflicting evidential accounts are: they simply have different recollections of what occurred in, at most, the matter of seconds over which the incident played out. One recollection must be less imperfect than the other; but I do not attribute that to self-interest, or to any want of candour or diligence.

247    Pushing somebody, taking their property and deliberately damaging it is, on any view, very serious conduct. As the respondents (I think rightly) contended, it is unlikely that conduct of that nature would not have been subjected to greater scrutiny at the time if it had occurred. All the more is that so given the presence of police officers at the time. What Langley described amounts, it would seem, to an assault and the deliberate destruction of his (or Fulton Hogan’s) property. Yet, save for asking them whether they had seen what had occurred, Langley appears to have made no effort to describe to the police the very serious, if not criminal, conduct that he now attributes to Clark. There might well be a good explanation for that. On balance, though, Langley’s failure to raise what he said occurred with the police that were present at the time inclines against the acceptance of his evidence.

248    Equally, it seems unlikely that, having been the victim of that very serious (if not criminal) conduct, Langley would not have taken some step internally (that is, within the confines of Fulton Hogan’s management) to address it. Other than complaining to Inkster that Clark had “hit his phone out of his hands”, Langley doesn’t appear to have made any effort to document what he claims occurred. His discussion with Inkster might not have taken place until the following day. That is difficult to reconcile with the otherwise very serious conduct of which Langley claims to have been a victim.

249    The exchange between Clark and Langley was, on any view, over within seconds. Despite Langley’s evidence to the contrary, it is apparent that it was characterised by at least some aggression, most likely from both men: manifesting, in Clark’s case, in his protests against Langley’s proceeding to photograph his entry permit; and, in Langley’s case, in his apparently needing to “cool off” (a circumstance that, it might be said, is consistent with both narratives). The scope for conflicting accounts of such charged and short-lived events is apparent. As I have already made clear, I find Clark’s account to be more persuasive; but not because I consider that there is any reason to treat Langley’s evidence with scepticism or special caution.

6.5 Conclusion

250    The Commissioner’s case in respect of the Gate 24 Incident is not made out.

Part 7: The excavator inspection Incident

251    As has already been recited, the Commissioner’s case, insofar as it focuses upon the Excavator Inspection Incident, is that Simpson acted in an improper manner whilst exercising, or seeking to exercise, rights in accordance with pt 3-4 of the FW Act. The impropriety is said to have manifest in Simpson’s issuing of the Excavator Notice, and his subsequent inspection of the machine and discussion with its operator (and, in particular, in the disruption that that visited upon the gantry protection works that were otherwise to be undertaken at that site). Clark faces equivalent allegations: his impropriety is said to arise by reason of his participation in the inspection and discussion that followed the issuing of the Excavator Notice. At the heart of the Commissioner’s complaint is the allegation that neither Simpson nor Clark reasonably suspected that there was anything about the machine that was contrary to the requirements of the OHS Act or regulations made thereunder. Their impropriety is said to exist, substantially (though not wholly), in the disruption to the Project works that was caused by the prosecution of their concerns.

252    Additionally, the Commissioner alleges that each of Simpson and Clark misconducted himself by using the occasion of their discussion (or, in Clark’s case, his involvement in Simpson’s discussion) with the excavator operator as an opportunity to raise matters unrelated to safety.

253    It is convenient to consider the individual components of the Commissioner’s allegations.

7.1 The existence of a reasonable suspicion

254    Simpson and Clark both maintained that, from their initial review of the excavator, they had reason to (and did) suspect that it had not been properly maintained.

255    As with Simpson’s attendance at the Eumemmering Creek Site on 29 and 30 April 2017, there is ample basis for suspecting that, in fact, Simpson and Clark did not form (or reasonably form) the suspicion upon which they purported to act by issuing the Excavator Notice. Clark’s evidence was that, after the issue of Fulton Hogan’s compliance with its traffic management plan at the Gantry Works Site had been resolved, Simpson asked him, “What do you think about the excavator?” Clark told the court that he responded, “Well, I think it’s a bit scruffy.” Under cross-examination, he attributed that adjective—“scruffy”—to Simpson.

256    Clark elaborated upon that theme:

What did you mean by that when you used the term “scruffy”?---Well, a quick look at it you could see that it had a fair bit of grease and oil stains on it. It had some dings and scratches and so forth. By no means it was the worst piece of plant I’ve ever seen on a construction site. That – that wasn’t the opinion, but it definitely wasn’t the best piece of plant I had seen either.

You heard Mr Sullivan say earlier that there were some grease stains on it that he considered to be normal and appropriate. Do you have any comment about that?---Around – without getting too technical, around any of the working parts of the machine – so where all the arms connect and all the rest of it, they’re connected by large steel pins. The large steel pins will always have a grease nipple attached to them and you will grease them, and good maintenance is always first thing in the morning the operator would get out there and – and just give a couple of pumps of grease around all the pins. That keeps everything moving quite well. So you would always expect to see a bit of grease around the pins. That’s – that’s a standard. But if you see anything away from the pins, anything that looks like oil leaks or whatever, that is always a concern as far as my opinion that there could be other issues with the machine.

