Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) [2021] FCA 920

ORDERS

THE COURT ORDERS THAT:

1.    Within 14 days of these orders, the parties agree on the appropriate form of declaratory relief to reflect these reasons.

2.    The matter be listed for further case management at 9.30 am on 6 September 2021.

3.    Liberty be granted to apply on three (3) days’ notice.

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

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    This case is concerned with the conduct of union officials over two days at a Kiama building site under the control of Richard Crookes Constructions Pty Ltd. The Australian Building and Construction Commissioner alleges that by reason of that conduct those officials and the union itself — the Construction, Forestry, Maritime, Mining and Energy Union (the Union) — contravened both the Fair Work Act 2009 (Cth) (FW Act) and the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act).

2    The Commissioner’s case, in short, is this.

3    On 27 November 2018 the union officials — Gerasimos (known as Maki) Danalis, Anthony Dimitriou and Anthony Burke — attended the site purportedly due to concerns about access and egress on the site. While there, all three interfered with a concrete pour scheduled for completion that day. In so doing, they intentionally obstructed various people, hindered others, and/or otherwise acted in an improper manner in contravention of s 500 of the FW Act. Alternatively, Dimitriou and Burke were accessories to contraventions committed by Danalis. Further, by threatening to stop the concrete pour and obstructing the concrete trucks Danalis organised or engaged in an unlawful picket at the site and Dimitriou and Burke engaged in that “picket” in contravention of s 47 of the BCIIP Act.

4    Danalis informed two of the concrete truck drivers and representatives of the local council that the site was unsafe and would be shut down for safety reasons, with the intention of giving the impression that the union officials were authorised to take the action or reckless as to whether the impression was given, when they were not so authorised, in contravention of s 503 of the FW Act.

5    The following day Danalis and Dimitriou returned to the site unexpectedly and complained that people were working in the rain. They were required to undergo a visitors’ induction before embarking on an inspection but refused and entered the site unaccompanied in breach of their entry permits. They approached some workers and told them to “pack up” and leave the site. In so doing, they contravened s 500 of the FW Act by preventing Crookes and its employees from performing work scheduled to take place that day or otherwise acting in an improper manner.

6    On both days the union officials failed to produce their entry permits for inspection when asked, in contravention of s 497 of the FW Act.

7    The Union was liable for the officials’ conduct, pursuant to ss 550 and 793 of the FW Act or s 94 of the BCIIP Act as the case may be.

8    The facts relevant to the various alleged contraventions often overlap. This means that some degree of repetition is unavoidable.

The witnesses

9    Nine witnesses gave evidence for the Commissioner.

10    The first was Colm Thomas. He was followed by Kain Sissons, Daniel McGrath, Shannon Murray, Brian Evans, John Patton, Tomas Rees, Kerry McMurray, and Shane Martin. All but Mr Patton gave signed statements to the Commissioner within a month or so of the events in question. Save in Mr McGrath’s case, these statements were annexed to their affidavits. All the deponents were cross-examined.

11    I had the impression that all of the Commissioner’s witnesses, except for Thomas, were doing their best to assist the Court. But there were differences in their recollections.

12    Colm Thomas was contracted by Crookes as a site manager. He was acquainted with Dimitriou and Danalis as they had previously been to the site exercising their rights of entry. He was present at the site on both 27 and 28 November 2018 and had a number of interactions with the union officials. The nature and content of those interactions was contentious. Under cross-examination Thomas was evasive at times, particularly when questioned on safety issues at the site, and at times querulous.

13    Tomas Rees was employed by Crookes as a project manager for the site. He was a witness to the events of 27 November 2018.

14    Shane Martin was employed as a safety coordinator/advisor for Crookes. He was present at the site on both 27 and 28 November 2018.

15    By the time of the trial neither Rees nor Martin was employed by Crookes.

16    Kain Sissons was employed by Crookes as a project engineer at the site. He was a witness to some of the events on 27 November 2018 and gave evidence about the impact of stopping the concrete pour.

17    Shannon Murray was a traffic controller contracted by Crookes to work at the site. On both 27 and 28 November 2018, he was acting under Thomas’s direction.

18    Brian Evans and Daniel McGrath were concrete truck drivers employed by Boral Concrete who had driven their trucks to the site on 27 November 2018 but were unable to enter.

19    John Patton was an Assistant State Inspector with Safework NSW. On 28 November 2018, he attended the site at the request of Thomas to assess building access. He had also inspected the site about three weeks earlier.

20    Kerry McMurray was the General Manager of Kiama Municipal Council. He was in attendance at the site on 27 November 2018 for a weekly construction meeting and was a witness to some of the events that day.

21    At the time of the hearing Danalis was an industrial officer for the Health Services Union but in November 2018 he was employed by the Union as an organiser. When he worked for the Union, he was based in the Illawarra area, working out of the Wollongong office, including during November 2018. In his capacity as an organiser, he had attended the site on about 20 occasions before 27 November 2018. He had attended at least twice before Crookes began work there because of safety issues to do with asbestos on the site. His other visits occurred after Crookes had taken over. On many of these visits he was accompanied by Dimitriou, but at times he had attended on his own.

22    Danalis presented as an intelligent witness, who made reasonable concessions. Although I was urged to find that his presentation was, in effect, a charade, I did not come to that conclusion.

23    Dimitriou was an organiser employed by the Union, having started there in April 2018, and a carpenter and joiner by trade. He was generally based in the Illawarra and South Coast area, working out of the Wollongong office, including in November 2018 when Danalis was working there. He had been to the site at least a dozen times before November 2018, sometimes on his own, and sometimes with Danalis.

24    I found Dimitriou to be a generally honest witness. At times it appeared as if he did not fully grasp or understand the questioning. His recollection was patchy. The Commissioner suggested, in effect, that his memory was selective. There are a number of possible reasons why a witness has a better memory of some things than others. I was not persuaded that in his case the reason was a sinister one. My impression was that the problems with his recollection were a reflection of the subordinate and relatively minor role he played in the events in question.

25    Burke was also an organiser, employed by the Union since September 2017. He was based in the Union’s Pyrmont office, but occasionally visited regional areas to work with colleagues who were based there. In cross-examination, he explained that his role was to “look after the safety” on job sites in the areas allocated to him.

26    Burke was a most unsatisfactory witness. He displayed a smug and cavalier attitude during cross-examination. At times, he was argumentative and acted in a contemptuous manner towards the Commissioner’s counsel.

27    While there was a good deal of common ground, there were also significant differences between the parties’ witnesses about critical events. But there were also differences in the accounts given by the witnesses on each side of the controversy. Since the onus of proof lay with the Commissioner, the differences in the accounts of his witnesses was the focus of particular attention. As Mr Latham, counsel for the union officials, put it in his closing submissions, there were differences between the affidavit evidence and the oral testimony of a number of the Commissioner’s witnesses; differences between the evidence of the Commissioner’s witnesses and his pleadings; and differences between the accounts given by several of those witnesses. Some of the differences were of little moment. Others, however, were significant.

Background facts

28    Unless otherwise indicated, the following findings are derived from the admissions in the pleadings, the statement of agreed facts, and the undisputed evidence.

The parties

29    The Commissioner is a statutory appointee of the Commonwealth, appointed by the Minister for Employment pursuant to s 21 of the BCIIP Act, and an Australian Building and Construction Inspector by force of s 66(3) of that Act, authorised to institute this proceeding by s 111 of the BCIIP Act and s 539, item 25 of the FW Act.

30    The Union is and was at all material times an organisation of employees registered under s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) (Registered Organisations Act), a “constitutionally-covered entity” and a “building association”, and therefore a “building industry participant”, within the meaning of s 5 of the BCIIP Act. It was also a “relevant union” within the meaning of s 116 of the Work Health and Safety Act 2011 (NSW) (WHS Act).

31    At all relevant times each of the union officials was an officer of the Union within the meaning of s 12 of the FW Act and, as the holder of an entry permit issued by the Fair Work Commission (FWC) under s 512 of the Act, a “permit holder” within the meaning of s 12. Each of the union officials was also the holder of a “WHS entry permit” within the meaning of s 4 of the WHS Act and therefore a “WHS entry permit holder” within the meaning of Pt 7 of the WHS Act. All of them were employees and members of the Union. Danalis and Burke were also union organisers.

The project and the site

32    The events the subject of the alleged contraventions occurred at 14a Boniara Street, Kiama, New South Wales, where a building complex was being constructed on behalf of the Kiama Municipal Council to house the Kiama Aged Care Centre of Excellence (the site). The site constituted “premises” for the purposes of Pt 3-4 of the FW Act, a “workplace” for the purposes of the WHS Act, and a “building site” within the meaning of s 5 of the BCIIP Act. The construction of the building complex (the project) was “building work” for the purposes of s 6 of the BCIIP Act.

33    Crookes was the principal contractor for the project and the occupier of the site for the purposes of Pt 3-4 of the FW Act. It engaged sub-contractors to perform work in connection with the construction of the project. It was a “constitutionally-covered entity”, a “building employer”, and a “building industry participant” within the meaning of s 5 of the BCIIP Act.

34    Patton inspected the site on 7 November 2018. He found no want of compliance with the requirements for safe access to, or egress from, building 8A. In his statement, which was annexed to his affidavit, Thomas said that “[n]o significant issues” were brought to Crookes’ attention as a result of this inspection. In cross-examination, however, he conceded that the contrary was true. At the same time, he denied that he had tried in his affidavit to downplay the significance of the safety issues, testifying that they had been rectified on the day of the inspection.

The events of 27 November 2018

35    The union officials arrived at the site mid-morning. They met Thomas at the site office. Either Danalis or Burke, but probably Danalis, informed Thomas that they wanted to do a safety walk as they had an issue with access and egress. Thomas knew Danalis and Dimitriou because they had been to the site previously exercising their rights of entry. But he did not know Burke. When he asked who Burke was, he was told that he was Anthony Burke of the Sydney office of the Union. At this point Thomas asked to see the permits of all three officials. There is a dispute about whether or not the permits were produced.

36    Danalis, Dimitriou and Burke signed the site attendance and emergency roll.

37    Thomas then arranged for the members of the site health and safety committee to gather for a safety walk.

38    Thomas, Rees, Martin and members of the health and safety committee escorted the union officials on a walk to inspect their areas of concern. The group made their way to level 1 of building 8A where workers were carrying out a pour of a concrete slab scheduled for completion that day. When they arrived there Burke raised three issues with the Crookes representatives: lack of two points of access and egress, inadequate signage, and the fact that some workers were not wearing safety glasses. The Crookes representatives accepted that some of the workers were not wearing their safety glasses but otherwise disagreed with Burke. Burke and Danalis also complained that people were working under the boom of the concrete pump. The Crookes representatives disagreed.

39    Burke told Rees that the workers should be taken off the deck and re-inducted. Rees and/or Thomas agreed to distribute safety glasses to the workers not wearing them and directed that the workers be re-inducted on the deck.

40    Sometime after 11.00 am, Danalis and Dimitriou walked down the stairs from level 1 and over to a concrete hopper and pump near the site office. Burke and members of the safety committee remained on the deck while the re-induction was conducted.

41    Danalis placed himself between the concrete hopper at the end of the pump and the concrete truck (the First Truck) to which it was attached.

42    Danalis said to Rees words to the following effect:

We have an issue with the concrete pump. The front left outrigger looks like it is sinking into the ground.

43    Rees told Danalis that Crookes had a geotechnical report in relation to the site of the concrete pump (the geotech report). At some point that day Rees gave some pages of the report to Danalis and Burke.

44    Rees gestured over to another concrete truck (the Second Truck) that was waiting at the gate. This was the truck driven by Evans. Danalis gestured with his right hand for the truck to stop. Evans was prevented from entering the site.

45    At no stage that day did the Second Truck or any more trucks, including the truck driven by McGrath (the Third Truck), enter the site.

46    At one stage during the conversations between Rees and Danalis, Danalis said words to the effect:

Why don’t you go and eat another hamburger fat boy?

47    At some stage during the conversations between Rees and Danalis, Rees requested Danalis to issue a relevant health and safety notice.

48    Sometime between 11.00 am and 11.30 am, a person added a wooden chock beneath the forward left hand outrigger foot of the concrete pump.

49    By 12 noon, the concrete pump hopper on the First Truck was shut and the pour was stopped.

50    At 12 noon, a set of stairs was moved by a Manitou machine from the rear of the site and at 12.30 pm or thereabouts the staircase was installed to provide secondary access to the deck.

51    By this time, the concrete pump had left the site.

52    The union officials left the site as the stairs were being installed and drove off for coffee. At a cafe they completed a Work, Health and Safety notice (WHS notice). At around 1.45 pm they returned to the site and gave one of the managers a copy of the WHS notice. They then left the site again.

53    The WHS notice was in the prescribed form and appears to have been signed by Danalis and Burke. It records that the officials entered the workplace under s 117 of the WHS Act and that they reasonably suspected that a contravention of the Act had occurred, or was occurring, at the site. They indicated by crosses placed inside boxes beside the following entries that the particulars of the suspected contraventions were:

    Access/Egress;

    Amenities/Water;

    Site security & Signage; and

    WHS duties.

54    Underneath, in handwriting, the following particulars were given:

No signage, no mud maps, no emergency access/egress, workers working under boom, no PPE –not working to SWMS [Safe Work Method Statement], front left leg of pump sinking in soft soil, other issues with pour.

55    As a result of the stoppage of the concrete pour, Crookes had to install a cold joint in the slab. Preparatory work was carried out between 12.30 and 1.45 pm. That included the installation of extra steel reinforcement.

The events of 28 November 2018

56    At about 7.35 am Patton attended the site at Thomas’s request to assess building access. Thomas showed him the WHS notice issued by the Union. Patton conducted an inspection of the scaffold and stretcher stair access to buildings 8A, 8B and 8C and decided access to all buildings was “good”, observing that each level had additional access between each building. He noticed a cold joint in the middle of the first floor slab level on building 8A indicating that the concrete pour had not been completed and a new joint had been created. After reviewing with Thomas s 19 of the WHS Act, cl 40 of the Work Health and Safety Regulation 2017 (NSW), and the Code of Practice on Managing the Work Environment and Facilities, Patton determined that the site access satisfied the relevant requirements.

57    Before entering the project site, each of Danalis and Dimitriou reasonably suspected that one or more contraventions of the WHS Act had occurred or were occurring. Each of them entered the site in exercise of, or seeking to exercise, his “State or Territory OHS right”, within the meaning of within the meaning of s 494(2) of the FW Act.

58    After he first encountered them on the site, Thomas asked Danalis and Dimitriou to produce their entry permits for inspection. Danalis and Dimitriou entered the site office and signed the site attendance and emergency roll. After Thomas had a conversation with Danalis, the pair left the site office.

59    At some stage Thomas caused all the gates to the site to be locked while Danalis and Dimitriou were still inside the site.

60    The union officials then gave Thomas another notice under s 117 of the WHS Act. The particulars of the suspected contraventions to which the notice was said to relate were identified as:

    Access/Egress;

    Electrical;

    General/Site/Task Induction; and

    WHS duties.

61    Additional particulars were:

Slips, trips, falls, water through leads on the ground; electrical cords [scil.] in puddles, [indecipherable] uncapped, men unloading trucks in rain without handrails, no safe access/egress.

Proof

62    The burden of proving each element of the pleaded contraventions rests with the Commissioner. As this is a civil proceeding, the civil standard of proof on the balance of probabilities applies. That requires that the allegations be proved to the “reasonable satisfaction” of the Court: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J). The seriousness of an allegation, the inherent unlikelihood of a particular occurrence, and the gravity of the consequences which can flow from a finding will all affect the answer to the question of whether an allegation has been proved: Briginshaw at 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450; 67 ALJR 170 at 171. The Court is required to take into account these matters and the nature of the cause of action in deciding whether the burden of proof has been discharged: Evidence Act 1995 (Cth), s 140.

63    This is a civil suit for the recovery of pecuniary penalties. A proceeding of this kind is penal in nature: Naismith v McGovern (1953) 90 CLR 336 at 341 (Williams, Webb, Kitto and Taylor JJ). As Branson J observed in Employment Advocate v Williamson (2001) 111 FCR 20 at [67] in relation to contraventions of the Workplace Relations Act 1996 (Cth) (WR Act) (Kenny J agreeing at [108]):

[I]t is not regarded as proper, nor is it common, in Australian society for people to engage in conduct proscribed by an Act of Parliament. An allegation that someone has done so is ordinarily a grave allegation particularly where, if made out, the allegation could lead to the imposition of a significant penalty. For this reason, the strength of the evidence required to establish that an individual had, in his or her capacity as an officer or member of an industrial association, engaged in conduct of the kind proscribed … would be greater than the strength of evidence that would be required, whether in the same or in a different proceeding, to establish that a person had engaged in conduct of a kind that is not legally proscribed and that is engaged in regularly by people of good standing in the community.

64    In a case of this nature, “reasonable satisfaction” should not be reached through “inexact proof, indefinite testimony, or indirect inferences”: Briginshaw at 362.

The alleged contraventions of section 497 of the FW ACT

The law

65    Section 497 of the FW Act provides that:

A permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer.

66    “Permit holder” is defined in s 12 of the Act to mean a person who holds an entry permit. An “entry permit” is a permit issued by the FWC, on application by an organisation, to an official of an organisation upon the FWC being satisfied that the official is a fit and proper person to hold the permit: FW Act, s 512.

67     “State or Territory OHS right” is defined in s 494(2) as a right to enter premises (or a right to inspect or otherwise access an employee record of an employee who is on premises) if the right is conferred by a State or Territory law and, relevantly, the premises are occupied by a constitutional corporation (see s 494(2)(a)(i)). A “State or Territory OHS law” is defined in s 494(3) to mean a law of a State or Territory prescribed by the Regulations. The WHS Act (together with its counterparts in other States and Territories) is a prescribed State or Territory OHS Law for s 494(3): Fair Work Regulations 2009 (Cth), reg 3.25. An official of an organisation must not exercise a “State or Territory OHS right” unless the official is a permit holder: FW Act, s 494(1).

68    The WHS Act confers an entitlement on a WHS entry permit holder to enter a workplace for the purpose of inquiring into a suspected contravention of the WHS Act that relates to, or affects, a worker who is, or is eligible to be, a member of the union represented by a WHS entry permit holder. Before entering the workplace, the WHS permit holder must “reasonably suspect that the contravention has occurred or is occurring”: WHS Act, s 117 read with s 116. And a WHS permit holder is prohibited from entering a workplace unless he or she also holds an entry permit under the FW Act or the Industrial Relations Act 1996 (NSW): WHS Act, s 124.

69    The rights that may be exercised at the workplace are set out in Divisions 2 and 3 of Pt 7 of the WHS Act.

70    As Tracey J observed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080 at [45], entry by a permit holder under s 117 is conditioned upon notice requirements (s 119), the permit holder also holding an entry permit under the FW Act (s 124(a)), and compliance with limits on the timing (usual working hours at the workplace) (s 126) and place of exercise of the right (the area of the workplace where the relevant workers work or any other work area that directly affects the health or safety of those workers) (s 127).

71    Section 118 relevantly provides:

(1)    While at the workplace under [Division 2], the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act—

(a)    inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention,

(b)    consult with the relevant workers in relation to the suspected contravention,

(c)    consult with the relevant person conducting a business or undertaking about the suspected contravention[.]

72    Section 119 requires the permit holder, as soon as reasonably practicable after entering a workplace, to give notice of the entry and suspected contravention to both the person conducting the business or undertaking and the person with management or control of the workplace unless it would defeat the purpose of the entry or, in an urgent case, unreasonably delay the permit holder.

73    Section 125 of the WHS Act requires a WHS entry permit holder at all times while present at a workplace under a right of entry under Division 2 or 3 of Part 7 of the Act to have his or her WHS entry permit and photographic identification available for inspection by any person on request.

74    Section 128 prohibits a WHS entry permit holder from exercising a right of entry to a workplace under Division 2 or 3 of Part 7 unless he or she complies with any reasonable request by the person conducting the business or undertaking or the person with management or control of the workplace to comply with any work health and safety requirement that applies to the workplace and any other legislated requirement applying to the type of workplace.

The allegations

75    The Commissioner alleged that on 27 November 2018 Crookes, through Thomas, requested each of the officials to produce his entry permit for inspection and each of them failed to do so. He also alleged that on 28 November 2018 Crookes, again through Thomas, made the same request of Danalis and Dimitriou and, once again, neither of them acceded to his request.

The issues

76    To establish the contravention of s 497 by each of the officials, it was necessary for the Commissioner to prove that:

(1)    he was a permit holder;

(2)    he was exercising a right of entry under the WHS Act;

(3)    Thomas, as a representative of Crookes, asked him to produce his entry permit for inspection; and

(4)    he failed to comply with the request by producing his permit.

77    None of the first three elements was in dispute. Each was admitted in the defences and was the subject of an agreed fact. Putting the liability of the Union to one side for the moment, the only factual issue was whether any or all of the officials failed to comply with the request made of him on either or both days.

Did the union officials contravene s 497 by failing to produce their entry permits for inspection?

78    Each of Burke and Danalis deposed to having shown Thomas their permits when requested to do so on 27 November 2018. In his affidavit Dimitriou said:

I had showed him my entry permit previously when he had asked, and although I do not now remember showing him my permit on 27 November 2018, it was my practice to do so whenever he asked.

79    In cross-examination they adhered to their evidence in chief. Danalis testified that he and Dimitriou showed their permits after Burke showed his. Burke agreed that he had said to Thomas: “Are we going to play that game, are we?” At the same time he insisted that he showed Thomas his permits. The two are not inconsistent. Dimitriou maintained that he did not remember whether Thomas had asked him that time but, had he asked, he would have shown him. The Commissioner submitted that Dimitriou’s answer was inconsistent with the agreed fact that Thomas asked to see the officials’ permits and his amended defence in which he admitted as much. But Dimitriou was not cross-examined on the supposed inconsistency. In the circumstances, I would infer that the admission was made either on the basis of what he had been told and accepted or on legal advice. If there is an inconsistency, it does not damage his credit. If anything, it reflects well upon it.

80    The Commissioner’s case rests almost entirely on Thomas’s evidence. I say almost because the Commissioner also relied on the fact that Burke did not mention in his affidavit that Danalis and Burke had shown their permits to Thomas.

81    In the statement he made to the Commissioner on 21 December 2018, which was annexed to his affidavit, Thomas said this about his request to the union officials on 27 November 2018 (without alteration):

7.    At approximately 10:45-10:50 am three CFMEU officials Gerasiomos ‘Maki’ Danalis (Maki), Anthony Dimitriou (Anthony) and Anthony Bourke (Bourke) arrived on the KACCOE project site. I have previously met Maki and Anthony Dimitriou as they have been to this site previously exercising a right of entry. Although I had not met him previously, I now know the third official as Anthony Bourke.

8.    The three union officials came into the site compound, marked on the map. I was sitting at my desk in view of the office door. After I finished typing on my computer, I rose and addressed the officials.

I said: “What’s the issue?”

Burke said: “We have an issue with access and egress.”

I said to the group of officials: “Who is this man?” I was referring to Burke.

Burke replied: “I am Anthony.”

I said to the group: “Can I see your permits?”

Burke said to me: “If I show my permit, I’ll have to act on it”.

I said: “I’m happy to do it”.

…

9.    Maki and Dimitriou did not provide their permits. Burke however, did show a piece of paper but said “Are we playing that game?” He said this as he held what appeared to be a permit, but I was not permitted to inspect it.

82    It is true, as the Commissioner submitted, that Thomas was unshaken on this question in cross-examination. He purported to have a clear recollection of the matters set out in para 9 of his statement.

83    Yet Thomas’s evidence was not only contradicted by the three officials but it was also contradicted by evidence from the Commissioner’s own witnesses.

84    In Rees’s statement, signed on 3 January 2019, which was annexed to his affidavit, he recorded that Thomas told him at about 10.45 am on the day in question that he had checked the permits. His account of the events that day begins:

About 10.45 am, I was working in the site office getting ready for client meetings when Colm Thomas came and spoke to me.

Thomas said: “The union’s onsite, I checked their permits can you come for a walk with us. They want to do a site inspection as they have an issue with access, egress and concrete pour.”

(Emphasis added.)

85    Under cross-examination Martin confirmed without equivocation that Thomas had told Rees during that conversation that he had checked the permits. He testified that he remembered Thomas saying that.

86    I accept, of course, that memory is fallible. But there is no apparent reason why Rees or Martin would recall Thomas saying he had checked the official’s permits if it were not true. The Commissioner submitted that Martin and Rees were mistaken. However common sense and the weight of the evidence indicate that this is unlikely.

87    Further, contemporaneous documentary evidence tended to confirm their recollections.

88    In the Right of Entry Report, which he completed and signed later that day, Thomas recorded the permit numbers of all three union officials. The Report made no mention of any failure to produce permits.

89    Under cross-examination Thomas claimed that there was insufficient room on the form to record the information and said that he had obtained the numbers from the website of the FWC. But Thomas accepted that the failure to produce a permit was a serious matter. If the officials had failed to produce their permits, one might reasonably expect that in the column entitled “Federal Permit No.” Thomas would have written “not produced”.

90    Thomas did testify that he had recorded the non-production of the permits in an attachment to his statement (CT-12), which he described as “compiled notes written on the days in question”. But the reference upon which he relied is equivocal. It reads (without alteration):

I requested inspection of their entry permits

Maki & Anthony did not show there, Anthony Burke Showed his & stated if he shows it he has to Action it “Are we playing that game”.

91    At the very least, this note does not support the allegation that Burke did not show his permit.

92    In all the circumstances I am not satisfied that on 27 November 2018 any of the officials failed to produce their entry permits for inspection on request. I would accord no weight to the fact that Burke did not mention in his affidavit Danalis and Dimitriou showing their permits. He denied in cross-examination that the reason he did not mention the matter was because he knew they did not. The Commissioner submitted that it was “a remarkable thing not to recall” when Burke acknowledged that it is a legal requirement and condition of the permit that it be produced on request. But I do not accept the submission. There is no particular reason why Burke would have had an independent recollection of them doing so, especially when he was the first one to produce his permits. Importantly, in his notes (CT-12) Thomas recorded that Burke did show him his permits. In light of this contemporaneous evidence, I would also place little weight on Burke’s remark (“Are we going to play that game, are we?”). While the comment might have reflected Burke’s disdain for the process, it does not contradict the weight of the evidence that indicates Burke did show his permit to Thomas.

93    Neither am I satisfied that Danalis or Dimitriou failed to produce their permits when asked to do so the following day. Both of them denied the allegations and the evidence upon which the Commissioner relied does not undermine those denials. In fact, it tends to support them.

94    In relation to the visit by Danalis and Dimitriou on 28 December 2018, Thomas said that, after he spotted Danalis and Dimitriou at the first aid shed, he had a conversation with them. Insofar as it is relevant to these contraventions, this is Thomas’s account of the conversation given in the statement annexed to his affidavit:

I said: “What’s wrong now?”

[Danalis] said: “I have boys working in the rain.”

I said: “No, I have boys working undercover and when they started working, there was no rain.”

I then said to [Dimitriou and Danalis]: “How did you get on site? Where’s your permit? Show me your permit?”

[Danalis] showed me a piece of paper on a clip board which rested on his arm but I couldn’t determine what it was.

I said: “What is your real name, what’s the name on your permits? You can’t satisfy me who you are, you are not allowed on site. Once again, you haven’t followed procedure and you haven’t signed into site.”

95    Contrary to the Commissioner’s submission, neither Thomas nor Martin said that Dimitriou did not produce anything. Thomas’s evidence is silent in this regard. Neither did Martin. In the statement annexed to his affidavit, Martin said he was not sure whether the officials showed Thomas their permits. In cross-examination he said he did not recall Danalis showing his permit or any of the conversation between Thomas and Danalis concerning the permit apart from the request to produce it.

96    In cross-examination Danalis insisted that both he and Dimitriou showed Thomas their permits. Dimitriou also maintained that he had displayed his permit, but conceded that he could not recall whether Danalis had done the same. As with Burke, there is no particular reason why Dimitriou would have an independent recollection of Danalis showing his permit.

97    The question Thomas admittedly asked Danalis —“What is your real name, what’s the name on your permits?”— is inconsistent with the Commissioner’s case that the permits were not shown. What reason would Thomas have had to ask the question if he had not inspected Danalis’s permit? Thomas also admitted to asking Danalis to let him take a photocopy.

98    In cross-examination Thomas claimed that the permits were in two different names:

[MR LATHAM:] You knew his name, you knew who he was, you had met him on over a dozen occasions, didn’t you?---I knew him as Maki Danalis, there’s two permits there. One is a work, health and safety entry permit and one is a federal permit, he has to have them both with his – and if the two of them are different I don’t know who he is.

HER HONOUR: You don’t – what was the last statement?---He has two permits in two different names. What I believe, again, it was shown over me, like this, I could not get close enough to witness them.

99    Thomas appeared to be making this evidence up as he went along. The evidence the Commissioner tendered disclosed that both permits were in the one name: Gerasimos Danalis.

100    Ultimately, Thomas conceded that what he was really saying was that Danalis could not enter the site until he could prove that his permits were correct.

101    Furthermore, the allegation that Danalis and Dimitriou refused to produce their entry permits on request is not supported by the contemporaneous note Thomas made of the site visit that day. It relevantly states:

I received a Phone call from Gary Brownlee to advise the CFMEU were onsite @ 12.30pm

On approach to Maki & Anthony who were onsite @ the First Aid shed I asked what was the Issue, Maki stated he had a Phone call from a Member regarding persons working in the rain

I requested he rephrase that comment & stipulate what he is referencing

He obliged with Sec 117 Boys working in the Rain I advised there is no such thing this falls under an award, I briefed all site personal @ the Pre start to work to their relevant EBA,s

He then changed the comment to Safe access & egress & persons unloading a Truck in the Rain

I requested they attend the Site office to discuss & at least sign in, once there I issued them a copy of the Workcover Guide to workplace right of Entry & a Page from the Act Sec 28 Div. 4 Duties of Officers Which they did not comply with

Maki persisted to enter site I told him he cannot enter site unless he undertakes a Visitors induction & wears appropriate PPE notably Glasses

He refused both reasonable requests, I then warned them that if they enter site they are once again in breach of their Permits & trespassing I will call the Police to have them escorted from site

They entered Site, I then Contacted the Police

102    In cross-examination Thomas admitted that Danalis had shown him his permit. This is how the evidence emerged:

MR LATHAM:     You asked for their permits, didn’t you?---I did.

You said – and Mr Danalis showed you his permit and you said to him, “What’s your real name?” didn’t you?---I did.

You knew who Mr Danalis was, didn’t you?---I don’t know him as Geronimo, or Geronimos…

No, I’m not talking about that. He showed you his permit and you said, “What is your real name? You can’t satisfy me as to your real name, you’re not allowed on the site”?---That’s correct…

And you said to him, “I don’t know who you are, let me take a photocopy of your permit didn’t you?---That’s correct.

(Emphasis added.)

103    It is evident from this exchange that Danalis did produce his permit when asked to do so and Thomas read it.

104    The Commissioner did not discharge his burden of proving that the union officials refused or failed to produce their entry permits on either day. It follows that the allegations that Burke, Danalis and Dimitriou contravened s 497 of the FW Act must be dismissed.

The alleged contraventions of section 500 of the FW Act

The law

105    Section 500 of the FW Act provides that:

A permit holder exercising, or seeking to exercise, rights in accordance with [Pt 3-4] must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

106    It is readily apparent that the elements of a contravention are that the respondent was at the relevant time:

(1)    a permit holder; and

(2)    exercising or seeking to exercise his rights of entry in accordance with Pt 3-4; and

(3)    intentionally hindering or obstructing another person; or

(4)    otherwise acting in an improper manner.

107    Section 500 appears in Pt 3-4 of the FW Act, which concerns the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under the Act and State or Territory OHS laws.

108    The Commissioner alleged and the union officials admitted that, before entering the site on that day each of the union officials reasonably suspected that one or more contraventions of the WHS Act had occurred or were occurring and that they entered the site “in exercise of, or seeking to exercise, his ‘State or Territory OHS right’” within the meaning of s 494(2) of the FW Act.

109    As I have already said, it is not in dispute that on both 27 and 28 November 2018 each of the union officials who entered the project site was a permit holder, exercising the rights of a permit holder in accordance with Pt 3-4 of the FW Act. Indeed, these matters were admitted. The dispute concerns whether they were intentionally hindering or obstructing others or otherwise acting in an improper manner.

110    The words “hindering” and “obstructing” are not defined in the Act. In these circumstances it is to be inferred that the Parliament intended that they bear their ordinary meanings. As Colvin J observed in BGC POS Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 74; 285 IR 43 at [26]:

The ordinary meanings of the words hinder and obstruct overlap. To hinder is to delay, interrupt or cause difficulty to do something or for something to happen. To obstruct is to block or get in the way of something, but may refer to preventing or interfering with a physical action or the movement of something. …

111    For the purposes of s 767 of the WR Act, which is in relevantly identical terms, Flick J held in Darlaston v Parker (2010) 189 FCR 1 at [52] that the phrase “intentionally hinder or obstruct” embraces any act or conduct that makes it more difficult for a person to discharge his functions except for an act or conduct that is accidental, provided that it is of such a nature as to amount to an “appreciable” obstruction or interference. Darlaston has been applied to s 500: see, for example, Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 197 at [260] (North J).

112    Whether conduct hinders or obstructs depends on its effect, not its purpose: BGC POS at [39]. But it is not necessary for the Commissioner to prove that a permit holder intended the effect; all he needs to prove is that the actions which had that effect were deliberate: BGC POS at [43].

113    The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (FW Bill) provides some insight into the kind of conduct to which this section is directed. It states at [1993]:

Conduct by a permit holder that would hinder or obstruct a person includes action that intentionally prevents or significantly disrupts an employer or employee from carrying out their normal work duties. An example of this would be where a permit holder deliberately parks his or her car in the entrance of a building site with the intention of preventing access to the site by trucks scheduled to deliver concrete.

114    Whether or not a permit holder has acted in an improper manner is to be determined objectively: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) (2018) 258 FCR 158 at [39] (Dowsett, Tracey and Charlesworth JJ). Once again, an intention to act improperly need not be proved: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106] (Mansfield J). See also Setka v Gregor (No 2) (2011) 195 FCR 203 at [35]–[36] (Lander, Tracey and Yates JJ). Impropriety arises, for the purposes of s 500, if there is “a breach of the standards of conduct that would be expected of a person in the position of the alleged [contravenor] by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case”: Castlemaine Police Station Case at [39]. This formulation was taken from R v Burns (1995) 183 CLR 501 at 514–5 where Brennan, Deane, Toohey and Gaudron JJ said:

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 offender 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.

115    The Explanatory Memorandum to the FW Bill stated at [1994] that acting in an improper manner is intended to cover a wide range of conduct and includes actions inconsistent with the requirements of the right of entry provisions, such as deliberately engaging in conduct the permit holder knows is not permitted. The expression includes statements made by a permit holder and the manner in which the statements are made: Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847; 270 IR 190 at [170] (Barker J). Nevertheless, there are limits.