Okay. And so what did you see that triggered the conclusion that it looked quite scruffy?---There was – there was grease and – and oil in other areas, other than just around the pins themselves. There was scratches and marks on the machine. Again, if it was a machine in demolition you would expect to see dents and scratches and stuff all over it. That’s – that’s the nature of that industry. In a civil type industry, the – the machines should be in a lot more better condition. They don’t get knocked about, as such.

257    Under cross-examination, Clark told the court that his concern about the excavator was that there might be excessive, unwanted movement in the arms of the machine: that the controls could cause it to “…jerk and move a bit too quick”, which in turn “…could put somebody in danger if they were too close.”

258    Simpson told the court that he “…noticed that the excavator had grease in all its joints [and the] grease was spurted out and there was dirt all over the grease and it looked – looked dirty and unkempt to [him]”. Under cross-examination, he conceded that he did not, at the time, have a good understanding of why there was grease around the excavator’s “grease points” and that he had “no real expertise” in looking after excavators—a reality that he attributed to his relatively recent assumption of responsibility within the Union and his prior work history as a bricklayer. Although the machine had been operating at the time that Simpson and Clark arrived at the Gantry Works Site, neither gave evidence that its movements were jerky or “a bit too quick”.

259    The evidence of Fulton Hogan’s witnesses was, more or less, that the excavator looked like an excavator. Malone said as much. Sullivan’s evidence was that it “looked pretty clean and tidy”. Langley told the court that it appeared to him to be “…in good nick…brand new…immaculate…[and] clean”.

260    Two issues arise for the court’s consideration: did Simpson and Clark each suspect that there was something about the excavator that suggested that there was or had been a contravention of the OHS Act or regulations made under it; and, assuming that each of them did, was that suspicion reasonable?

7.1.1 Did the suspicion exist?

261    I regard Simpson and Clark’s evidence as to the existence of their suspicion as ripe for rejection. I confess great scepticism that either of them was able, merely from glancing at an earth-working machine that wasn’t in operation at the time, to form (reasonably or otherwise) any suspicion that Fulton Hogan was contravening or had contravened the OHS Act or any regulations made under it. I would require minimal persuading that they simply and instead wished to satisfy themselves that the machine was in good working order. Their concern, if there was one, seems more in the nature of those that Simpson had been keen to agitate at the Eumemmering Creek Site a few days earlier: it seems to have been more exploratory than investigative.

262    Nonetheless, that was the evidence that Simpson and Clark gave and I would be slow to reject it in the absence of some other evidence that warranted my doing so; slower still to reject it in the absence of an invitation that I should. It is not the Commissioner’s case that Simpson and Clark (or either of them) lacked a suspicion that there was something about the excavator that foretold of a contravention or contraventions of the OHS Act (or the regulations made under it) having occurred. What is put is that that suspicion was not reasonably formed.

263    I proceed, then—despite the hesitation to which I have adverted—on the apparently uncontroversial basis that each of Simpson and Clark suspected, from nothing more than their observations of it, that there was something about the excavator that suggested that Fulton Hogan was contravening or had contravened the OHS Act or regulations made thereunder.

7.1.2 Was the suspicion reasonable?

264    The Commissioner maintains that Simpson and Clark’s suspicion was not reasonably formed because, in truth, there was nothing about the appearance of the excavator that was capable of sustaining the view that Fulton Hogan had contravened or was contravening the OHS Act or regulations made under it. The respondents, on the other hand, maintain that the excavator was relevantly “scruffy”, such that, from its appearance alone, the suspicion that each of Simpson and Clark formed was formed reasonably.

265    Throughout the course of the trial, the question presently in focus was said to turn solely upon the evidence that was led about the excavator’s appearance, and the impressions that formed consequently in Simpson and Clark’s minds. The respondents did not, at that stage, advance by way of defence any submission that the reasonableness of the suspicions that Simpson and Clark had formed vis-à-vis the excavator was an issue in respect of which the pleadings provided any answer.

266    But, as always, the pleadings are critical. The Commissioner’s statement of claim alleges—and the respondents’ defence concedes—that, at all material times during their excursion to the Gantry Works Site on 4 May 2017, each of Simpson and Clark was “…exercising, or seeking to exercise, a State or Territory OHS Right [and, by reason thereof, was] exercising, or seeking to exercise, a right in accordance with Part 3-4 of the FW Act”. Plainly, that must include the time that was spent at that site immediately prior to and then after the Excavator Notice was issued, including the time that was spent inspecting the excavator and its logbooks, and talking to its operator.

267    The only rights under the OHS Act that either of Simpson or Clark might sensibly be thought to have been exercising, or seeking to exercise, at the Gantry Works Site on 4 May 2017 are those that were conferred upon them by ss 87(2) and 89(1) of the OHS Act. Each of those rights—namely, the right to enter (and, clearly enough, to remain upon) premises and the right to inspect equipment and records, in each case for the purposes of investigating reasonably suspected contraventions of the OHS Act or the regulations made under it—were conditioned (as those descriptions imply) upon relevant authorised representatives having formed a reasonable suspicion that a statutory (or regulatory) contravention had occurred or was occurring.