116    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 252 FCR 198 which, for convenience, I shall call the Qanstruct case, Bromberg J observed at [139] that “whilst ‘improper’ acts beyond hindrance or obstruction are contemplated by s 500, it cannot have been intended that any or all conduct that may be improper within the ordinary meaning of that word should be caught by the provision”. His Honour held at [140] that, for an act to be “improper” within the meaning of s 500, it must have a sufficient connection to the interests the section seeks to protect. More particularly, it must diminish or prejudicially affect those interests. His Honour identified at [139] the relevant interests as the rights of occupiers of the premises to go about their business without undue inconvenience. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473 at [122] Tracey J, with whom Allsop CJ agreed at [1], similarly remarked:

[A] permit holder acts “in an improper manner” for the purposes of s 500 if he or she exercises a right, conferred on permit holders by Part 3-4 of the FW Act, without complying with one or more of the requirements of Subdivision C. The relevant impropriety is to be found in the failure of permit holders who hold privileged rights and associated responsibilities to satisfy their statutory obligations. If that failure is inadvertent or unintentional, liability will still arise but such ameliorative factors will be relevant in determining appropriate penalties for the contraventions.

27 November 2018

The allegations

117    The Commissioner alleged that on 27 November 2018 Danalis, Dimitriou and Burke each contravened s 500 by intentionally engaging in conduct which included:

(a)    obstructing project workers on level 1 of building 8A from continuing with, and completing, the concrete pour;

(b)    obstructing Evans and McGrath from driving their trucks into the site to deliver concrete for the pour; and

(c)    hindering Murray, Thomas and Rees from discharging their duties on the project, including maintaining the work program on schedule and within budget.

118    If the Commissioner’s allegations are made out, there could be no doubt that Danalis, at least, contravened s 500. As the Commissioner pointed out in his submissions, telling workers who were pouring concrete to “get off the deck” and directing that a concrete pour be stopped has been found to amount to intentionally hindering work undertaken at a building site: Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668; 147 ALD 373 (Flick J) (overturned on appeal but not on this point: Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46). So, too, has standing in front of a concrete truck and between the chute of a concrete truck and a concrete pump after being told to move: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2016] FCA 872 (Tracey J). Allegations of this very kind were made against the union officials in the present case.

119    In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) [2018] FCA 1698; 283 IR 338 Mortimer J found that a permit holder exercising or seeking to exercise his rights under Pt 3-4 of the FW Act, who made statements and conducted himself in a way that was calculated to bring work to stop for the day, was intentionally hindering and obstructing subcontractors and their employees from continuing to work on the site.

Danalis – first series

120    Two sets of allegations are made against Danalis, described in the amended statement of claim as the first series and the second series. In short, the first series relates primarily to the events constituting, and/or associated with, the obstruction of the concrete pour before the Second Truck tried to enter the site. The second series relates primarily to the events constituting, and/or associated with, the obstruction of the concrete pour from that time onwards.

121    In para 73 of the amended statement of claim the Commissioner alleged that:

On the basis of the matters pleaded in paras 3, 27–38, 59 and 60, Danalis contravened section 500 of the FW Act on 27 November 2018 at the Project Site by intentionally:

(a)    obstructing Project Workers on level one of building 8A from continuing with and completing the pour of a concrete slab;

(b)    obstructing the driver of the First Truck from completing delivery of the concrete load;

(c)    obstructing Project Workers from operating a concrete pump and pumping the concrete load to level one of building 8A for the pour of the concrete slab;

(d)    hindering Thomas from discharging his duties on the Project, including maintaining the work program for the Project to be performed on schedule and within budget;

(e)    hindering Rees from discharging his duties on the Project, including maintaining the work program for the Project to be performed on schedule and within budget.

122    Paragraph 3 relevantly pleads Danalis’s status as an officer, organiser, employee and member of the Union and permit holder for the purposes of both the FW Act and the WHS Act. Paragraphs 59 and 60 plead that each of the union officials entered the project site in exercise of, or seeking to exercise, his State or Territory OHS right, namely inquiring into a suspected contravention of the WHS Act affecting relevant workers at the project site under s 117 of the WHS Act, and that each of them was exercising, or seeking to exercise, his rights under Pt 3-4 of the FW Act. Paragraphs 27–38 recite allegations of fact underpinning the conclusory allegations in para 73. The allegations in paras 27–38, so far as they implicated Danalis, were these:

(1)    On level 1 of building 8A:

(a)    after Burke raised with Thomas concerns about the lack of two “points” of access and egress and some of the workers not wearing safety glasses, Burke and Danalis demanded that the workers conducting the concrete pour should be taken off the deck and re-inducted into their SWMS at the site office ([27]); and

(b)    after Thomas refused to agree to the workers being re-inducted at the site office and arranged for the safety glasses to be distributed and proposed re-induction on level 1, Danalis told Thomas he would stop the concrete pour ([28]–[29]).

(2)    On ground level:

(a)    Danalis walked to the back of the First Truck as it was reversing, placing himself between it and the concrete hopper and pump, and then put his hand up to push the override button that would stop the reversing First Truck ([31]);

(b)    Rees tried to stop him and told him he was obstructing the concrete pour and putting himself in danger ([32]);

(c)    Danalis told Rees not to touch him and that he could do whatever he liked ([33]);

(d)    Danalis told the driver of the First Truck that he was not to put concrete into the hopper ([33]);

(e)    Danalis told Thomas and Rees that the concrete pump was not set up correctly as it was on soft ground and Rees told him that the pump set-up was “adequate” ([34]–[35]);

(f)    Danalis told the driver of the First Truck not to put any more concrete into the hopper ([36]);

(g)    the driver of the First Truck then stopped work ([37]); and

(h)    after a period of time, during which the Crookes representatives continued to talk to the union officials, the driver of the First Truck reported to Rees that the concrete in his truck had “gone off” and packed up his truck and drove away ([38]).

123    Paragraph 74 is in the following terms:

In the alternative, Danalis contravened section 500 by acting in an improper manner by reason of the conduct underlying each of paragraphs 73.a - 73.e, or a combination of them.

124    The manner in which the Commissioner pleaded the contraventions of s 500 was unsatisfactory and potentially misleading. Some of the alleged contraventions were pleaded on the basis that specified conduct listed in specific subparagraphs was the basis for the contravention (the first form of pleading). Some relied on the conduct in “each of” the subparagraphs (the second form). Others referred to a “combination” of the subparagraphs (the third form). The union officials submitted that the first form of pleading required all of the subparagraphs to be proven to establish the contravention; the second required any of the subparagraphs to be proven; and the third required a combination (which I interpret as two or more) of the subparagraphs to be proven.

125    Para 73 was in the first form of pleading. During the hearing, lead counsel for the Commissioner, Mr White SC, proffered conflicting explanations as to how para 73 was intended to operate, and provided no written response to the union officials’ submissions on this point. At one stage, Mr White appeared to suggest that each subparagraph of para 73 was a separate contravention of s 500 although his remarks are confusing:

MR WHITE: … Now, the point, as I understand it, that the respondents wish to make is that, in listing the items or persons who have been obstructed or hindered, we are saying, apparently without realising it ourselves, that we cannot succeed on the contravention unless we prove and your Honour finds each and every one of those subparagraphs, as opposed to the usual way in which the evidence on all of those matters would be taken.

And your Honour may accept some of them and may not accept others. And your Honour may say, “Well, I find in relation to the project works, for example, or the first truck that there was an obstructing,” and the others would fall away. That’s how we intended it and that’s how we understand it and I would have thought that that’s how the court would understand it. Apparently the respondent don’t and I just wanted to ventilate that to make it clear that we are saying that we could succeed on any one of those subparagraphs if the findings go our way and your Honour finds that it amounts to a contravention.

126    In closing submissions, however, Mr White confirmed that the allegation in para 73 was that it was the combination of the several events that constituted the contravention, referring to the subparagraphs as being a “continuum of acts”. That is consistent with the natural reading of para 73. The absence of a conjunction, such as “or” or “and/or”, between subparagraphs or of any introductory phrase in the chapeau to the paragraph to suggest otherwise, indicates that the subparagraphs were intended to be cumulative.

127    In substance, then, para 73 pleads that the contravention consisted of engaging in a course of conduct comprised of the sum total of all the events described in it.

128    It therefore follows, as the union officials submitted, that to succeed on the obstructing or hindering allegations the Commissioner had to prove each of the elements listed in subparas (a)–(e). Consequently, if any one of the subparagraphs is not proved, then the Commissioner’s case falls over.

129    The Commissioner also pleaded in para 75 that Danalis contravened s 500 by acting in an improper manner by a “combination of” the following conduct:

 (a)    refusing to get out of the way of the reversing First Truck as requested by Rees;

(b)    ignoring or recklessly disregarding the reasonable explanations and proposals by Richard Crookes representatives with regard to the safety issues raised;

(c)    persisting in his attempt to shut down the Project Site unlawfully and without authority to do so; and

(d)    behaving in an abusive, insolent and aggressive manner towards the driver of the First Truck and representatives of Richard Crookes.

130    These allegations were largely based on the same paragraphs upon which the Commissioner relied to support para 73. The Commissioner’s submissions departed somewhat from his pleading, however, in that, in addition to the matters pleaded in para 75, he submitted that Danalis acted in an improper manner by a combination of the above conduct and also by refusing to show his entry permits on request. Although the chapeau to para 75 referenced the conduct pleaded at paras 22 and 23 in support of the alleged contravention and paras 22 and 23 captured the allegations about the entry permits, no such matter was pleaded in any of the subparagraphs as conduct constituting improper behaviour for the purposes of s 500. No application was made, let alone granted, for leave to amend the pleading. In these circumstances it would be unjust to have regard to the evidence in support of the alleged contravention and the submission the Commissioner made should not have been made: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [64] (Logan, Bromberg and Katzmann JJ). In any case, I have already found that those allegations were not made out.

131    The respondents submitted that there was no evidence that any of the union officials intentionally obstructed the project workers on level 1 of building 8A except for their involvement in pointing out safety concerns that led to the cessation of work ordered by Crookes to allow for the provision of safety glasses and the re-induction of workers.

Did Danalis intentionally obstruct or hinder as alleged in para 73 of the amended statement of claim?

132    The Commissioner made the following allegations in paras 27–29.

133    While on level 1 of building 8A, Burke raised with Thomas concerns about the absence of two points of access to, and egress from, the building and about some of the workers not wearing safety glasses. Burke and Danalis demanded that the workers conducting the concrete pour be taken off the deck and re-inducted into their SWMS at the site office. Thomas disagreed but arranged for safety glasses to be distributed to the workers and proposed a re-induction on level 1. Danalis then told Thomas that he (or they) would stop the concrete pour.

134    The allegations were largely derived from Thomas’s account of events.

135    In the statement annexed to his affidavit he said (without alteration):

After seeing the plant operating Burke started asking a number of questions.

Burke asked: “Why the guys don’t have glasses on?”

Burke asked: “Why concreters were working under the concrete pump”

Burke said: “There has to be two points of access and egress on site”

I said: “No it’s not, prove it.”

I said to Shane [Martin]: “Go down stairs and give them glasses.”

Burke said: “Get the boys off the deck and re-induct them.”

I said: “No, we will re induct them here.”

I said: “This isn’t an issue because there was a spotter present. These concreters conduct a pre start before each pour.”

I was insistent that they keep the pour going. It’s important that suspended, post tension slabs not stop pouring mid pour, as these slabs are not designed to incur cold joints.

Burke noticed that the concreters were not wearing safety glasses.

Burke said: “They need to get off the deck and be re-inducted into their SWMS.”

Shane Martin then went down to the lower ground floor and gathered safety glasses for the concreters.

I said to Burke: “It’s not a legislative requirement. We have provided them with glasses and we can refresh them of their SWMS on the deck.”

[Danalis] said: “We’ll do it old school and block the concrete trucks”.

136    I am not persuaded that at this time Danalis said that they would “block the concrete trucks” or stop the concrete pour.

137    First, if Danalis had made such a declaration, it is likely that one or more of the Crookes representatives would have remonstrated with him or taken immediate action to prevent him from doing so. Yet on Thomas’s account there was no reaction to Danalis’s remark.

138    Second, neither Rees nor Martin stated that Danalis said any such thing, although each of them was apparently in a position to hear him had he done so. In cross-examination Rees confirmed that Danalis said he was “going old school”, whatever that means, but at the same time he agreed that Danalis did not then say he (or they) would block the concrete trucks or stop the concrete pour.

139    In fact Rees’s evidence was inconsistent with Danalis making such a statement. Rather, his evidence was that he surmised that this was what the union officials were going to do and it was he, not Danalis, who said that the officials were going to stop the pour. On Rees’s account, all Danalis proposed while they were on level 1 was a brief interruption or suspension of the pour to enable the concreters to be re-inducted. Danalis called for the pour to be stopped. He did not say that the union officials would do it.

140    In the statement annexed to his affidavit Rees stated that Burke observed that “not all concreters are wearing safety glasses” and then Danalis said: “Stop the pour. Reinduct all concreters in the site shed”. A discussion then ensued. Rees said he told Danalis and Burke that Crookes would do a refresher “now on the deck” and provide safety glasses to all concreters who were not wearing them. Rees said he then instructed one of the foremen to procure the safety glasses from the site office and take them to level 1 for the concreters who were not wearing any. He said that Burke insisted on the workers being re-inducted in the site shed and, as the foremen handed out safety glasses to the concreters, there was a heated conversation between Thomas and Rees and the three union officials. He and Thomas objected to the matters they raised and showed them “evidence why their issues weren’t breaches”. He said that Danalis responded: “[If] [t]his is where you want to go with this, we are going to go old school now”. Rees said that Danalis and Dimitriou then walked away from the group down the stretcher stairs towards the concrete truck and pump and stood nearby on the access road adjacent to the site office. At this point Rees stated:

I had a gut feeling that Danalis and Dimitriou were going to stop the concrete pump and I had a conversation to [sic] Colm.

I said: “They are going to try and stop the concrete pump”.

141    In cross-examination Rees acknowledged that when Danalis was on the deck he did not say he was going to stop the concrete pour. That concession is consistent with what he said in his evidence in chief. If Danalis had announced that they were going to stop the pour, why would he rely on his gut feeling?

142    Martin made no mention of Burke at this point. Nor did he support Thomas’s evidence that Danalis said they were going to stop the pour. His account was as follows:

The group walked up to level 1 of building 8A on the scaffolding and monitored work going on around us.

[Danalis] said: “Should the guys be wearing glasses?” Referring to the concreters and the linesman doing the concrete pour on level 1.

Thomas said: “Yes they should. I’ve got no problem giving the guys glasses.”

[Danalis] said: “Have you got an emergency evacuation procedure?”

Thomas said: “Yes we do. Shane can you go and get the emergency evacuation procedures and glasses for the workers.”

I said: “Yeah, no problems.” I then left the group to get the items [Thomas] requested.

I was gone for about ten minutes getting the evacuation plan and glasses and then returned to the area where the group was when I left and went and gave the glasses to the workers to put on, which they did. When I returned to the group, I could hear a loud conversation between [Thomas] and [Danalis].

[Danalis] said: “We can do it the old fashioned way, if you like?”

I don’t recall what was said.

143    Danalis denied that he told Thomas that he or the union officials would stop the pour. Danalis deposed that, when they reached the deck, he voiced concerns about workers being under the boom of the concrete pump. He also said that he saw a sign which listed the required personal protective equipment and expressed his concern that none of the workers were wearing safety glasses. He then asked Thomas to provide the glasses and requested permission to address the workers working under the boom about “the safety issues” but either Thomas or Rees denied that anyone was working under the boom and refused permission for him to address the workers. Danalis’s evidence was that Burke, not he, said that the workers should be taken off the deck and re-inducted. He said that these discussions occurred while the concrete pump continued to operate.

144    While he denied saying he would stop the pour, he did say in his affidavit that he said “something to the following effect to the wider group”:

There’s no point dealing with you, we’ll just go downstairs and sort it out ourselves.

145    He went on to say that he meant he “would look at the concrete pump and if there was a safety issue, we could stop the pour that way”. He said he was strongly of the view that the pour was unsafe and the Crookes representatives were not listening to them.

146    Dimitriou insisted that Danalis did not say anything like “Well, we will do it old school. We will stop the pour”. Burke professed to have no recollection.

147    It was not put to any of the Crookes employees that they had colluded with each other or conferred on the contents of their statements and the fact that the statements differ in several respects tends to suggest that they did not. In the circumstances I consider it is more likely than not that one of the union officials did say something like “we’ll do it old school” or “in the old-fashioned way”. On balance, that was probably Danalis. The statements of the Crookes employees were made relatively contemporaneously when their memories were likely to be fresh. The affidavits of the union officials were made nearly two years after the events in question and there is no suggestion that they made any contemporaneous notes of the discussions or, with the exception of the WHS notice, of the events in question. On the whole of the evidence, however, I am not satisfied that, while on level 1, Danalis said that he or they would stop the pour. In any event, regardless of what Danalis said, I am not satisfied to the requisite standard that during the time the union officials were on level 1 of building 8A, Danalis intentionally obstructed project workers from continuing with and completing the pour of a concrete slab.

148     The Commissioner’s evidence on this question was inconsistent.

149    Rees testified in cross-examination that the concrete pour stopped for 10 to 15 minutes while the concreters were re-inducted on the deck and provided with safety glasses “so they could meet their requirements of their own safe operating procedures”.