268    Several months after the court’s judgment in this matter was reserved, the parties were invited to file submissions as to whether the Commissioner should be understood, as a consequence of the pleadings (rather than the evidence that was led about the state of the excavator when Simpson and Clark happened upon it), as having conceded the existence of the reasonable suspicion that he now contends was lacking in the minds of Simpson and Clark when the Excavator Notice was issued and the subsequent inspections and discussions took place. Both sides accepted that invitation.

269    The respondents submitted that the pleadings (as summarised above) made it “…impossible to find that [Simpson and Clark] lacked a reasonable suspicion in respect of the excavator…” The Commissioner took the opposite view.

270    Specifically, the Commissioner contended that no relevant concession could be read into the pleadings because:

…it is not suggested in the pleaded claim, nor implied by necessity, that the [Excavator Notice] founded the exercise, or the seeking to exercise, of a State or Territory OHS right during the Second 4 May 2017 Entry in any way. The State or Territory OHS right that Simpson and Clark were exercising or seeking to exercise throughout the entirety of the Second 4 May 2017 Entry related to their safety concern about the protection of workers working on the side of the freeway, raised in the First Notices. This was pleaded by the Applicant, admitted by the Respondents, and the basis on which the trial ran…

271    By his post-hearing submissions, the Commissioner also (and fairly) made much of the way that the respondents conducted their defence: in particular, that they approached the question as to whether Simpson and Clark’s suspicions about the excavator were reasonable was one that fell to be determined on the evidence that was led about its appearance, rather than on the state of the pleadings.

272    The Commissioner’s contention is that the issuing of the Excavator Notice, and the subsequent engagement in the inspections and discussions that followed it, were events that took place whilst Simpson and Clark were exercising or seeking to exercise relevant rights but that did not, in and of themselves, amount to such exercises or attempted exercises. Instead, the Commissioner maintains that that conduct was engaged in whilst Simpson and Clark were exercising rights in connection with their initial concerns about workers working in proximity to live traffic (see above, [25]-[28]).

273    It is to be recalled that the state of the excavator was not the reason for which Simpson and Clark initially made their way to the Gantry Works Site. Initially, their concern was that there was inadequate protection in place to protect workers from errant traffic. Having formed the concerns that they formed about the works occurring in proximity to live traffic, Simpson and Clark each issued Fulton Hogan with a “notice of suspected contravention”. Both referred expressly to there being inadequate “protection for workers” from the risks of nearby traffic. Neither made any reference to the state of the excavator. The state of the excavator was initially irrelevant.

274    Simpson and Clark’s initial concerns were addressed by means of the discussions that they had with Sullivan, Malone and the two WorkSafe Victoria representatives who were in attendance at the Gantry Works Site, as well as by the resolution that was agreed to in consequence of those discussions (above, [28]). The state of the excavator assumed prominence only once Simpson and Clark’s initial concerns were resolved. Nothing that Simpson or Clark did after that point of resolution could sensibly be thought to have been done in connection with the initial concerns that brought them to the site in the first place. Those concerns—that is to say, the reasonable suspicions that Simpson and Clark formed for the purposes of ss 87(2) and 89(1) of the OHS Act in respect of workers’ proximity to live traffic—were extinguished by the time that any issue arose about the state of the excavator. Indeed, following the point in time from which those initial concerns were addressed, it is not possible to nominate—and neither the pleadings nor the Commissioner’s post-hearing submission identified—any “State or Territory OHS right” that either of Simpson or Clark possessed (much less exercised or sought to exercise) in connection with his initial concerns about workers’ proximity to live traffic.

275    The pleaded case, however, was that each of Simpson and Clark was, throughout the time that was spent at the Gantry Works Site, exercising or seeking to exercise such a right or rights. Necessarily, each was doing so at the point that the Excavator Notice was issued, and throughout the subsequent inspections and discussions that ensued. In light of the conclusions recorded in the previous paragraph, Simpson and Clark’s continued presence at the Gantry Works Site and their subsequent inspection of the excavator must necessarily be understood as conduct by which they exercised, or sought to exercise, rights under the OHS Act.

276    Having pleaded that, throughout the time that was spent at the Gantry Works Site, each of Simpson and Clark was exercising or seeking to exercise a “State or Territory OHS right”, it is necessarily implicit that each must be understood to have reasonably formed a suspicion related to the excavator that Fulton Hogan had contravened or was contravening the OHS Act (or the regulations made under it). The issuing of the Excavator Notice, and the subsequent inspection of the machine and its log books was part and parcel of the conduct by which Simpson and Clark exercised, or sought to exercise, the “State or Territory OHS right[s]” whose exercise or attempted exercise was pleaded and admitted. Given that it is only upon the formation of a reasonable suspicion that the existence of any right that was exercised, or sought to be exercised, could possibly have arisen, that conduct must, by necessity, have been engaged in by way of investigation of that suspicion.

277    That being so, the Commissioner cannot succeed in establishing a want of reason in the suspicions that I have, albeit with some scepticism, attributed to each of Simpson and Clark.