150    Thomas insisted that there was no interruption in the concrete pour while the re-induction took place. He explained:

The concrete truck was backed onto the boom. The boom was still in flow. And we segregated the people. So the guys that were actually pouring the slab, because you can actually still flow the concrete – we re-inducted them – it’s a quick procedure of just going through the steps, a, b, and c. And then getting them to resign [sic] onto it.

151    In this respect Thomas’s evidence was consistent with Danalis’s.

152    Nevertheless, I am satisfied that the essential elements of the allegation in para 73 are made out. In particular, I am satisfied that, by reason of his conduct on the ground and his interactions with the driver of the First Truck, Danalis did intentionally obstruct the project workers on level 1 of building 8A from continuing with, and completing, the pour of the concrete slab. I am also satisfied that Danalis obstructed the driver of the First Truck from completing the delivery of his concrete load, that he obstructed workers from operating the concrete pump, and, to the extent that these actions interfered with the progress of the concrete pour, that he hindered Thomas and Rees from discharging their duties on the project. Thomas and Rees both had an interest in ensuring that the work program for the project was performed on schedule and within budget.

153    The evidence firmly establishes that Danalis’s actions with respect to the driver of the First Truck interrupted the pour, causing the concrete to spoil and the driver to leave. There is little room for doubt that Danalis’s actions were intentional.

154    Rees gave the following account in the statement annexed to his affidavit.

155    After Danalis and Dimitriou left level 1 of building 8A, he and Thomas led the group (including the members of the safety committee and Burke) back to the site office. When they reached the site office, Rees saw Danalis walk to the back of the concrete truck placing himself between the rear of the moving vehicle and the concrete pump. It appeared to him that Danalis was going to push the “override” button on the concrete pump (also called the “e-stop” or “emergency stop” button), which would have stopped the pump. When Danalis was within about a metre of the hopper, he interposed himself between Danalis and the hopper and directed Danalis that he was not to stop the concrete. Danalis shouted: “Don’t touch me”. Rees instructed the concrete pump operator to continue placing concrete in the hopper. Danalis instructed him not to. Rees told Danalis he was restricting them from doing their construction works. For the next half hour or so, Thomas and Rees tried to negotiate for the pour to continue. Rees said that the concrete was at risk of going off in the pump line. Danalis replied that the pump was “not even set up correctly” as it was “on soft ground”. Rees responded that they had a “geotech report for compaction results”.

156    Thomas instructed the concrete pump operator to carry out a visual inspection and advise whether the pump was set up correctly. The operator conducted the inspection and told Thomas that he had “no issues” whereupon Rees said to Danalis: “Based on professional advice from the operator and the geotech report I deem the pump setup adequate”. Danalis replied: “You don’t care. You’re putting the workers at risk”. Danalis then approached the First Truck driver and said “in [an] assertive voice”: “You’re not putting any more concrete in”. Rees declared: “You cannot impede the works”.

157    The driver of the First Truck stopped work, apparently intimidated and confused, and stood beside his truck while the Crookes representatives and the union officials continued to talk. A little while later, the driver told Rees that the concrete had “gone off”. The driver then packed up and left the site.

158    Steps were then taken to try to “save the slab”.

159    Some of this evidence was corroborated by Martin. He confirmed that Danalis had put his hand out towards the emergency stop button and that Rees tried to stop him from hitting it. Martin said that unauthorised people should not be near a concrete pump. He said that Rees told Danalis that he could not do as he was doing because he was putting himself at risk whereupon Danalis replied: “I can do whatever I like”. At this point Rees took Martin aside and asked him to contact the police. Martin did as he was asked.

160    Martin gave a different account of the conversation about the geotech report. He said that Danalis asked Rees whether he had a geotech report “as the legs of the pump are close to the wall and seems to be sinking” and Rees replied that they had a geotech report and there was rock under the dirt.

161    Thomas confirmed that Danalis stood between the concrete pump and the First Truck while it was discharging concrete into the hopper. He also confirmed that Rees told Danalis he was obstructing the concrete pour and putting himself in danger. Like Martin, Thomas said that Rees tried to usher Danalis out and away from the pump by putting his hand out to Danalis, which prompted Danalis to reply: “Don’t touch me”.

162    In his affidavit Danalis deposed that he left level 1of building 8A in order to check the concrete pump to see if there was a safety issue particularly because there were people working under the boom. He said he was minded to explain the safety issues to the drivers and operators and convince them not to continue with the pour until those issues had been addressed. He walked down the stairs and out to where the concrete pump truck was set up and could see that the ground underneath was sinking under the front of the left outrigger which was set up on a wooden plank. From his observations he presumed it was on soft ground. He went on to say:

When the pump operates, the pump vibrates. When the vibrations were occurring with this pump, because the outrigger was not level, there was more bouncing or play than I thought was usual. Outriggers should be firm when they are extended and when the hydraulics of the outrigger press the foot of the outrigger into the ground.

The way the pump was operating, the boom was extended and leaning over the truck on the same side as the outrigger that was sinking into the ground and in which there was bouncing with the vibrations of the pump. If the pump was sinking on that side, the weight of the extended boom would cause the boom to hit the scaffolding or tip the pump truck over.

163    Danalis said he saw the driver of the First Truck emptying his load into the hopper of the pump. He admitted, and it is an agreed fact, that he placed himself between the hopper and the First Truck. He did not admit to telling the driver not to put any more concrete in the hopper but he volunteered that he asked him to do so until the safety issues were addressed. And when the driver did not comply with his request, saying he only had a little bit left and he wanted “to get rid of it”, Danalis deposed that he told him: “You shouldn’t be pouring while there are safety issues on site. There are people on the deck at risk”.

164    The recollections of all the witnesses were imperfect. That is understandable. I consider that it is more likely than not that Danalis did ask the driver not to continue with the pour but, as he himself admitted in effect, when the driver persisted, he not only told him not to but he took matters into his own hands.

165    While Dimitriou deposed that he did not see Danalis push or try to push the emergency stop button on the agitator or the pump, Danalis admitted to reaching for the emergency stop button on the agitator. This was no accident. He denied in cross-examination that he was doing it to stop the concrete pour. At first he claimed he was doing it so that he could have a discussion with Rees because the agitator was noisy. But I find that difficult to believe. He could have walked away from the agitator to have that discussion. He conceded it was not necessary to turn off the agitator if he wanted to talk to Rees. It is much more likely in all the circumstances that his purpose was to prevent the driver from discharging the concrete and to bring a stop to the pour. After all, on his own account he had asked the driver not to put any more concrete into the hopper, the driver did not do as he asked, and he considered that the safety of the workers on the deck was in peril. I accept that he was genuinely concerned for the safety of the concrete workers. As he admitted in effect in cross-examination, however, he was not entitled to take matters into his own hands.

166    The written submissions made on Danalis’s behalf concerning what happened when he descended the stairs from level 1 of building 8A were sparse. All that was put was that he raised safety issues in relation to the pump and that there was no delay to the project in the end, a matter Rees conceded in cross-examination. But these submissions were not to the point. It was not in dispute that Danalis had raised safety issues in relation to the pump. And the fact that the project as a whole was completed on time is no answer to the allegation that Danalis obstructed or hindered the persons in question.

167    In oral argument Mr Latham submitted that Crookes cannot have been hindered or obstructed by being required to perform its duty of ensuring the safety of the site, and that if the safety concerns raised by the union officials were genuine there could be no contravention of s 500. Mr Latham relied on the judgment of the Full Court in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88. That case involved an allegation that union officials had contravened s 767 of the WR Act by entering a worksite and speaking with employees in the belief that they were authorised to do so (a view not shared by John Holland), thereby causing a senior officer of the company to respond and thus impeding his duties. The Full Court held that, if the entry of the officials were authorised, then the senior officer of John Holland was not hindered or obstructed as he was “doing no more or less than what his duties as an employee of John Holland required him to do” (Spender J at [7]–[8], Dowsett J at [45]).

168    It is correct, as the union officials submitted, that Crookes had a duty to ensure, as far as reasonably practicable, the health and safety of its workers: WHS Act, s 19. It is also true that the union officials had a right to enter the site for the purpose of inquiring into suspected contraventions of the WHS Act that affected relevant workers: WHS Act, s 17. But the rights the union officials could exercise while at the site were relevantly limited to inspecting the site, consulting with relevant workers and the person conducting the business, and giving warnings to any persons reasonably believed to be exposed to serious safety risks: WHS Act, s 18. Danalis’s conduct went beyond the scope of his authority. He was not just inspecting the site and consulting with the workers or warning those he reasonably believed to be exposed to serious risks to their safety. He attempted to interfere with the work that was being undertaken and the conduct of the business. He tried to switch off the agitator and he instructed the driver not to continue with the pour. To paraphrase a concession from his counsel, things got out of hand. As a direct result of Danalis’s intervention, against his own will and the instructions given by Rees, the driver eventually did as he was told. The concrete pour was stopped and the concrete spoiled. That meant that not only was the driver of the First Truck obstructed from completing his delivery but the project workers on level 1 were prevented from continuing with the concrete pour and completing it on schedule. Danalis’s actions also hindered Thomas and Rees from discharging their duties on the project. Unlike the actions of the union officials in John Holland, Danalis’s actions went beyond requiring Crookes to perform its ordinary duties to ensure the safety of the site.

Did Danalis contravene s 500 by “otherwise act[ing] in an improper manner”?

169    Even if I were wrong about para 73, I would have dismissed the alternative allegation made in para 74.

170    It will be recalled that in para 74 the Commissioner relied on the allegations of obstruction and hindrance in para 73. There are two aspects to s 500. On the one hand obstructing or hindering persons conducting work at a building site and on the other “otherwise act[ing] in an improper manner”. “Otherwise act in an improper manner” means what it says, namely, acting in a manner other than by intentionally obstructing or hindering. The Commissioner proceeded as though the adverb “otherwise” was not included. His approach was contrary to at least two Full Court decisions, both of which were cited by the Commissioner for other purposes.

171    The Commissioner largely relied on Bragdon at [96]–[98], although in this respect the decision was contrary to both earlier and later Full Court authority. In Bragdon Flick J held that the conduct of two union officials was both hindering a concrete pour and improper conduct within the meaning of s 500 of the FW Act. In doing so, however, his Honour overlooked the presence of “otherwise” in the section. In my respectful opinion, his Honour was plainly wrong to do so. In construing a provision of any legislation, a court must strive to give meaning to every word: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ). Moreover, it seems that his Honour’s attention was not drawn to the judgment in Setka v Gregor (No 2) in which the Full Court observed at [30]:

The primary meaning attributed to “otherwise” in the Shorter Oxford English Dictionary is “in another way, or in other ways; by other means; differently”. The subsection is thus to be understood as comprehending improper acts other than those involving obstruction or hindering.

172    In the Castlemaine Police Station Case the Full Court similarly held at [38], citing Setka v Gregor (No 2) that “the improper acts, comprehended by s 500 [of the FW Act], are acts other than those involving obstruction or hindering”. See also Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [25] (White J) and the Geelong Grammar School Case at [94].

173    It follows that to establish a contravention of s 500 by acting in an improper manner the Commissioner must prove that the alleged contravener did something other than intentionally obstruct or hinder. The Commissioner’s reliance on acts of obstruction or hindrance to make out the alternative limb of s 500 was misconceived. That is sufficient to dispose of the allegations in para 74.

174    That leaves the allegations in para 75. It will be recalled that this paragraph is in the third form of pleading. To succeed, the Commissioner must establish a combination of two or more of the following matters:

(1)    that Rees asked Danalis to get out of the way of the First Truck as it was reversing and Danalis refused to do so;

(2)    that the Crookes representatives gave “reasonable explanations and proposals” concerning the safety issues that were raised and Danalis ignored or recklessly disregarded them;

(3)    that Danalis was determined to shut down the site, with no lawful right or authority to do so; and

(4)    that Danalis behaved in “an abusive, insolent and aggressive manner” towards both the driver of the First Truck and representatives of Crookes.

175    For the following reasons, I am not satisfied that the alleged contravention is made out.

176    To the extent that the first and third matters concern the same acts of obstruction or hindrance relied on in support of the principal contravention of s 500, for the reasons given above in relation to the allegation in para 74, they must be put to one side.

177    The second matter is not made out. The essence of the Commissioner’s complaint is that Danalis persisted in inspecting the site and obstructing the concrete pour on the basis of alleged safety concerns notwithstanding the statements made by Crookes representatives to allay those concerns. To the extent that it relies on Danalis’s conduct in obstructing or hindering the concrete pour, it cannot be taken into account. This means that the actions of Danalis in blocking the First Truck, reaching for the e-stop button and allegedly stating that he would “stop the pour” should be excluded from consideration. The balance of Danalis’s actions were not improper.

178    It will be recalled that the safety concerns raised by the union officials on 27 November were identified in the WHS notice as a lack of adequate signage; “no mud maps”; workers on level 1 of building 8A not wearing appropriate personal protective equipment; those workers working under the concrete boom; a lack of emergency access and egress; the front left leg of the outrigger sinking into soft soil; and “other issues with the pour”.

179    In his statement, Rees confirmed that Burke “highlighted a signage issue”, asking “how do people know where they are?” Rees said that Thomas responded by stating: “All subcontractors are provided [with] a mud map on the back of their induction forms and its part of their inductions and pre-starts”. Rees also confirmed that Burke had raised concerns about the need for two points of access to the building, to which Thomas responded: “We have compliant access as signed off by SafeWork in the past fortnight”. Burke challenged the correctness of Thomas’s response, leading Rees to check the legislative requirements on his phone and to call Patton to confirm Crookes had complied with its safety requirements for access and egress. Rees said that Patton told him Crookes had safe scaffolding and access to the buildings. Rees stated that he then had the following conversation with Burke:

I said: “We have compliant scaffolding and access as I have just confirmed this with John Patton from SafeWork. The deck has two points of access of the scaffolding onto the concrete.” I pointed to these points as I said this to Burke.

Burke said: “I don’t give a shit about SafeWork. You need two points of access on your scaffold. You’ve got concreters working under the concrete boom.”

Thomas said: “There is a spotter there as per their SWMS providing direction to the concreters.” Pointing as he said this.

Burke said: “Not all concreters are wearing safety glasses.”

Danalis said: “Stop the pour. Reinduct all concreters in the site shed.”

I said to Danalis and Burke: “RCC will do a refresher now on the deck and provide safety glasses to all concreters who do not have them on.”

I said to James Cocks, RCC Foreman: “Go get safety glasses from the site office and bring them up to level one for the concreters who don’t have them on.”

Burke said: “You’re not understanding what we are saying. You need to re-induct them in the site shed; you are putting your workers in harm.”

I said: “It’s not a legislative requirement for them to have glasses, it is in their SWMS. Glasses are now being provided, you can see this.” As I said this I saw Shane Martin and James Cocks handing out safety glasses to the concreters who weren’t wearing them.

The conversation between the three officials myself and [Thomas] was heated as we had objected to the matters they raised and showed evidence why their issues weren’t breaches. The evidence we provided was advice from SafeWork and legislation on our phones and provided the workers glasses.

Danalis said: “This is where you want to go with this, we are going to go old school now.”

Danalis and Dimtriou then walked away from the group leaving Burke on level one with myself and the safety committee.

180    Rees went on to say that, after blocking the First Truck, Danalis told him that the concrete pump was not set up correctly. After Rees referred to the geotech report and determined the pump set-up to be adequate, Danalis said: “You don’t care. You’re putting the workers at risk”. In cross-examination, Rees denied that the workers were working under the concrete boom or that the front-left outrigger foot was sinking, but he agreed that “some” of the safety concerns raised by the union officials were legitimate, including the issue relating to the safety glasses.

181    Thomas’s account of these conversations is set out at [135] above. It is largely consistent with Rees’s. Thomas’s contemporaneous file note provided some clarity regarding the complaints raised by Burke, the responses given by him, and the nature of the reactions of the officials. It read (without alteration):

Anthony Burke then referenced signage to be an issue on Ll (Not a Legislative requirement) alternatively a Mud Map is issued to all trade via Inductions Refer to Sec 308 of the Regs specific Control Measures : Signage RCC are Compliant

Anthony Burke then Referenced the need for their to be 2 Points of egress (Not a Legislative requirement) all Scaffolds are linked access all floors refer to, Reference S20 Act Duty of persons Conducting a Business or undertakings involving management or Control of a workplace: Linked to the COP: Managing the work Environment & Facilities Sec 2 Sub Sec 2.1 Entry & Exit

Anthony Burke Referenced Concreters working under booms (Spotter was in the vicinity advising plus Pump operator undertakes a Pre start prior to each pour checking his anti burst valve sets)

Anthony Burke referenced Concrete placers not wearing glasses & requested all placers be taken from the deck & re-inducted into their SWMS, RCC advised this was not a legislative requirement RCC then provided the few guys not wearing glasses with the PPE (req to wear glasses as was in their SWMS), Refresher of SWMS was undertaken on the Deck by RCC James Cocks noting PPE / Spotter under Boom /Pump operator to undertake pre starts

Maki Danalis refused to listen to reason & the actions of above & stated we’ll do it old school & block the concrete trucks, himself & Anthony Dimitriou proceeded to leave the Escort making his way down the stairs to the pump location blocking any trucks discharging into the hopper by placing himself in a Dangerous position with the potential to be Crushed by Plant this was addressed to Maki by Myself & Tom Rees & was met with verbal abuse from Maki

182    In cross-examination, however, Thomas’s evidence was all over the place.

183    He testified that concreters should never work under a concrete boom. He appeared to concede that on 27 November some workers were under the boom for part of the day. Then he said that they were merely “in close proximity of the boom”. When asked to confirm whether workers were in fact working under the boom that day, he responded: “Not when the union officials raised it”. He later denied that workers were under the boom “at any stage”.