278    But for the resolution of that circularity, I would have had little hesitation in accepting the Commissioner’s submission and finding that neither Simpson nor Clark reasonably suspected that there was anything about the excavator that suggested that Fulton Hogan was contravening, or had contravened, the OHS Act or the regulations made under it. For reasons to which I have already adverted, their evidence about the appearance of the machine was singularly unpersuasive. The evidence that the machine had grease and dirt on it seems to reflect nothing more than that it was an excavator, which one might imagine would typically (if not always) exhibit unremarkable signs of lubrication and use. Despite apparently forming the view that they each said that they formed, neither of Simpson or Clark was moved to record in photographic form the excavator’s “scruffy” or “shabby” appearance. That was despite Clark’s evidence that it was his usual practice to photograph things that he felt were matters of safety-related concern. The limited photographic evidence that there was of the excavator’s appearance on 4 May 2017 did not, as Clark properly acknowledged under cross-examination, show anything untoward about it. Had it been necessary to do so, I would have had little hesitation in accepting that the suspicion that Simpson and Clark held (assuming that it was held at all) was not a suspicion that was reasonably held.

7.2 Impropriety arising from the absence of a reasonable suspicion

279    Had I been minded to find that Simpson and Clark lacked a reasonable basis for suspecting that there was something about the excavator that suggested that Fulton Hogan was contravening or had contravened the OHS Act (or the regulations made under it)—and also, somehow, that the conduct in which they engaged was nonetheless engaged in in the course of their exercising or seeking to exercise rights in accordance with pt 3-4 of the FW Act—there is little doubt that that conduct would have been relevantly improper.

280    It is not in dispute that a consequence of the Excavator Notice and the inspections and discussion that followed it was that work at the Gantry Works Site was delayed for a period. The evidence about how long that delay lasted was inconsistent but it doesn’t really matter. Even assuming that the delay was at the shorter end of what the evidence suggested (approximately ten minutes), if the conduct that visited it was based upon a contrived or unreasonable safety concern of the kind alleged, I would have had no hesitation in concluding that that conduct was relevantly improper. The respondents—I think fairly—offered only muted resistance on that front.

7.3 Impropriety manifest in discussions about matters other than safety

281    During the course of their inspection of the excavator and/or its logbooks, Simpson (and possibly also Clark) engaged in a discussion with the excavator operator. The particulars of that discussion are the subject of evidential conflict; but it is not in dispute that Simpson gave the operator his (Simpson’s) business card and said words to the effect of, “give me a call and we can sort out any problems”.

282    Inkster’s evidence was that Simpson told the operator “it’s unsafe to be working here” and “our blokes would never work here under these conditions”. Inkster also told the court that he heard Simpson ask the operator whether he was covered by “a CFMEU agreement” (which, I would infer was a reference to whether or not the operator was covered by an enterprise agreement made under the FW Act with the input or agreement of the Union). Langley’s evidence was that Simpson said to the operator words to the effect that his “boss was ripping him off”. Simpson denied making any of those remarks. Clark and Malone were unable to say either way whether he did.

283    Although, for the reasons to which I shall shortly come, it doesn’t much matter, I prefer the evidence led by the Commissioner. I accept that, in the course of his discussion with the excavator operator, Simpson said the words that Inkster and Langley attributed to him. As with his evidence about the “unkempt” and “shabby” appearance of the excavator, Simpson’s evidence about the discussion that he had with the operator was unpersuasive. In part—and in fairness to him—that was due to his degraded memory of the discussion, which he did not attempt to disguise under cross-examination. It also reflects my scepticism, expressed above, as to the nature and reasonableness of the suspicion that Simpson claimed to have formed. Given what I have already observed on those scores, I have little hesitation in accepting that Simpson saw fit to engage with the excavator operator on issues that went beyond matters of safety.

284    The Commissioner submits that “…it is improper for a permit holder, entering a premises under the auspices of a safety concern, to use the opportunity to hold an unrelated discussion with an employee.” No authority was cited in support of that submission and, with respect, I do not accept it; at least not at the broad level at which it was pitched. Plainly, engagement in discussions about non-safety matters might well serve to inform whether a permit holder exercised, or sought to exercise, a State or Territory OHS right on a particular occasion. If, from the engagement in such discussions, it might be inferred that the permit holder had sought to use safety as a Trojan horse through which to achieve what, in truth, was some other purpose (for example, an industrial objective), that might well lead to a conclusion that the permit holder did not, in fact, hold any suspicion sufficient to enliven a State or Territory OHS right. But, for reasons already stated, that issue has been decided: I accept that Simpson and Clark, when they inspected the excavator and its logbooks (and when they had their discussion with the operator in the course of undertaking those inspections), were each exercising or seeking to exercise a State or Territory OHS right.

285    If, in the course of exercising, or seeking to exercise, a State or Territory OHS right, a permit holder were to observe and have occasion to raise for discussion a matter unrelated to the safety concern or concerns at the core of that exercise, there is no reason in principle why his or her doing so should automatically qualify as improper for the purposes of s 500 of the FW Act. No doubt there will be cases in which it might; but the point at which the proverbial line is crossed will depend on context and circumstance.

286    It is in that sense that the evidence in the present matter falls short. There is very little, if any, evidence about the context or circumstances within which the exchanges as between Simpson and the excavator operator took place. It is known, of course, that the exchanges occurred in the course of the inspection of the excavator and/or its logbooks. But the detail of the discussion between Simpson and the operator—including, for example, what prompted it—went largely unexplored. The operator himself was not called to give evidence: a circumstance to which the respondents fairly attributed some significance.