184    Thomas maintained that it was not a legislative requirement for there to be two sets of stairs to level 1 of building 8A and suggested that, if the concrete boom collapsed the workers on the south side of the building could safely leave by “climb[ing] down the scaffold”.

185    Thomas conceded that he had noticed the wood beneath one of the outrigger legs sinking into the ground, and that it was “dangerous” for the foot to sink. Nevertheless, he doggedly maintained that he could rely on the geotech report, even if conditions at the site had changed since the report was prepared.

186    Section 20 of the WHS Act imposes a duty on Crookes to ensure, as far as is reasonably practicable, that the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person. As an officer of Crookes, Thomas had a duty to ensure that Crookes complied with that duty (WHS Act, s 19). Thomas’s testimony revealed a less than satisfactory understanding of these duties. It is little wonder that Danalis was not reassured by what he was told on the day.

187    Martin’s account is set out at [142]. While Martin claimed it was Danalis who raised the safety concerns with Thomas, not Burke, he confirmed that the officials had raised concerns relating to the safety glasses, the “emergency evacuation procedure”, workers working under the concrete boom, the need for secondary access to the deck, and the sinking of one of the outrigger legs. In cross-examination, he conceded that Crookes had moved a secondary set of stairs to the deck partly because it was a reasonable request of the union officials.

188    Murray was not on level 1 of building 8A at the time the union officials raised the safety concerns. He recalled, however, that one of the officials complained about the concrete pump sinking into the ground. Murray stated that he did not believe that the pump was sinking as it “had been operating in the same position without any issues” and did not need to be “reset up or moved”. However in cross-examination he said he had not inspected the pump to determine this. He went on to say that one of the officials, who I infer from his description was Danalis, stated that “it’s unsafe, it’s a risk to workers” and that “people shouldn’t work if the site is unsafe”.

189    As I mentioned earlier, Patton inspected the site on 7 and 28 November. He testified in cross-examination that his safety assessment on 7 November could not be relied on to determine the safety on the site on the day in question. Yet that was what Thomas and Rees were doing. He said that he would be concerned if workers had not been wearing safety glasses on 27 November and that it would be “very serious” if one of the pump outrigger feet was sinking into the ground. He described the potential consequences of one of the feet sinking in the following terms:

The concrete pump is set up with four legs –outriggers – and the pump is set up level, with the outriggers fully extended and on solid ground. The boom can swing around 360 degrees, perfectly stable. But if the weight of the boom, with concrete in the line, is over an outrigger, and that leg sinks, it overbalances and tips over.

190    Danalis deposed that Thomas and Rees disagreed with the several safety issues he and Burke had identified. In his affidavit he recounted the following discussions on level 1 of building 8A:

When we get there, I stated to [Thomas] and Mr Rees, and everybody else that was there on the edge of the deck words to the effect that “There are workers under the boom.” I could see four or five workers immediately under the boom and others walking under the boom from time to time.

I also made a statement to the effect: “None of them are wearing safety glasses. What are the PPE requirements?” There was a sign that I could see up there on the deck, which listed PPE, including that safety glasses were required.

I then asked [Thomas] a question to the effect of “Can you provide the glasses?” I also asked a question to the effect: “Can you let us address the workers working under the boom about the safety issues?

In answer to my questions, [Thomas] and Mr Rees looked at each other and smirked and one of them answered me to the effect: “No one is working under the boom, we don’t know what you are talking about”. One of them then said: “No you can’t talk to them.”

I then said: “We have a right to talk to the workers about a suspected contravention. We only need 10 or 15 minutes with them, we won't interrupt the pour. We can do it while you are getting the glasses.”

Neither [Thomas] nor Mr Rees agreed to my suggestion.

The members of the group were all standing near each other. I was about a metre away from Anthony Burke. Around this time, Anthony Burke said to Mr Rees: “The workers should be taken off the deck and reinducted.” Anthony Burke and Tomas Rees had been having a long discussion around this time about safety. Anthony Burke made a statement to the effect: “You don't have adequate signage. You need a mudmap that identifies points of access and egress, first aid and fire extinguishers.” Mr Rees or [Thomas] made a statement to the effect: “We’ve got everything we need.” I do not now recall the specifics, but they rejected what Anthony Burke was proposing.

191    Danalis deposed that “someone pointed out there was only one staircase leading up to the deck”. He said that if the boom collapsed it would not be possible to predict if some of the workers would have access to a staircase. He rightly considered it part of Crookes responsibility under the WHS Act to ensure that there was safe egress from the deck. Danalis deposed that Rees started “getting animated” at this point, and that the following conversation took place:

He pointed across towards another building and made a statement to the effect: “We have a second set of stairs”. When he said this, he pointed to a spot 50-100 metres away to his left, about three decks over. I could not see a staircase where he was pointing, and it was not clear to me what was in the direction that he was pointing.

I replied to the effect: “Are you serious, that’s 100 metres away?”

Mr Rees replied: “It’s a second staircase”.

There was then an argument between me and Mr Rees and Calm about a second staircase. During this argument, I made a statement during the argument to the following effect: “There should be a second staircase to the deck, can you bring one?” The reason I asked this was that there were scaffolders on site. Stairs are usually affixed to one part of the scaffold when it is in use, and it is not unusual to move stairs from one part of the scaffold that is being unused to the part of the deck that is being used. It is also customary for spare staircases to be available on building sites.

During the argument, I also made a statement to the following effect: “If you don’t have a staircase, do you have something like a cage that a mobile crane can use to evacuate the men?”

Mr Rees replied: “No, we don’t have a cage, that’s not necessary.”

I then said: “You’re not being serious.”

I was having a somewhat elevated argument with Mr Rees about the safety issues. I made a statement to the following effect: “It shouldn’t take you very long to put the second staircase at all. In the meantime you can address the PPE issues.”

Mr Rees just kept refusing our suggestions. I made a statement to the following effect: “This is unserious. There is no point us continuing with you.”

192    As I mentioned earlier, Danalis said that when he viewed the pump, he noticed that the ground underneath the front left outrigger, which was supported by a wooden plank, was sinking and that he presumed the outrigger was on soft ground. He deposed that he was concerned because “the boom was extended and leaning over the truck on the same side as the outrigger that was sinking into the ground” and that this could “cause the boom to hit the scaffolding or tip the pump truck over”. Danalis annexed to his affidavit a photo taken by Dimitriou of the sinking outrigger leg and a time lapse image between 11 and 11.30 am which showed that the outrigger foot had been propped up by a piece of timber. He claimed that Crookes management were not taking the issue seriously. His behaviour on the day was consistent with that opinion. He said he had the following conversation with Rees:

I made a statement to the following effect: “The thing’s sinking, you’ve got no staircase, the workers are at risk. You should stop the pour until you’ve fixed all the issues.”

I asked a question to the effect: “why is it sinking, have you tested the ground?” Mr Rees replied to the effect: “We have a geotech report.” I asked: “Can you produce it?” I then went on to say: “I don’t think it’s relevant now anyway, given there’s an obvious problem with the truck set up.”

193    Burke and Dimitriou’s accounts of these conversations did not differ in any material respect from Danalis’s.

194    The Commissioner ultimately relied on a limited series of acts by Danalis to establish that he acted improperly, excluding his actions in obstructing the pour. They were: insisting that the workers be re-inducted in the site shed on the safety issues that had been raised; having a heated discussion with the Crookes managers about the safety issues, which included swearing; despite the provision of the safety glasses, the re-induction of the workers on the deck, Rees’s and Thomas’s assertion that non-one was working under the boom, and their explanation regarding the second mode of egress from the deck, stating words to the effect that they would do things “old school”; leaving the deck briefly unescorted to inspect the concrete pump set up; and dismissing Rees’s determination that the pump setup was adequate and the provision of the geotech report.

195    I am not persuaded that these were sham issues. It was an agreed fact that the workers were not wearing safety glasses, an issue Patton said would cause him some concern. Additionally, despite Rees’s strained explanations concerning the second safe mode of egress from level 1 of building 8A, Martin’s acceptance that the union officials’ request for a second staircase was reasonable confirms that this was not a bogus concern either.

196    It is difficult to determine on the evidence whether anyone was in fact working under the boom at the time Danalis said he saw them there but there is some evidence to indicate at least that Danalis honestly believed that to be the case. First, in cross-examination Thomas said that for the majority of the time workers were not working under the boom, indicating that for some of the time they were, albeit insisting that they were not doing so when Danalis said they were. Second, a photograph was tendered (exhibit 1), which appears to show a worker standing under the boom. While the appearance may be deceptive, I am not satisfied that the stated concerns were not genuine.

197    It is also difficult to determine if the front left outrigger foot was sinking into the ground. But I am not satisfied that this was a sham issue either. Thomas’s concession in cross-examination that he had noticed the foot sinking, albeit “minimally”, provides some support for Danalis’s position. The photographs annexed to Danalis’s affidavit, including the time lapse photo showing the timber being inserted under the foot, tends to support Danalis. Given Patton’s evidence that a boom could collapse if its equilibrium were disturbed, even minor subsidence was cause for serious concern, notwithstanding the rate at which it was sinking, Rees’s opinion regarding the adequacy of the setup, or the findings of the geotech report.

198    Danalis may have been unreasonable in insisting that the workers be re-inducted in the site shed rather than the deck. Further, he displayed some insolence and intemperance with some of the Crookes representatives. He was certainly disrespectful. But I am not satisfied that the actions Danalis took were improper in the circumstances. Danalis was genuinely troubled by a number of risks to the safety of the workers, which, had they materialised, could have caused serious injury. To some extent at least his concerns were vindicated by the evidence elicited in cross-examination from several of the Commissioner’s witnesses. Apart from handing out safety glasses and re-inducting the workers on the deck, the Crookes representatives did little to address his concerns. Thomas, in particular, appeared to display a dismissive and derisive attitude towards them. Only grudgingly did they agree to the official’s request for a second staircase. In these circumstances it is understandable that Danalis rejected the explanations and proposals offered by the Crookes representatives, particularly their explanations concerning the second mode of egress and Thomas’s insistence that the workers were not under the boom or that the boom setup was adequate. Moreover, it was not unreasonable for him to reject those explanations or proposals. He was not obliged to do so. As Martin testified, visitors to the site have an obligation to report any hazards. Danalis’s conduct was borne out of a reasonable concern for the safety of the workers and (putting aside his obstructive behaviour) did not go beyond what a person in his position would reasonably be expected to do in the circumstances.

199    Finally, the fourth matter — that Danalis behaved in “an abusive, insolent and aggressive manner” towards both the driver of the First Truck and representatives of Crookes — must also be dismissed.

200    While I accept that Danalis behaved in an abusive, insolent and aggressive manner towards Rees, I am not satisfied that he behaved in an abusive, insolent and aggressive manner towards both Rees and the driver of the First Truck.

201    The driver of the First Truck did not give evidence. He was not identified by any witness. But the Commissioner led no evidence to indicate he was unidentifiable.

202    No relevant observations on this subject were made by the traffic controller, Shannon Murray. According to his statement, Murray was about 15 metres away at the time.

203    The relevant part of Rees’s account was as follows. After the exchange between Rees and Danalis about the adequacy of the pump set-up, summarised in [154]–[156] above, Rees saw Danalis approach the Boral concrete truck driver whose truck was at the hopper and Danalis said “in an assertive voice”: “You are not putting any more concrete in”. This was the only statement he reports Danalis making to the driver of the First Truck. Rees said he replied: “You cannot impede the works”. Rees did say that the driver “appeared intimidated and looked confused”. Without more, however, I am not satisfied that the evidence he gave is sufficient to discharge the Commissioner’s burden of proving that Danalis’s behaviour towards the driver was “abusive, insolent and aggressive”.

204    First, Rees did not give evidence behaviour on Danalis’s part towards the driver that could be characterised as abusive, insolent or aggressive. Assertive and aggressive are not synonyms.

205    Second and in any event, Rees’s evidence on this question was not corroborated by Thomas. All Thomas said on the subject was that Rees told Danalis he was obstructing the concrete pour and putting himself in a dangerous position and tried to usher him away from the pump by putting out his hand to Danalis “gesturing to guide him away”. It was at this point, Danalis said: “Don’t touch me”.

206    Third, Thomas gave no account of any statement made by Danalis to the driver of the First Truck. Neither did Martin.

207    All that Martin said on the subject appears at [26]–[27] of his statement:

A couple of minutes later the union officials arrived at the concrete pump, which was a Bowral [sic. Boral] Concrete pump, who are a subcontractor to our concreters, Cadorin. [Danalis] started walking over to the back of the concrete pump where the concrete goes into. No unauthorised people should be near the pump. [Danalis] put his hand out toward the emergency shut off button of the concrete adjy [agitator], the round tank holding concrete in the truck.

Tom Rees who was within a metre of [Danalis] put his hand in front Danalis’s hand to stop him from hitting the emergency stop button.

Rees said: “Maki you can’t do this, you are putting yourself at risk.”

[Danalis] said: “I can do whatever I like.”

208    Third, none of the other witnesses for the Commissioner gave evidence about Danalis’s behaviour towards the driver of the First Truck.

209    Danalis’s account is set out at [163] above. In cross-examination Danalis said that he was talking to the driver when Thomas reached forward as though he was trying to grab him. He said that he was talking to the driver with a view to telling him about the risks so that he would not continue with the pour. He said he asked him not to continue with the pour after telling him what he viewed as the safety risks on site. While it was put to him that he told the driver not to continue with the pour, it was never suggested to him that his exchanges or interactions with the driver were abusive, insolent or aggressive.

Danalis– second series

210    The allegations concerning the so-called second series appear in paras 79–81 of the amended statement of claim. To some extent they duplicate the allegations in paras 73–74. But they are concerned with the events involving the alleged obstruction and hindrance of the Second and Third concrete Trucks.

211    Paragraphs 79–81 read as follows:

79.    On the basis of the matters pleaded at paragraphs 3, 40 - 56, 59 and 60, Danalis contravened section 500 of the FW Act on 27 November 2018 at the Project Site by intentionally:

a.    obstructing Project Workers on level one of building 8A from continuing with and completing the pour of a concrete slab;

b.    obstructing Evans from driving the Second Truck into the Project Site to deliver concrete for the pour of the concrete slab on level one of building 8A;

c.    obstructing McGrath from driving the Third Truck into the Project Site to deliver concrete for the pour of the concrete slab on level one of building 8A;

d.    hindering Murray from discharging his duties on the Project, including maintaining the work program for the Project to be performed on schedule and within budget;

e.    hindering Thomas from discharging his duties on the Project, including maintaining the work program for the Project to be performed on schedule and within budget; and

f.    hindering Rees from discharging his duties on the Project, including the work program for the Project to be performed on schedule and within budget.

80.    In the alternative, Danalis contravened section 500 by acting in an improper manner by reason of the conduct underlying each of paragraphs 79.a - 79.f, or a combination of them.

81.    Further, on the basis of the matters pleaded at paragraphs 3, 40 – 56, 59 and 60, Danalis contravened section 500 by acting in an improper manner by a combination of:

a.    refusing the requests of Murray and Rees to move out of the way of the Second Truck when it was attempting to enter the Project Site;

b.    ignoring and recklessly disregarding the reasonable explanations and proposals by Richard Crookes representatives with regard to the safety issues raised;

c.    persisting in his attempt to shut down the Project Site unlawfully and without authority to do so; and

d.    acting in an abusive, insolent and aggressive manner towards Evans and representatives of Richard Crookes.

212    The conduct pleaded in para 79 is cumulative. Failure to prove any one of the subparagraphs is fatal to the Commissioner’s claim of intentionally obstructing or hindering others. The allegation in para 80 suffers from the same flaw as the allegation in para 74 and can be put to one side. Paragraph 81 requires a “combination” of matters to be proved.

213    The material facts captured by the chapeau to paras 79 and 81 pleaded in the paragraphs referred to there were these: Danalis’s status as a union official and a permit holder under both the FW Act and the WHS Act (para 3); Danalis standing in the middle of the entrance driveway to the site in front of the Second Truck gesticulating and shouting to Evans not to bring his concrete truck in (para 40); Danalis telling Murray that he was not getting the Second Truck into the site (para 41); the three union officials standing in the path of the Second Truck preventing it from entering and Danalis shouting at Evans that he was not accessing the site and that “they were shutting the site down” and running a finger across his throat (para 43); the officials failing to move when told they were obstructing work from continuing (paras 44–45); Danalis insulting Rees (para 45); Evans having to leave the site and dispose of the concrete (paras 46–47); Danalis telling Thomas that no truck wold be allowed to enter the site until more stairs had been erected onto building 8A (para 48); Danalis’s remarks to McMurray that the site was unsafe and he was shutting it down (paras 51–54); Danalis’s refusal to accede to Rees’s request to issue a WHS notice or leave the site and his abuse of Rees (para 55); and the departure of the Third Truck (para 56). In para 57 the delays of the schedule and the loss to Crookes are pleaded. Paragraphs 58–60 are pleaded to demonstrate that the officials were exercising, or seeking to exercise, their rights under Pt 3-4 of the FW Act.

214    I will deal first with the allegations in para 79.

215    It was an agreed fact that Danalis gestured for the Second Truck to stop. And it was also an agreed fact that Evans was prevented from entering. I have already made findings about these matters. I am also satisfied on the evidence of the following additional matters.

216    Evans, the driver of the Second Truck was directed by Murray, the traffic controller, to park his truck next to the vehicle entrance gate. He did so in order to allow the truck that was already at the site to “finish his load” and leave. While he was waiting, he saw a man he now understands to be a union official standing in the middle of the driveway directing him not to enter. That man was Danalis. Danalis was waving his hands and yelling at him: “You’re not going anywhere, stay where you are”. Since Danalis was standing in the middle of the driveway, Evans was unable to drive onto the site without hitting him. Although Evans was later instructed by an unidentified Crookes worker to “bring in the agi [agitator], bring it in”, Danalis said: “He’s not coming in”. After some time Evans was told by the Crookes worker that he had better leave as “by the time we get through all this your concrete’s going to be dry”. Shortly afterwards, Evans left.

217    Danalis did not run his finger across his throat. I accept his evidence that the gesture he made was as he described it in his affidavit. It was “a stop gesture”, made with his right hand at shoulder height, flicking his wrist back and forth.

218    McGrath, the driver of the Third Truck, arrived at the site just before midday. He parked his car behind Evans’ truck. McGrath alighted from his truck and spoke to Evans. Evans told him there was a safety issue on the site, pumping concrete had stopped, and the site was shut while the safety issue was being “negotiate[d]”. McGrath then returned to his truck, adjusted the water content in the concrete to try to preserve it as long as possible and radioed the batcher to ensure that no more concrete was delivered to the site. After waiting for about an hour and a half at the site, he realised his concrete had “expired” or perished and, after obtaining a signature from a Crookes representative, he returned to his truck and arranged for the disposal of the concrete.

219    None of this evidence was challenged in cross-examination. It is beyond doubt that the actions taken by Danalis prevented Evans and McGrath from driving their trucks onto the site to deliver the concrete. It was an agreed fact that on that day project workers on level 1 of building 8A were scheduled to complete the pour of a concrete slab. Rees’s unchallenged evidence was that the project was delayed by about half a day, although not all that delay was attributable to the obstruction of the passage of the Second and Third Trucks. The costs incurred by Crookes as a result of the stoppage of the concrete pour exceeded $12,000, though by how much the evidence does not disclose. Each of Murray, Thomas and Rees had an interest in ensuring that the work program for the project was performed on schedule and within budget.

220    These findings are sufficient to support the allegations in paragraph 79. It is obvious that, if the concrete trucks was not permitted to enter, the project workers on level 1 of building 8A were prevented from continuing with and completing the pour that day.

221    It follows that I am satisfied that Danalis contravened s 500 by obstructing both the project workers and the two truck drivers and by hindering Murray, Thomas and Rees in the manner alleged.

222    Paragraph 81 is pleaded as an additional contravention of s 500 rather than as an alternative to para 79. It is in substantially the same terms as para 75, discussed at [174]–[198] above. To succeed, the Commissioner must establish a “combination”, that is, two or more, of the following allegations:

(1)    that Murray asked Danalis to move out of the way of the Second Truck as it was attempting to enter the site and Danalis refused to do so;

(2)    that the Crookes representatives gave “reasonable explanations and proposals” concerning the safety issues that were raised and Danalis ignored or recklessly disregarded them;

(3)    that Danalis was determined to shut down the site, with no lawful right or authority to do so; and

(4)    that Danalis behaved in “an abusive, insolent and aggressive manner” towards both the driver of the Second Truck and representatives of Crookes.

223    As I held in relation to para 75, the first and third allegations concern the same acts of obstruction or hindrance relied on in support of the principal contravention of s 500. For the reasons given above at [171]–[173], they cannot be taken into account.

224    To the extent the third matter relates to Danalis’s conduct in obstructing or hindering the concrete pour, it must also be excluded from consideration. This includes Danalis’s conduct in blocking the entry of the Second and Third Trucks and telling Crookes representatives and Evans that he (or the union officials) were shutting down the site due to safety issues. In essence, the rest of Danalis’s conduct upon which the Commissioner relied relates to his interactions with McMurray near the site office.

225    McMurray’s evidence was that after arriving at the site, he observed the union officials “standing in the middle of the truck access” and having a “very heated” conversation with the Crookes representatives. After about ten minutes, he said in his statement to the Commissioner that he was approached by a union official he referred to as “UO1” who, from his description I infer was Danalis, and that this official told him:

I am a union official, this site is dangerous. We have had a complaint from a contractor and we are shutting down the site until we are satisfied.

226    McMurray said that Danalis told him the site was unsafe, the concrete truck had sunk in the time they had been there, and the access to building 8A was noncompliant and putting union members at risk. He said that after this conversation Thomas approached him and he (McMurray) asked Thomas what the union official was “going on about” in relation to the concrete truck sinking. McMurray inquired: “Don’t we have full Geo Tech for that area?” Thomas replied: “We have the Geotech, they have it”. At this point Murray’s account continued:

UO1 said: “I don’t give a fuck what your Geotech says, we will determine; if it is safe.”

[Thomas] said: “The other issue is the access to building 8A”.

I said: “didn’t we have this assessed by the safety group before we did the pour?”

[Thomas] said: “Yes, and they have that as well.”

UO1: “We will determine what the safety requirement is.”

227    McMurray stated that Danalis then left and joined the other union officials. He said that Rees approached the group, telling them: “If there is an issue or a breach, issue us with an [sic] notice and get off the site”. He said that Danalis responded: “We will determine if and when we will issue a notice and we will stay here until we decide what we want to do.” After Rees told him that this was not the role of the Union, Danalis responded: “Go away fat boy. Go eat anther hamburger”.

228    The accounts of Thomas and Rees did not add much to McMurray’s evidence.

229    Thomas said that, after he provided Burke with the geotech report and assured him there was no risk that the concrete boom would collapse, he saw Danalis approach McMurray and the other Council officials and tell them that the site was unsafe. Thomas said that Danalis informed the group: “The concrete pump can fall over, knock the building and the scaffolding into the neighbors’ [sic] property”. Thomas said that Rees then approached the group and told Danalis: “This is my client, please leave the area”.

230    Rees provided no direct evidence of what Danalis said to McMurray. Rees said that, after he approached the group of Council officials, apparently while Danalis was speaking with them, he asked McMurray if everything was okay. He said that McMurray reported that Danalis had told him “the reason for their actions today”, to which Rees responded and McMurray agreed:

There are three matters which the union has raised. I disagree with them. We had sought third party advice that what we had in place was adequate and compliant, we had the geotech report for the claimed unstable conditions which the plant was setup on.

231    Danalis deposed that, after Rees had provided him with “part of a report” (he was unsure whether it was the geotech report) and while a second staircase was being installed on building 8A, he approached the Council officials who were speaking with Rees and introduced himself. Danalis then gave the following account of a conversation with a “suited council man”, who I infer was McMurray:

I said to the suited Council man that Mr Rees was talking to that there were significant safety issues on site. I made a statement to the effect: “We’ve asked the company to rectify them and they are not rectifying them. That's basically what's happening here.”

The suited Council man then became quite animated. He made a statement to the following effect: “Well tell us what the safety issues are and we’ll fix them.” I then went through some of the safety issues, including the issue with the sinking concrete pump and the issue with the second set of stairs being required for the deck.

232    Danalis continued:

At this point, Mr Rees yelled out a statement to the following effect: “I’ve got a geotechnical report and it says the pump’s fine.”

I replied to the following effect: “It doesn’t matter what the geotech report says, we can see that the pump is sinking. We’re here and we’ve made our own assessment that it’s not safe. We’re entitled to make our own assessment.” I may have used the expression “we don’t give a fuck”. I may also said something again to the effect of “Why don’t you go and eat another hamburger fat boy?”

At this point, Mr Rees said to us: “Just give us a notice and get off the site.” I replied to the following effect: “It is up to us when we give you the notice, we will determine that when it is as soon as practicable after we have finished the inspection.”

233    After his encounter with McMurray, Danalis said that for “most of the rest of the day” he and the other officials stood around while scaffolders installed a second set of stairs to building 8A. He said that after the stairs were installed, they left the site.

234    Dimitriou and Burke’s evidence on this matter was of little assistance.

235    As I found in relation to para 75, Danalis was not raising sham safety concerns. Nor was he obliged to accept Crookes explanations and proposals. Despite the insistence of Rees and Thomas that the geotech report confirmed the stability of the ground beneath the concrete pump, it was not improper for Danalis to reject the reports’ findings and to maintain that he was entitled to come to his own view regarding the safety of the site. This is particularly so having regard to the age of the report and when the evidence suggested that the front left outrigger leg was in fact sinking. Nor was it improper for Danalis to continue inspecting the site until the installation of the second set of stairs was complete particularly since the reason they went to the site that day was because they had an issue with access and egress.

236    The third matter must therefore be dismissed.

237    So, too, must the fourth. While I accept that Danalis behaved in an abusive, insolent and aggressive manner towards Rees, including his taunting of Rees as a “fat boy”, the fourth matter requires that the Commissioner also prove that he behaved in such a way towards Evans as well and I am not satisfied that he did.

238    The only evidence given by Evans was that, while he was waiting in his truck to enter the site, he saw a union official, who I accept was Danalis, stand in the middle of the entrance driveway yelling and waving his hands and saying in a loud, “assertive tone”: “You’re not going anywhere, stay where you are”. Evans said that he heard the official say to Murray “he’s not coming in”, referring to Evans. Evans then left his truck and approached the group of union officials arguing with the Crookes representatives. But he confirmed in cross-examination that the discussions were not directed at him, so he returned to his truck.

239    Thomas’s evidence was that, after Danalis gestured to Evans not to enter the site, Evans alighted from his truck and gave him a look that he interpreted to be “confusion”.

240    None of the Commissioner’s other witnesses provided any further evidence regarding Danalis’s interaction with Evans. As I found at [217], I do not accept that Danalis made a throat slitting gesture towards Evans.

241    The Commissioner has proved that Danalis assertively told Evans not to enter the site. But Danalis’s interactions with Evans were not abusive, aggressive or insolent. It follows that Danalis did not act in an improper manner by reason of his conduct as pleaded at para 81.

Dimitriou and Burke

242    The allegations against Dimitriou and Burke are more limited in scope. They relate to the obstruction of the concrete pour occasioned by the inability of the Second and Third Trucks to enter the site, the subject of the second series of contraventions levelled against Danalis.

243    In para 85 of the amended statement of claim the Commissioner alleged:

By reason of the matters pleaded in paragraphs 4, 40 - 48, 56, 59 and 60, Dimitriou contravened section 500 of the FW Act on 27 November 2018 at the Project Site by intentionally:

a.    joining Danalis and Burke in blocking the entry driveway to the Project Site and assisting them preventing the entry of the Second and Third Trucks, associating himself by such conduct with the statements made by Danalis to the effect that trucks would not be allowed to enter and the Project Site was shut down;

b.    obstructing Project Workers on level one of building 8A from continuing with and completing the pour of a concrete slab;

c.    obstructing Evans from driving the Second Truck into the Project Site to deliver concrete for the pour of the concrete slab on level one of building 8A;

d.    obstructing McGrath from driving the Third Truck into the Project Site to deliver concrete for the pour of the concrete slab on level one of building 8A;

e.    hindering Murray from discharging his duties on the Project, including maintaining the work program for the Project to be performed on schedule and within budget;

f.    hindering Thomas from discharging his duties on the Project, including maintaining the work program for the Project to be performed on schedule and within budget; and

g.    hindering Rees from discharging his duties on the Project, including maintaining the work program for the Project to be performed on schedule and within budget.

244    In para 86 the Commissioner alleged that:

In the alternative, Dimitriou contravened section 500 by acting in an improper manner by reason of the conduct underlying each of paragraphs 85.a - 85.g, or a combination of them.

245    In para 87 the Commissioner alleged that:

[O]n the basis of the matters pleaded at paragraphs 4, 40 - 48, 56, 59 and 60 Dimitriou contravened section 500 by acting in an improper manner by assisting Danalis in his attempt to shut down the Project site unlawfully and without authority to do so.

246    The same allegations were made with respect to Burke in paras 88–90. The only difference in the pleading is that “Dimitriou” appears in place of “Burke” in paras 88 and 90 and para 5 replaces para 4.

247    Alternatively, the Commissioner alleges that because of his conduct pleaded at paras 40-48 and his knowledge of the matters pleaded in paras 3, 27–48, 50 and 60, each of Dimitriou and Burke aided and abetted; and/or was either directly or indirectly knowingly concerned in, or party to, each of the contraventions of s 500 by Danalis and is therefore taken to have contravened s 500.

The claims against them as principals

248    I will deal first with the allegations in paras 85 and 88, which concern the claims that Dimitriou and Burke contravened s 500 by intentionally hindering or obstructing Evans, McGrath, Murray, Thomas and Rees.

249    The salient factual matters upon which the Commissioner relied were as follows.

250    Dimitriou and Burke were officers of the Union and holders of entry permits under the FW Act and WHS entry permits under the WHS Act (paras 4, 5). Dimitriou walked with Danalis over to the entry gate to join Burke after the First Truck stopped pouring concrete (para 40). Dimitriou and Burke “positioned themselves in front of the Second Truck and across the entry driveway” near Danalis while he was gesticulating and shouting at Evans not to bring his concrete truck onto the site. They “associated” themselves with Danalis’s conduct and did not contradict and qualify the statements he made to Evans (para 40). Murray asked Danalis, Dimitriou and Burke to move out of the way and allow the Second Truck to enter and one of the three officials replied that “the truck’s not coming in, we’re shutting it down” (para 41). When Evans moved the Second Truck forward to reverse onto the site, Danalis, Dimitriou and Burke were standing across the vehicle access area to the site such that, had he proceeded, the Second Truck would have collided with them (para 43). Danalis shouted and gesticulated at Evans that he was not to access the site and they were shutting it down (para 43). The officials failed to move when told they were obstructing work from continuing (paras 44–45). Evans had to leave the site and dispose of the contract (paras 46–47). Danalis then informed Thomas that no truck would be allowed to enter the Project Site until more stairs had been erected onto building 8A and the Third Truck departed (para 56). Each of the three officials reasonably suspected that one or more of contraventions of the WHS Act had occurred or were occurring (paras 58) and entered the site in exercise of, or seeking to exercise, his State or Territory OHS right, namely his right to inquire into a suspected contravention of the WHS Act that affected relevant workers at the site (para 59), and was exercising or seeking to exercise his rights under Div 3 of Pt 3-4 of the FW Act (para 60).

251    There were a number of inconsistencies in the Commissioner’s evidence.

252    Thomas’s evidence in chief was as follows:

Both [Danalis] and Dimitriou stood behind the truck ensuring that the truck could not enter the site. [Danalis] was adamant that no truck would enter site until a set of stairs was erected onto building 8A. We had previously advised Maki that this was not a legislative requirement as there was adequate stairs and stretcher access for building 8A to all levels.

At approximately 11.35 AM truck number 10733 [the Second Truck driven by Evans] was turned around by [Danalis] who was positioned with Dimitriou at the rear [of the] truck. There several other trucks waiting to come in, parked on the side of the road. As time went by, the concrete boom was packing up as we believed the actions of the union had prevented us from continuing the pour, one truck was in position, finishing the pour and needed the second truck to come in and refill the hopper with concrete. As a result of the warm weather, a cold joint had formed and we needed to manage a resolution of this issue without having to destroy the whole slab.

At this time, [Danalis] said to the driver of [the Second Truck]: “No, not coming in here”. Dimitriou was standing in the middle of the gate entry which would prevent any vehicles from entering the site. [Danalis] then walked behind Dimitriou and then he had raised his hand and I interpreted the hand gesture to mean stop, the truck is not coming in.

I said, shouting to the truck driver: “No, come in”.

I said, directing my voice to the officials: “You are at serious risk of injury here, you need to move”.

The driver hopped out and moved towards the back of the truck and gave me a look that I interpreted to be confusion.

Whilst the union officials were blocking the truck, I heard Tom tell Shane Martin to call the police.

253    Thomas went on to report on the discussions about various safety issues raised by Danalis.

254    He did not say that Burke was blocking the driveway or did anything at this time to hinder or obstruct him, Evans, McGrath, Murray, or Rees. Under cross-examination he confirmed that Burke was not involved. While he maintained that Danalis and Dimitriou blocked the driveway, he said Burke stood to one side and was not involved in the blockade of the truck.

255    In his evidence in chief, however, Rees said that all three officials stood side by side in the centre of the driveway which is about 3.6 metres wide making it impossible for any vehicle to get past them and were still there when Evans moved his truck in order to reverse into the site. Before Evans readied himself to enter, Rees said he walked over to the officials, who were then standing together in a group in the centre of the driveway looking onto the roadway. He said that he told them they were “restricting and preventing works onsite” and that he told Burke: “From what I gathered from meeting you today you understand what Maki’s actions will cause”. He said Burke replied: “I am from [the] Sydney branch. I have no authority, this is Maki’s region”.

256    The only relevant evidence offered by Martin was this:

A couple of minutes later another concrete truck was about to pull into site, Anthony [Dimitriou] left the group and walked outside the site vehicle access gate onto the roadway where a concrete truck was parked ready to come on site. Anthony spoke to the driver of the concrete truck. I was about 10 metres away from Anthony and the concrete truck waiting to come on site and could not hear what was said.

Colm and Tom then walked to the front vehicle gate following by the group.

Colm or Tom said: “You can’t stop these trucks from coming onto site.”

The other two union officials remained on the site in the centre of the vehicle access road, as if they were preventing vehicles from coming in.

The conversation shifted from the concrete truck accessing the site [to the issue of alternative egress from building 8A].

…

The group remained in the driveway for quite some time during which the scaffolding stairs were relocated to building 8 and this took about 40 minutes from the time I requested it be done: Whilst waiting near the gate the client arrived at the gate. Maki approached our client and had a conversation with them. I could not hear what was said as I was about five metres away talking to one of the committee members.