287    Although the Commissioner requires only proof to the civil standard, there must nonetheless be evidence sufficient to move the court to be satisfied that that standard has been met. On the evidence that was received, I do not accept that Simpson (or Clark, to the extent that he was or might have been part of the discussion with the excavator operator) acted improperly by saying or doing the things that I have accepted were said or done.

7.4 Clark’s accessorial liability

288    In light of the conclusion above, it is unnecessary to say much about the accessorial case that the Commissioner advanced against Clark. In the absence of a contravention by Simpson, there was nothing to which Clark might have been an accessory.

289    Had it been necessary to consider the issue—that is, had I reached a different conclusion about Simpson having contravened s 500 of the FW Act in the course of the Excavator Inspection Incident—I would not have been persuaded that Clark could fairly be said to have been involved in that contravention for the purposes of s 550.

290    In Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, White J summarised what must be shown in order to implicate a person as an accessory to another person’s statutory contravention:

[176]    Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. …

[177]    Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506–7 by Wilson, Deane and Dawson JJ …

[178]    The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503; at [324]–[325].

[179]    As indicated, these principles are not in doubt. The more difficult question arises from their application to the circumstances of this case and, in the identification of the essential facts about which an accessory must have actual knowledge.

Those observations were quoted with apparent approval in Fair Work Ombudsman v Hu (2019) 289 IR 240, 245-246 [15] (Flick and Reeves JJ).

291    In order that he might be understood to have been “involved in” any contravention by Simpson of s 500 of the FW Act, the Commissioner would need to show that Clark had knowledge that Simpson’s conduct was improper. Impropriety was one of the “essential matters” upon which Simpson’s contravention would have turned had it transpired. If Clark was unaware (or did not appreciate or think) that Simpson’s conduct was relevantly improper—if, for example, he was of the view that it was appropriate—it must follow that he cannot fairly be implicated as an accessory to Simpson’s misconduct.

292    To say so is not to suggest that Clark required knowledge that what Simpson was doing was being done in contravention of s 500 of the FW Act. An accessory need not know that the conduct of a primary wrongdoer amounts to a contravention of the law. Rather, an accessory must do something—that is, must engage in an act or omission sufficient to implicate them in the conduct of the primary wrongdoer—whilst armed with knowledge of the essential matters that render that conduct unlawful. In the context presently under consideration, one such matter is (or, but for my conclusions above, would have been) that Simpson acted improperly.

293    Even assuming that Clark might be understood to have known that, throughout the Excavator Inspection Incident, Simpson was a permit holder and was exercising or seeking to exercise rights in accordance with pt 3-4 of the FW Act, I do not accept that he can be said to have known that Simpson’s conduct was improper. It was not put to him that he did. Rather, the court was invited to infer the existence of that knowledge (or that state of belief) from his concessions that he would, hypothetically, have considered it improper for a permit holder to:

(1)    issue a notice under s 88(1) of the OHS Act without reasonably suspecting a contravention of the act (or the regulations made under it); and/or

(2)    hold a discussion with a worker about matters of employee entitlements or union assistance, rather than issues relevant to safety.

294    Those acknowledgements are not (or would not have been) sufficient to establish in Clark’s mind what I consider would need to be a state of belief that Simpson was acting improperly. The accessorial case against Clark would have failed in any event for that reason.

7.5 Conclusion

295    I do not accept that the Commissioner has made out any of the contraventions that he alleges in respect of the Excavator Inspection Incident.

Part 8: The Gate 3 Incident

296    The Commissioner alleges that Simpson contravened s 500 of the FW Act by his conduct during the Gate 3 Incident. The only issue in dispute is whether Simpson did what the Commissioner alleges that he did; that is, whether Simpson physically pushed Inkster as he proceeded to check the exclusion (or “no-go”) zones behind the crash barriers that were in place at the Gate 3 Site. The respondents (which, for the purposes of this part of these reasons, should be understood as a reference to Simpson and the Union), during the oral closing submissions that were advanced on their behalf, properly conceded that, if Simpson did what he is alleged to have done, then he will have acted improperly in contravention of s 500 of the FW Act.

297    For the reasons that follow, I am satisfied that Simpson did what he stands accused of doing.

8.1 The evidence

298    Three witnesses gave evidence directly relevant to the Gate 3 Incident. It is necessary to set out that evidence in some detail.

8.1.1 Inkster’s evidence

299    Inkster told the court that, after taking Simpson out to the Gate 24 Site, he, Langley and Simpson drove back to Fulton Hogan’s nearby Belgrave-Hallam Road Project office. Whilst there, Simpson indicated that he wished to check the exclusion (or “no-go”) zones throughout other areas of the Project. After nominating a number of areas that didn’t exist, he happened upon “gate 3”, which did. He wrote out a notice of suspected contravention under s 88 of the OHS Act pertaining to that gate, whereupon he, Inkster and Langley drove out to that site.

300    Upon arrival at the Gate 3 Site, Simpson began to check that the exclusion zones behind the crash barriers in place there were of a suitable depth. He proceeded in a city-bound direction, checking the bollards that marked out the exclusion zones as he went. Langley and Inkster followed him a few metres behind.

301    As had occurred earlier at the Gate 24 Site, Simpson eventually came to the limits of the Gate 3 Site. The crash barriers (and the exclusion zones adjacent to them) continued beyond that boundary into the next work site. As he had done at the Gate 24 Site, Simpson sought to continue to check the depth of the exclusion zones beyond the limits of the site that was the subject of the notice that he had issued under s 88 of the OHS Act.

302    It was at that point that Inkster stepped in and attempted to stop him. He told Simpson, “You can’t leave this area”. He walked from his position a few metres behind Simpson to a position immediately in front of him. With his hands raised so as to signal to Simpson that he should stop progressing along the crash barriers, he said “James, you can’t keep walking up the worksite. The safety notice doesn’t allow for you to go there.”

303    According to Inkster, Simpson responded, “No, I’m going to keep going [and] I want to continue and check the bollards up there” (apparently referring to an area beyond the limits of the Gate 3 Site). He walked passed Inkster and kept progressing along the crash barriers. Inkster told the court that he again “chased” Simpson, walked around him and said, “You’ve got to keep – you can’t keep walking up the worksite. You’ve got to stop. You’re not following a direction.”

304    Inkster told the court that Simpson, apparently undeterred, walked around him again and continued to progress along the crash barriers. Inkster then went around him a third time and said, again, “James, you’ve got to stop.” His evidence continued:

At that point in time, James pushed past me with his arm. I stumbled and fell into, like, a pile of dirt, if you will.

305    Under cross-examination, Inkster said that, in response to Simpson’s attempt to venture beyond the limits of the Gate 3 Site, he said to Simpson, “James, your safety notice relates specifically to gate 3. You can’t just wander off through the work site. Okay? We’ve checked gate 3. There’s no issues. Get back in the car.” He told the court that, at the point that Simpson made contact with him, Langley was approximately 10, perhaps 20, metres away. It was put to him that Langley was in his vehicle at the time, which Inkster denied.

306    Inkster accepted that he did not make any mention of Simpson’s having physically pushed him at the Gate 3 Site in any documents that he subsequently prepared in relation to Simpson’s visit to the Project on 9 May 2017. There were four such documents. The first was a file note in which he recorded the events of that day. The second and third were emails that were sent that afternoon to various Fulton Hogan management representatives. The fourth was an internal Fulton Hogan record entitled “Right of Entry Checklist”. I will return to those documents momentarily.

8.1.2 Langley’s evidence

307    Langley’s evidence about what transpired at the Gate 3 Site was largely (though not entirely) consistent with Inkster’s. He told the court that, after he came to (or approached) the city-side boundary of the Gate 3 Site, Simpson attempted to continue towards the city. At that point, “Matt [Inkster] tried to stop him from going up there by standing in his way, saying ‘You’ve finished in gate 3’”. According to Langley, Simpson told Inkster that he wished to continue measuring the exclusion zones further along the crash barriers. Langley’s evidence was that “[Simpson] pushed [Inkster] aside, got past him, Matt got back in front again and this happened on two more occasions. And then I actually said to Matt, ‘Let him go. Hop in the car. We’ll follow him. We can’t leave him walk up the job on his own. He’s still our responsibility.’” He and Inkster then followed Simpson in their vehicle as he (Simpson) proceeded to check the depth of the exclusion zones further along the crash barriers.

308    At the point that Inkster made his three attempts to stop Simpson from venturing beyond the limits of the Gate 3 Site, Langley was (according to him) standing a couple of metres behind them.

309    Under cross-examination, Langley told the court that Simpson pushed Inkster “…on at least three occasions”. He declined repeated invitations to resile from that evidence.

8.1.3 Simpson’s evidence

310    Simpson’s account of what occurred at the Gate 3 Site was somewhat different. He told the court that, upon arriving at that site, he proceeded to check the exclusion zones adjacent to the crash barriers that were there in place. Invited by counsel to do so, he impressed upon the court that many of the bollards by which those zones had been established were placed too close to the crash barriers, prompting him to relocate them as he progressed along the corridor. Inkster and Langley refuted that evidence but nothing turns on that (overall, somewhat gratuitous) evidential conflict.

311    Simpson recalled a point at which Inkster “…came over and said, ‘See, mate, you’re now leaving gate 3.’”. His evidence continued:

What did you say?---I don’t believe I’m leaving gate 3, you know. And then he goes, no, you’re leaving. I said, all right. Well, I’ll roll one out for gate 4. No, that’s not gate 4. Well, I tried to roll one out for gate 2. If it’s not gate 2 or gate 4 – because I’m thinking that the – the gates are numerological. Is that the right word? Sorry. Then it must still be gate 3. I’m – I’m going to continue. At that point, Mr Inkster got in front of me and goes, “No, you can’t continue. You’re – you’re leaving gate 3.” I said no, and I’ve walked around him. He has then done it again. I walked around him again. The third time, Mr Inkster has actually grabbed my book and said, “See, mate, we’re not going anything further. You’re leaving gate 3.” I said, “Really?” Got out me phone to film him – at that point, he’s given me his book back, and I’ve walked around him and continued.