257    Martin said that the other two union officials remained in the centre of the vehicle access road “as if they were preventing vehicles from coming in”. But he did not say that their presence there in fact prevented Evans or McGrath from entering. In addition, Martin conceded in cross-examination that “the group” in the driveway included both members of the safety committee and one or more of the union officials.

258    Evans did not support the case against either Dimitriou or Burke. His evidence only implicated Danalis. He did not mention seeing any other union official on the driveway at any time he was trying or preparing to enter. According to his evidence, the only person who had called on him not to enter and whose presence on the driveway was blocking him from entering was Danalis.

259    In his statement, Murray said that with the union officials standing in the driveway there was only a metre on either side free and he did not believe any vehicle could get through. But in the immediately preceding paragraph Murray, like Evans, implicated only Danalis. He said:

After the truck left, I observed at least one attempt by Tom to try and get the trucks onto site. The trucks were prevented from entering because the one union official, the official with the goatee was standing behind the rear of the truck that was reversing into the site. The two other officials were standing near the driveway, adjacent to the site shed. The trucks were prevented from entering site because the official with the goatee was standing in the way of the truck with a tall posture and refusing to move. I spoke to the official with the goatee and he said to me in a normal voice: “The concrete trucks not coming in, the jobs done”.

(Emphasis added.)

260    In cross-examination, Murray conceded that he was not “100 per cent sure that there was three” officials standing in the driveway when he requested that they move out of the way to bring in the Second Truck, but, despite what he said in the paragraph quoted above, he was “definite” there were two. To the extent that this evidence differs from what Murray said in his statement, I prefer what he said in the statement. His recollection at the time is much more likely to be reliable.

261    Dimitriou emphatically denied standing across the driveway at any time to block a truck or telling any truck not to enter. He deposed that he was standing around in the vicinity of the driveway for maybe 45 minutes, walking around and talking to people, waiting for the stairs to be built. He said that he never stood in any sort of line with Danalis and Burke and there were a number of people in the area between the driveway and the pump and coming in and out of the site offices and the amenities buildings. He denied seeing Danalis gesturing to a truck not to come in the driveway or yelling at a truck driver not to come in. He also said that Rees had never told him that he was obstructing work from continuing on the site and that he heard no separate conversation Rees may have had with Burke.

262    In cross-examination, Burke testified that Rees said to him, “you’re restricting and preventing the works”, and Thomas said to the group of union officials, “you are at serious risk of injury, you need to move”. He denied that this was because he or the others were standing in the driveway. Rather, his evidence was that he was standing on the footpath having a cigarette when Rees spoke to him. In fact, he deposed that he was “generally standing near the vehicle gates or on the public footpath”. He said that he did not speak to any of the agitator (truck) drivers or see Danalis or Dimitriou talking to any of them. He said that when he saw his colleagues after they had left the pump, they were “hanging around the area between the pump and the gates with other Richard Crookes representatives”.

263    The Commissioner submitted that Rees’s comments make little sense unless Burke or the others were standing in the driveway. Notwithstanding my difficulties with Burke’s demeanour and Dimitriou’s poor recollection, however, I am not satisfied that either of them were. Since the pronoun “you” could just as well apply to Mr Danalis alone, the Commissioner’s submissions do not take his case very far. It is difficult to believe that, if the three officials had been standing side by side across the driveway so as to block the passage of vehicles, neither Evans, who was trying to drive in, nor Murray, whose job it was to control the traffic, would have seen them there. And none of the witnesses gave evidence that they heard either Dimitriou or Burke say anything to anyone about stopping the entry of any vehicle.

264    On balance, I am not persuaded that either Burke or Dimitriou was involved in blocking the entry of the concrete trucks or did anything to prevent or hinder the progress of the concrete pour. Neither am I persuaded that they did anything to assist Danalis in his attempt to block the entry of vehicles and stop the concrete pour.

265    It follows that the allegations in paras 85–90 of the amended statement of claim must be dismissed.

266    That leaves the alternative allegations of accessorial liability.

The claims against them as accessories

267    The Commissioner pleaded that Dimitriou and Burke aided and abetted and/or were directly or indirectly knowingly concerned in, or party to, each of the contraventions of s 500 by Danalis constituting the second series of contraventions pleaded against him, namely, those concerning and arising out of the steps taken to prevent Evans and McGrath from proceeding with the delivery of concrete for the pour of the concrete slab on level 1 of building 8A.

268    In his written submissions, however, the Commissioner submitted that each of Dimitriou and Burke aided and abetted, or was knowingly concerned in or party to, both the first and second series of contraventions by Danalis. To the extent that the Commissioner’s submission strayed beyond his pleading, it should not be entertained. Once again, leave was never sought to amend the pleading in this way, let alone granted. The Commissioner should be limited to his pleaded case.

269    Accessorial liability is covered by s 550, which treats involvement in a contravention in the same way as a contravention. It provides:

(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.

270    The relevant principles for establishing that a person aided or abetted, or was knowingly concerned in or party to, a contravention are well-established. The principles are taken from the criminal law and largely derive from the High Court’s judgments in Giorgianni v The Queen (1985) 156 CLR 473 and Yorke v Lucas (1985) 158 CLR 661. They may be shortly stated without reference to the authorities from which they are drawn.

271    First, in order to aid, abet, counsel or procure or to be knowingly concerned in, or a party to, a contravention, the person must intentionally participate in the contravention with knowledge of the essential matters constituting the contravention. But it is unnecessary that the person knows that the conduct in question is unlawful.

272    Second, to be knowingly concerned in a contravention the person must have engaged in some act or conduct which implicates or involves the person in the contravention so as show a practical connection between the person and the contravention.

273    Third, in either case, actual (rather than imputed) knowledge is required. Actual knowledge may be inferred from exposure to the obvious.

274    The pleaded case against Dimitriou is that:

(1)    He knew of the matters pleaded in paras 3, 27–48, 59 and 60.

(2)    On the basis of his conduct pleaded at paras 40–48 and the above knowledge, he aided and abetted and/or was knowingly concerned in or party to each of the second series of the Danalis contraventions.

275    The pleaded case against Burke is identical.

276    This alternative case must also be dismissed for it relies on Dimitriou and Burke standing across the vehicle access area with Danalis so as to prevent Evans from driving the Second Truck into the project site, matters on which the Commissioner’s own witnesses gave inconsistent evidence and which I have not found to have been proved. Moreover, there is insufficient evidence to establish that at any time Dimitriou or Burke said words to the effect that “The truck’s not coming in, we’re shutting it down”, as pleaded in para 41. Even if, contrary to their own evidence, Dimitriou and Burke had heard Danalis making those statements, without more that would not make them accessories to his conduct. Knowledge of what he was saying or doing is not enough. As the NSW Court of Criminal Appeal observed in R v Tannous (1987) 10 NSWLR 303 at 308, a person cannot become criminally involved in an act made unlawful by mere knowledge or inaction on his part; some act or conduct on his part is necessary. The position is no different in the case of a contravention of a civil penalty provision.

28 November 2018

The allegations

277    The allegations against Danalis and Dimitriou were identical. Each was alleged (in paras 136-139 of the amended statement of claim) to have contravened s 500 by:

(1)    intentionally hindering or obstructing another person by preventing each of Crookes, Thomas and the project workers from performing work scheduled to take place on the site that day; or

(2)    acting in an improper manner in respect of each or all of Crookes, Thomas and the project workers.

278    The conduct upon which the Commissioner relied for each of the alternative allegations was as follows.

279    First, Thomas informed Danalis and Dimitriou that if they could not satisfy him as to their identities they were not allowed on the site, and that they had not followed procedure and had not signed in to the site. Danalis replied: “I don’t care that I haven’t followed procedure, I’ve got boys working in the rain”. Thomas then took Danalis and Dimitriou to the site office where they signed the site attendance and emergency roll.

280    Second, after Danalis asked that he and Dimitriou be permitted to enter the area of the site where the construction work was performed, they refused to agree to Thomas’s request that they first undertake a visitors’ induction, although they were told it was an occupational health and safety requirement which applied to all visitors.

281    Third, Danalis and Dimitriou left the site office and entered the site regardless, in defiance of Thomas who had told them that, if they did enter the site they would be in breach of their permits and trespassing and that he would call the police and have them escorted from the site.

282    Fourth, Danalis and Dimitriou went to building 8A and told the workers who were there to pack up and leave the site;

283    Fifth, a number of the workers did as they were told but were intercepted by Thomas as they were leaving; Thomas instructed the workers to go for a “smoko” and not to take direction from Danalis and Dimitriou.

284    The allegations, concerning the conduct of the union officials were largely based on the evidence of Thomas with some support from Martin and Murray. It was common ground that it was raining heavily that day.

The scope of the dispute

285    The union officials submitted that there was “no proper evidentiary basis” for the allegation that either of them prevented anyone from performing work on that day or acted improperly. They argued that the evidence upon which the Commissioner relied was “at best an assumption based on hearsay” and that the reason work was not performed that day was because it was raining so heavily that Crookes shut the site.

Did Danalis and Dimitriou intentionally hinder or obstruct Crookes, Thomas and the project workers as alleged?

286    This is the principal allegation made against Danalis in para 136 of the amended statement of claim and against Dimitriou in para 138.

287    Insofar as it is relevant to this allegation, Thomas’s evidence was as follows.

288    He was telephoned at 12.30 pm that day by Gary Brownlee, one of the construction foremen, and informed that “the CFMEU were on site”. Thomas made his way towards the site office but came across the two officials at the first aid shed. He was unsure how they entered the site. He asked them: “What’s wrong now”. Danalis told them there were “boys working in the rain”. Thomas said they were not, they were working under cover and when they started working there was no rain. There followed the conversation about the permits to which I referred above at [94]. Danalis told him he did not care that he had not followed procedure; there were “boys working in the rain” and pointed to the driveway, saying there was “a guy working on a truck in the rain”.

289    There was a dispute about the terms of the initial conversation, but nothing really turns on it. Moreover, it is likely that the memories of all three men were affected both by the subsequent events, their emotions, and the passage of time. At this point, no one was taking notes.

290    A brief discussion ensued, after which the men walked over to the site office. Thomas handed them a copy of the “Guide to Workplace Right of Entry”, a publication of WorkSafe NSW, and pointed to a number of requirements for entry. Danalis then identified “safe access and egress” as an additional reason for entry. Thomas asked them to enter the site office and sign on to the site attendance and emergency roll, which they did.

291    Thomas then said: “Now before we go for a walk, please put on your glasses”. Danalis asked to enter the site. Thomas said they could not do so unless they wore appropriate PPE. Danalis asked for safety glasses. Thomas replied that was a matter for their employer but he could give him a pair for $200. He then asked Martin whether there was a visitors’ induction they could give the officials. At this point Danalis walked off unescorted onto the project site and Thomas told him that if they entered the site they would “once again” be in breach of their permits and trespassing. He threatened to call the police and have them escorted from the site. Danalis ignored him and walked away towards the site. Thomas telephoned the police and instructed “Matt” to secure the site. “Matt” closed all access to the site. “Matt” was never identified. Under cross-examination Thomas admitted that both the pedestrian and the “big truck gate” were locked.

292    After about 20 minutes, Thomas was told that Danalis and Dimitriou were ushering workers off site. Thomas approached them and instructed the workers not to take any direction from the union officials, adding that they were trespassing and that the police had been called.

293    Martin’s evidence was inconsistent in a number of respects with the evidence of both Thomas and Danalis.

294    Martin claimed to have seen Danalis and “Anthony” (presumably Dimitriou) near the lunch shed at about 8.30 am, some four hours before Thomas said he was alerted to their presence by Gary Brownlee.

295    Martin said he greeted them when he saw them and Danalis replied: “Yeah good. Where’s Colm?” Martin said he answered “I think he’s in the site office” and escorted the two men to the site office. He said Thomas was not there so he called him and asked him to come to the site office. He said they waited for Thomas there and Thomas arrived a few minutes later. Thomas then asked: “What are you here for?” Danalis replied: “We’ve had a phone call that you have guys working in the rain”. Thomas denied that they did. Danalis said they wanted to go for a walk, which Martin understood to be a safety walk whereupon Thomas said he needed to see their right of entry permits. Martin said he was not sure if the officials showed Thomas their permits and then proceeded to give an account of a conversation between Thomas and Danalis which is broadly consistent with their accounts.

296    Murray claimed that he saw Danalis and Dimitriou at about noon as they approached him and some other workers near the first aid office. One of the two, who I infer from his description was Danalis, asked them whether they were being made to work in the rain. Murray replied that Thomas had told them to get out of the rain. His evidence was that he left the site because the rain did not stop and they cancelled all the deliveries and did not allow any vehicles onto the site. The inference from his evidence was that the “big truck gate” was locked for this purpose. At the time he left he maintained that the pedestrian gate was open. The basis for the submission that work was halted that day was the following exchange in cross-examination:

[MR LATHAM] So, in fact, the rain was so heavy that Richard Crookes basically closed the site and told people to go?---Yes. Towards the end, yes.

I see?---Not – unless, like, if you’re working inside, you can, like, still work. But, if your duties are outside and if the rains affecting your work, you may as well just pack up and go home for the day.

And, that’s what you did and that’s what a number of the other workers did?---Yes, that’s correct.

297    Danalis deposed that it was raining “quite heavily” that day and he and Dimitriou decided to return to the site because rain affects the safety of workers on a large open site such as the project site. He said, and the photographic evidence confirms, that the site was “primarily dirt”, which turned to mud whenever it rained. He added that there are always electrical hazards in the rain where power tools are used and they had already noticed electrical hazards on their inspection the previous day. None of this evidence was challenged.

298    Danalis said that the first thing he saw when he arrived at the site was a worker standing on the bed of a flat top truck without any kind of harness or handrail, working in the rain. Under cross-examination Thomas admitted that there was a man standing on a truck working in the rain.

299    Danalis deposed that they ran into Thomas on their way to the site office and told them that they wanted to do a safety inspection because people were working in the rain. He said that Thomas started yelling at him, saying: “You guys fucked up yesterday, I’ve got you now Maki”. Danalis asked him what he meant and he replied: “You fucked up yesterday, you’re not coming on site”. Danalis insisted they were going on site, offered their permits, told him they wanted to talk to the workers about working in the rain, and indicated that he did not expect they would be long. At that point he said they presented their permits. Thomas refused to allow them on site, telling them he did not know who they were, they did not have the right PPE, and refused to lend him safety glasses when he requested them.

300    Danalis deposed that this was the first of the 20 or so occasions on which he had attended the site upon which he had been asked to do an induction. He said that they were not going to be there for very long and did not want to do one. He deposed that he asked Thomas whether he or someone else could escort them but Thomas refused and he and Dimitriou then left the site office and walked around the site. Danalis’s account of what happened next differs significantly from the version of events pressed upon the Court by the Commissioner. He said:

There were not many workers left on site at this stage, as the rain was quite heavy. We went over to groups of workers that we saw. I recall stating to some of these groups of workers that they did not need to work in the rain if it was unsafe, and that they had an inclement weather clause in their award and enterprise agreement, and they were entitled to go and sit in the lunchroom. I never told any worker that they could leave the site. Some workers left to walk towards the amenities, some others kept on working.

301    This evidence was corroborated by Dimitriou. While Dimitriou confessed to not remembering specific conversations, he did remember them asking some groups of workers whether they were required to work in the rain. He went on to say:

We advised at least one group that they were entitled to go and sit in the amenities shed if it was unsafe to keep working. I deny telling anyone that they should pack up and leave the site.

302    Dimitriou also denied that he approached groups of workers suggesting that they pack up and leave the site or that he encouraged workers to stop what they were doing. Like Danalis, he told the Court that he said to the workers if they did not think it was safe to be working in the rain they were entitled to sit in the sheds. He denied approaching anyone who was working under cover.

303    In cross-examination and submissions Mr Latham made much of the fact that the officials could have entered the site without undergoing an induction if they were accompanied by someone from Crookes. This was the effect, not only of Danalis’s evidence, but also of evidence elicited from Martin in cross-examination. But there was no dispute that Danalis and Dimitriou left the site office unaccompanied and having refused to undergo an induction. Nor was it disputed that Thomas had insisted on an induction. For present purposes at least, whether an induction was necessary or whether it was a spiteful or provocative act on Thomas’s part to require an induction, as the union officials’ submissions intimated, especially since they had attended the site the previous day, is beside the point. Thomas was within his rights to do so. Unless Danalis and Dimitriou were escorted around the site, it was common ground that they were not within their rights to refuse to undergo an induction.

304    Further, there is no doubt that Danalis and Dimitriou had no authority to direct the workers to stop work or leave the site.

305    That said, the evidence upon which the Commissioner relied concerning the interactions of Danalis and Dimitiriou with the project workers was indirect. No evidence was adduced from any of the workers who were said to have been ushered off site by the union officials. One would expect them to have been called by the Commissioner since they were material witnesses in his case. Yet, the Commissioner offered no explanation for their absence. In these circumstances, the Court may infer that nothing any of those workers could have said would have assisted the Commissioner’s case: Jones v Dunkel (1959) 101 CLR 298.

306    The evidence the Commissioner led on the subject came from Martin and Murray. It was most unsatisfactory.

307    Martin said he saw a few subcontractors leaving the site with their tool bags and power tools and Thomas asked them where they were going. One of the workers replied: “They told us to pack up and leave the site”. Martin assumed that “they” was a reference to the union officials. On Martin’s account Thomas did, too, because, according to Martin, Thomas then told the workers: “They can’t tell you to leave”. But Thomas gave no account of any such conversation. His evidence was that “Matt” told him that Danalis and Dimitriou were at the site amenities ushering workers off site and that he instructed the workers not to take any direction from them. “Matt” did not give evidence and his absence was also unexplained.