Okay. And at any point, did either of you touch the other one?---No.

Do you have a recollection of where Mr Langley was at this point?---Mr Langley was still in the car.

And how far away was the car from where you and Mr Inkster were?---If I was down here, Matthew was in front of me. Gordon was in the car. He would have easily been 20 metres away.

Simpson’s reference to “roll[ing] one out” was a reference to his preparing a notice under s 88 of the OHS Act.

312    Under cross-examination, Simpson denied that he had physically pushed Inkster. He maintained that, on the third occasion on which Inkster indicated to him that he should not proceed further along the crash barriers, he (Inkster) “…grabbed my book and [said], words to the effect, ‘That’s enough. No more.’”. His evidence continued:

I’ve grabbed out my phone and filmed him, because I felt threatened. I said, “No, you’re not taking my book”, you know, words to the effect. And he passed my book back and I walked around him and continued.

8.1.4 Resolution of the evidential conflict

313    I prefer the evidence of the Commissioner’s witnesses over Simpson’s. I am satisfied, on the balance of probabilities—informed by the nature of the present proceeding and the gravity of what is alleged—that Simpson physically pushed Inkster whilst present at (or near) the Gate 3 Site. I accept that contact was made and that it was more than incidental or unintended.

314    I do not accept that Simpson pushed Inkster three times, as Langley claimed. Inkster did not give that evidence and Simpson, plainly, denied that he had pushed Inkster at all. Despite the respondents’ invitation, I do not attribute Langley’s account to any tendency on his part to exaggerate his evidence or any reluctance to make reasonable concessions. I did not observe that he had any such tendency or reluctance. The variance in his evidence (as compared with Inkster’s) is likely explained by the fact that he was some distance away from Inkster and Simpson at the relevant times, and that Simpson was faced away from him. It is not difficult to understand how Simpson’s efforts to proceed past Inkster despite Inkster’s attempts to stop him might have appeared, from Langley’s vantage point, to involve physical contact.

315    I accept Langley’s evidence that he was standing a couple of metres behind Inkster and Simpson, at least at the point that Inkster made his attempts to stop Simpson from progressing along the crash barriers. Simpson’s evidence was that Langley was in his vehicle at the time but, given that Langley was not in front of him, I prefer the evidence of Inkster and Langley, both of whom said that he (Langley) was on foot. Inkster’s evidence was that Langley was “10, 20 metres” away when Simpson made contact with him. That is consistent with Inkster having walked around Simpson—away from Langley—in an effort to stop him (Simpson) from progressing.

316    The respondents made much of the fact that Inkster did not record that Simpson had physically pushed him in any of the four documents that he subsequently prepared in relation to the events of 9 May 2017. It was suggested that, had events transpired in the manner about which he gave evidence, he would surely have made a point of recording as much in those documents. That submission is not without force but I am not persuaded that it should warrant my rejection of Inkster and Langley’s evidence.

317    The two emails contained nothing more than a summary statement of “the Union” having visited “the Site” and Inkster’s intention to discuss what occurred with the Commissioner’s staff (in the context of a meeting that appears to have been scheduled or at least in contemplation). The file note did not squarely record that Simpson had physically pushed Inkster; but Inkster did record that Simpson “pushed past [him]”. The “Right of Entry Checklist” document, as its name suggests, recorded a series of yes/no questions concerning the statutory requirements that Simpson exercised or sought to exercise. The final section of that document contained a space for some notes, which Inkster used to record the following (errors original):

CFMEU James Simpson attended site to inspect barriers. Whilst at site James Simpson refused to follow direction or follow site safety protocols. Worksafe were contacted. Matt Inkster refused to accept further safety notices from James. ABCC were notified.

318    Plainly, Inkster did not record in the checklist the physical interaction about which he gave evidence (and around which this aspect of the present matter revolves). I am not persuaded that much hangs on that. The checklist is, on its face, a document that is designed to assist Fulton Hogan managers in understanding when it is that permit holders are entitled to enter premises. Each of the questions that it poses touches upon a condition that a permit holder must satisfy in order validly to exercise a right in accordance with pt 3-4 of the FW Act. The document is split into sections, each pertaining to the different species of rights recognised under the FW Act. The section of relevance presently is headed, “Part 4: Entry to Investigate a Suspected Safety Contravention (Excluding WA)”. It poses a series of questions, namely: “Has the union official produced a Federal Right of Entry Permit…[?]”, “Has the union official produced a…WorkSafe notice of Suspected Contravention…[?]”, “Has the union official complied with reasonable security and safety requirements that apply within the workplace…[?]” and “Does the relevant union have the right to represent workers on site…[?]”. The document is directed toward whether rights of entry exist, rather than the conduct in which a permit holder engages when exercising or seeking to exercise one. Inkster’s comments at the conclusion of the document are in that same vein. His failure to record within them the physical contact that is presently in focus is thus explicable. That failure does not warrant the rejection of his evidence.

319    Simpson’s evidence, on the other hand, gave pause for at least some concern. Under cross-examination, his evidence was that Inkster, when attempting for a third time to stop him from progressing beyond the boundary of the Gate 3 Site, grabbed a book that he was carrying at the time. In response, Simpson claimed to have taken out his phone and filmed Inkster, apparently “…because [he] felt threatened”. The suggestion that Inkster grabbed Simpson’s book, or that Simpson took out his phone and began filming was not put to Inkster or Langley. The notion that Simpson had felt “threatened” sits most uneasily with the impression that I formed of him from his time in the witness box. Simpson presented as a person of conviction and self-belief; a man possessed of a keen sense of the rights conferred upon him by the enactments presently within contemplation and an even keener determination to ensure that he should exercise them so as to ensure that work at the Project occurred safely. Although, substantively, it doesn’t matter if he was, I do not accept that Simpson felt threatened. That aspect of his evidence was embellished.

320    There are other bases for rejecting other parts of his evidence. Simpson told the court not only that he did not physically push Inkster but also that Inkster did not fall. It might well be that Simpson did not see Inkster fall, perhaps because he continued beyond Inkster’s position and/or maintained his focus upon progressing along the crash barriers that he was there to inspect. Regardless, I reject that evidence. I accept, as Inkster testified, that Inkster was physically pushed and that he fell as a result.

321    The respondents also pointed to Inkster’s concession that he did not contact the police in response to Simpson’s having pushed him. Respectfully, almost nothing can be made of that. Although no attempt was made to explore with Inkster why it was that he did not contact the police, it is not difficult to conceive of reasons why he might have opted not to—particularly in light of the experience that he had had with them only days earlier at the Eumemmering Creek Site. His failure to prosecute a complaint against Simpson is of no moment.

8.2 Conclusion

322    None of the other elements that the Commissioner must prove in order to make out the case that he advances against Simpson is in dispute. Satisfied, as I am, that Simpson physically pushed Inkster as Inkster alleged, it follows that his (Simpson’s) conduct was engaged in in contravention of s 500 of the FW Act.

Part 9: The liability of the Union

323    As is outlined above, the Commissioner asserts and the respondents accept that the Union should be found to have been involved in (within the meaning attributed to those words by s 550(2) of the FW Act) the statutory contraventions that Simpson committed; and, thereby, to have itself committed those same contraventions.

324    That accessorial liability is said to have arisen by dint of the fictions to which s 793 of the FW Act (above, [52]) gives effect. For present purposes, the Union is taken to have engaged in the same conduct as that in which Simpson engaged; and to have done so with the same states of mind as those that Simpson possessed when he engaged in it. As it is not a “permit holder” for the purposes of pt 3-4 of the FW Act, the Union could not itself have directly contravened either of ss 499 or 500 of the FW Act: Australian Building and Construction Commissioner v Harris [2017] FCA 733, [37]-[51] (Siopis J). In order that it might have done so as an accessory, it must be understood to have done something—that is, to have engaged in some act or omission—by which it can be thought to have associated itself with Simpson’s contravening conduct: Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299, 308 [26] (Tamberlin, Gyles and Gilmour JJ).

325    As I did during oral submissions, I confess some doubt that that process of association might occur merely through the application of s 793(1) of the FW Act. Equally—and assuming that, in each case, the Union might be thought to have engaged in conduct sufficient to implicate it in Simpson’s conduct—questions abound as to how the Union might be thought to have possessed knowledge of the essential elements of the contraventions that have been established as against Simpson. In saying so, I should acknowledge that there is persuasive authority that holds (in each sense) that it might: Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393, 418 [121] (Charlesworth J). Although, at the time of the trial, there was no binding appellate authority on the point, there now is: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203, [36]-[53] (Reeves and O’Callaghan JJ, with whom Charlesworth J agreed).

326    In the absence of argument on the point (see above, section 3.5), I needn’t indulge the curiosities referred to above; and, indeed, am bound in any event by the full court’s recent observations. I accept that, having engaged in the same conduct as that in which Simpson engaged—and having done so with the same states of mind as he possessed at the times that he engaged in it—the Union was involved in (and, thereby, is taken to have itself also committed) the contraventions of ss 499 and 500 that Simpson committed. By way of summary, then, the Union:

(1)    contravened s 499 of the FW Act by means of its involvement in Simpson’s contravention of that section at the Eumemmering Creek Site in the evening and early morning of Saturday, 29 and Sunday, 30 April 2017;

(2)    contravened s 500 of the FW Act by means of its involvement in Simpson’s contravention of that section at the Eumemmering Creek Site in the evening and early morning of Saturday, 29 and Sunday, 30 April 2017; and

(3)    contravened s 500 of the FW Act by means of its involvement in Simpson’s contravention of that section at the Gate 3 Site on 9 May 2017.

Part 10: Next steps

327    The matter should be dismissed insofar as concerns Clark. In light of s 570 of the FW Act, it seems unlikely that the court will be troubled by an application on his part for costs; but, if that is wrong, he shall be at liberty to make an application in that regard in the usual way.

328    The court’s having accepted that some of the contraventions that the Commissioner alleges against the other respondents were committed, the matter must proceed to further hearing on the question of what relief should be granted in light of those findings.

329    I will make orders reflecting that course.

Associate:

Dated:    2 December 2020