308    But Murray said in his statement that he had been informed by one of the plaster boarders that “the officials” had told them to pack up.

309    The hearsay rule precludes the admission into evidence of a previous representation to prove the truth of the asserted facts: Evidence Act 1995 (Cth), s 59(1). The rule does not apply, however, if the evidence is admitted because it is relevant for another purpose: Evidence Act, s 60. Presumably this was the reason no objection was taken to Murray’s evidence. At the same time, no direction was sought limiting the use of the evidence to a non-hearsay purpose. In the absence of such a direction, the evidence may be used for all relevant purposes: Welsh v R (1996) 90 A Crim R 364 at 369 (Hunt CJ at CL, Newman J and Bell AJ agreeing at 375). Even so, the weight that should be accorded to the evidence is another matter. Evidence can be unreliable and the reliability of hearsay evidence cannot be tested through cross-examination of the person who made the representation. As the High Court observed in Lee v The Queen (1998) 195 CLR 594 at [32], “[o]ne very important reason why the common law set its face against hearsay evidence was because otherwise the party against whom the evidence was led could not cross-examine the maker of the statement”. Second-hand hearsay is notoriously unreliable. The Australian Law Reform Commission remarked that “secondhand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility”: Evidence (Interim), (Report No 26, ALRC, 1985), vol 1 at [678]. In the absence of evidence from at least one person who was supposedly told by the union officials to “pack up” and leave, the Court cannot know whether, in relation to the evidence given by Murray, the plaster boarder was reporting something the union officials said or something he or she had heard directly or indirectly from someone else. Besides, the statement attributed to the plaster boarder was not given in direct speech. What the plaster boarder actually said is unknown. For all we know, the plaster boarder may have misinterpreted what he heard. After all, the only evidence Murray gave of what Danalis said to workers in his presence was consistent with Danalis’s account.

310    In all the circumstances, the evidence of what the plaster boarder said should be given little weight. No weight should be given to the account Martin gave of what a worker said to Thomas, especially when Thomas himself gave no such evidence. Certainly none of this evidence should be preferred to the sworn evidence of the union officials.

311    On the other hand, Danalis’s own evidence indicates that, as a result of his advice to the workers, some of them stopped work and walked over to the amenities room. Even so, there is no evidence to indicate whether they reached the amenities room before Thomas spoke to them or, if they did how long they stayed there. Having regard to the inclement weather, Thomas’s instructions to the workers to ignore what the union officials told them, and the lack of evidence concerning the time, if any, the workers spent in the amenities room, it is not apparent whether anything Danalis said to the workers had any, let alone any appreciable, effect on the work program. Nor is it apparent from Danalis’s own evidence that he or Danalis prevented the project workers from working. The evidence is at least equivocal as to whether the rain alone had that effect. Furthermore, the Commissioner did not suggest to Danalis or submit to the Court that the advice Danalis said he had given the workers did not accurately reflect the terms of the award and the enterprise agreement. On this evidence all Danalis did, with the apparent concurrence of Dimitriou, was to advise the workers of their rights.

312    For all these reasons, while the actions the union officials took were deliberate, I am not persuaded that either Danalis or Dimitriou contravened s 500 by intentionally hindering or obstructing Crookes, Thomas, or the project workers as alleged.

Did Danalis and Dimitriou otherwise act in an improper manner as alleged?

313    Even if I were wrong in the conclusions I have reached concerning the principal alleged contraventions of s 500, for the reasons given above at [170]–[173] the allegations that Danalis and Dimitriou acted in an improper manner in contravention of s 500 because they intentionally hindered or obstructed Crookes, Thomas and the project workers must be dismissed.

314    The remaining allegations are that Danalis and Dimitriou acted in an improper manner because they:

(1)    entered the site without producing to Thomas their entry permits when requested to do so;

(2)    failed to follow procedure and sign into the site;

(3)    refused to undertake a visitors’ induction; and

(4)    entered the site and spoke to workers when they had not undertaken an induction and when they were unaccompanied.

315    As to the first matter, I have already decided that I am not satisfied that either Danalis or Dimitriou failed to produce their entry permits on request.

316    As to the second, it is common ground that both men signed the site attendance and emergency roll. The Commissioner’s case is that they entered the site without first signing on. Danalis’s evidence is that they were on their way to the site office when they were intercepted by Thomas. Dimitriou testified that they walked straight to the site office when they arrived and met Thomas there. Those two accounts are irreconcilable.

317    I consider that Dimitriou was mistaken and I am not persuaded that Danalis’s account was false. After all, they presented themselves at the site office the day before. There was no suggestion that on the numerous occasions when they had previously attended the site they had not attended the site office first. The evidence does not disclose how long they had been on the site before Thomas intercepted them. Thomas said that Brownlee alerted him to their presence at about 12.30 pm. Murray said he saw them around noon. It is true that Martin said he saw them at about 8.30 am but on Martin’s account, they went directly to the site office after he saw them. Martin’s evidence appears to be unreliable on both counts. Whatever time the officials arrived at the site, the weight of the evidence does not indicate that they were walking around the site for four hours. To the contrary, it indicates that they were there a relatively short time before they were met by Thomas. Danalis deposed that they ran into Thomas “not long” after entering the site. The site map that was annexed to Thomas’s statement indicates that the site office was not directly accessible from the street. Rather, visitors had to enter the site in order to reach it. No evidence was adduced from Gary Brownlee, the construction foreman who informed Thomas that “the CFMEU were on site”.

318    In these circumstances, I am not satisfied that Danalis and Dimitriou failed to follow procedures. They had to get to the site office before they could sign on.

319    For the following reasons, however, I am satisfied of the third and fourth matters. To this extent, Danalis and Dimitriou did act in an improper manner and therefore contravened s 500 of the FW Act.

320    It will be recalled that s 128 of the WHS Act prohibits a WHS entry permit holder from exercising a right of entry to a workplace unless he or she complies with any reasonable request by the person conducting the business or undertaking or the person with management or control of the workplace to comply with any work health and safety requirement that applies to the workplace and any other legislated requirement applying to the type of workplace. The fact that the officials had not previously been required to undertake an induction does not mean that it was unreasonable for Thomas to ask them to do so on 28 November 2018. It was not put to him in cross-examination that he only did so out of spite. In any event the prevailing conditions at the site were not always the same and it is common ground that they were different that day than they were the day before. Indeed, the very concerns the union officials had about the safety risks of working in the rain supports the conclusion that the request was reasonable.

321    In cross-examination Dimitriou accepted that, when asked by an occupier to undertake a site induction he was obliged to comply. He considered Thomas’s request “strange” based on his previous experience but conceded that that was no reason to reject the request.

322    While Danalis insisted that he did not consider his refusal to undergo an induction and to enter the site unaccompanied was inappropriate, on reflection he frankly conceded that it was. He testified:

I think I would have approached the entire issue differently. I understand that there’s a requirement to – you know, that you should do an induction and that it’s for the safety of everybody on site. I’m not disputing that. The real issue at this, you know, time was whether it was raised in good faith. I don’t consider that it was. Having said that, those were very particular events. I had never been asked before to do an induction on a building site. I had been asked at a very complicated, you know, electrical site, for example, a BHP or something. So, these were very unique circumstances, and in those circumstances, I found it extraordinary, and for those reasons I didn’t consider that it was reasonable, but – yes, it’s a complicated issue, frankly.

323    These matters certainly explain the conduct of the union officials. Moreover, I accept that the union officials felt at the time that Thomas was behaving unreasonably. As I indicated earlier, they may be relevant mitigating factors on penalty. But they do not make the officials’ conduct appropriate or proper. The official’s subjective assessment of Thomas’s behaviour is not relevant. The test is an objective one. Applying that test the Commissioner has made out his case. Their conduct was a breach of the standards of conduct that would be expected of a union official by reasonable persons with knowledge of their duties, powers and authority and the circumstances of the case. Conduct of a similar nature was held to be acting in an improper manner in contravention of s 500 in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 at [174] (White J).

The alleged contravention of section 503 of the FW Act

324    This alleged contravention relates to the events on 27 November 2018.

The law

325    Section 503 reads:

(1)    A person must not take action:

(a)    with the intention of giving the impression; or

(b)    reckless as to whether the impression is given;

that the doing of a thing is authorised by this Part if it is not so authorised.

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

(2)    Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

326    Section 503 appears in Pt 3-4 of the FW Act, which includes the rights of holders of WHS permits to enter premises. One of the things not authorised by Pt 3-4 is a permit holder, who is exercising or seeking to exercise rights, intentionally hindering or obstructing a person or otherwise acting in an improper manner contrary to s 500.

327    The Explanatory Memorandum to the FW Bill provides an example of conduct covered by what became s 503 at [2001]:

An example of behaviour that this clause would cover is where a person represents himself or herself as a permit holder when she or he does not hold a valid entry permit. Other examples would include where a person asserts she or he is entitled to represent particular employees when the union’s eligibility rules do not extend to that class of employees, or where an employer asserts to employees that the union is not allowed to talk to them when it can.

328    In Australian Building and Construction Commissioner v Gava [2018] FCA 1480 at [17]–[33] White J explained the context, purpose and meaning of s 503. His Honour pointed out at [27] that s 503 was part of a “scheme of balancing of interests in relation to rights of entry” and “reflects a legislative concern that the scheme of rights established by Pt 3-4 [in which it appears] and the clothing of persons with the ability to exercise those rights should not be used as a guise for conduct which the Part does not authorise”. He observed at [28] that s 503(1) has three principal elements, the first and third of which are determined objectively. Those elements are:

(1)    a person takes action;

(2)    in taking the action the person intends to give the impression that the doing of a thing is authorised by Pt 3-4 or is reckless as to whether that impression is given; and

(3)    the doing of the thing is not authorised by Pt 3-4.

329    The action may include oral and written communications (see [29]). The thing may be different from the action (at [30]).

330    As his Honour explained at [28], the second element requires proof of the person’s state of mind in taking the action and will be “a matter of inference from the surrounding circumstances”, including the person’s words and actions.

331    It is unnecessary that the impression is actually created. As his Honour put it at [31]:

It is not necessary that the action taken with the intention of giving a misleading impression, or with recklessness as to whether that impression be given, succeeds in doing so. The proscription in s 503 does not turn on the effect produced by the action, but on the state of mind with which the action is taken.

332    For the purposes of s 503(1)(b), a person will be reckless as to whether an impression is given that something is authorised if, in the circumstances known to them at the time they took the action, they could reasonably be expected to have foreseen that their action would give the impression that doing the thing was authorised by Pt 3-4: Qanstruct at [153].

The allegations

333    In this case the Commissioner alleged that:

On the basis of the matters pleaded at paragraphs 33, 36, 40, 51, 52 and 54, Danalis contravened section 503 of the FW Act on 27 November 2018 at the Project Site by taking action:

a.    with the intention of the giving the impression; or

b.    being reckless as to whether the impression was given,

that he, Dimitriou and Burke were authorised by Part 3-4 of the FW Act:

c.    to stop the concrete pour on level one of building 8A;

d.    to stop the concrete trucks from entering the Project Site;

e.    to shut down the Project Site;

f.    to determine whether or not the Project Site, or a part of it, was safe,

when they were not so authorised.

334    The matters pleaded at paras 33, 36–40, 51, 52 and 54 were that:

(1)    Danalis told the driver of the First Truck not to put concrete into the hopper ([33], [36]);

(2)    after stopping the First Truck, Danalis stood in the middle of the entry driveway and in front of the Second Truck, waving his hands and shouting at Evans not to bring his concrete truck onto the project site ([40]);

(3)    Danalis told McMurray that the project site was unsafe and he was (or they were) shutting it down for safety reasons, namely issues with the concrete pump and access to building 8A ([51]);

(4)    Danalis told McMurray and Thomas that the union officials would determine what was safe ([52]), [54]).

The issues

335    Having regard to the allegations made in the amended statement of claim, the factual issues are whether:

(1)    Danalis told the driver of the First Truck not to put concrete in the pump hopper ([33]);

(2)    after the driver of the First Truck had confirmed to him that the pump set up had no issues, Danalis told the driver not to put more concrete into the pump hopper ([36]);

(3)    Danalis stood in the entry driveway to the project site waving his hands at Evans, the driver of the Second Truck, and told him not to enter the site ([40]);

(4)    Danalis told McMurray that he (Danalis) was shutting down the site for safety reasons ([51]);

(5)    Danalis told McMurray and Rees that he “[did] not give a fuck what the Geotech report said”; he and the other union officials would decide if the site was safe and what the safety requirements were ([54]);

(6)    by taking the above action and by telling McMurray that there were issues with the concrete pump and access to building 8A and the site was unsafe, Danalis acted with the intention of giving the impression or was reckless as to whether he gave the impression that the union officials were authorised by Pt 3-4 of the FW Act to stop the concrete pour, stop the concrete trucks from entering the project site, shut the site down, or determine whether it was safe; and

(7)    if so, whether Danalis was authorised to do those things.

336    In closing submissions Mr Latham contended that s 503 only applies to misrepresentations about things actually authorised by Pt 3-4 and, as Danalis’s representations about, for instance, being able to close the site due to safety issues were not things authorised by Pt 3-4, s 503 could not apply.

337    The contention was misconceived. “Authorised” in s 503 refers to the doing of an act or thing authorised by Pt 3-4, including Divisions 2, 3 and 4: Bragdon at [107] (Flick). Section 500, which is contained in Div 4, prohibits a permit holder who is seeking to exercise rights in Pt 3-4 from intentionally hindering or obstructing any person or otherwise acting improperly. If a permit holder enters premises seeking to exercise a right of entry, and that person intentionally hinders or obstructs any person or otherwise acts in an improper manner within the meaning of s 500, representing that they are so authorised, they would contravene s 503. As the Commissioner submitted, s 503 does not apply to representations concerning actions that are actually authorised by Pt 3-4, but to representations that their actions are authorised by Pt 3-4 when they are not.

Did Danalis contravene s 503 as alleged?

338    With respect to issues (1) and (2), which concern Danalis’s statements to the driver of the First Truck, Thomas did not mention in his affidavit (or the statement he made to the Commissioner annexed to it) of Danalis telling the driver of the First Truck to stop putting concrete into the hopper. In cross-examination he said he did not see him in the vicinity of any driver. Paradoxically, however, he also said that he could recall him telling “the guy” that “this concrete is poured” or “this concrete is stopped”.

339    Rees appears to have been the source of the allegations. His evidence on the subject is summarised above at [155]–[157].

340    Danalis admitted to having a conversation with the driver about not putting concrete in the hopper but said that he asked him; he did not tell him. Rees’s impressions about the driver sit uncomfortably with Danalis’s account.

341    There was no real dispute about issue (3).

342    Evans’ account was that while he was sitting in his truck waiting for the First Truck to leave, he saw a man he now knows to be a union official “standing in the middle of the entrance driveway waving his hands and yelling ‘you’re not going anywhere, stay where you are’”. He said he knew he was being directed not to come in as the union official was looking straight at him, “yelling in an assertive tone, loud enough for [him] to hear over the noise of the truck”. He was unable to drive into the site without hitting the official.

343    Soon afterwards he noticed the traffic controller who had initially told him to park at the entrance walk over to the union official and have a conversation with him. While Evans did not recall exactly what he said, he did recall the union official saying words to the effect of “he’s not coming in”.

344    McMurray’s evidence was that a union official to whom he had been speaking earlier had signalled to the truck driver to turn off his engine and said: “You are not accessing the site. We are shutting down the site”.

345    There is no doubt that the union official to whom Evans was referring was Danalis.

346    Danalis admitted to yelling out to the driver of the Second Truck (Evans) to stop his truck and to gesturing to him to do so.

347    As for issues (4) and (5), McMurray’s evidence is set out at [225]–[227].

348    McMurray was unshaken in cross-examination. While it seems that he was on friendly terms with the Crookes officers, it was not suggested, let alone proved, that his evidence was influenced by that relationship, that he set out to assist the Commissioner’s case, or that he had any animus towards the Union. I accept that McMurray was mistaken about the number of union officials on site (he said four or five when there were only three). But I am persuaded that, whatever Danalis said to him, he gave him the clear impression that the union officials were shutting down the site until they were satisfied it was safe and that they would decide what was safe. It is more likely than not that Danalis said words to that effect.

349    Issue (6) — Danalis’s intention — was the only matter addressed in the submissions for him. Mr Latham submitted that the Commissioner could not prove that Danalis ever intended to give such an impression or was reckless as to whether he did, that the officials had every right to conclude or ascertain that the site was unsafe, and that there is no evidence that they ever finally determined that it was unsafe or should be closed.

350    The submission must be rejected.

351    While, as the Commissioner acknowledged, there was no direct evidence that Danalis acted as he did with the intention of giving a false impression of his authority, the absence of an express assertion is not determinative. Intention may be inferred from the surrounding circumstances, including the actions and words of the alleged contravener: Gava at [28].

352    The Commissioner submitted that the requisite intention could be inferred from Danalis’s threats to block the concrete trucks and stop the concrete pour and from the following actions: instructing the driver of the First Truck not to put any more concrete in the hopper; standing in the middle of the driveway thereby obstructing access to the site by the Second and Third Trucks; shouting at Evans that the pour was cancelled, gesturing to him to stop, telling him he was not to access the site and that “they” were shutting it down; telling McMurray that the site was unsafe and that he was shutting it down for safety reasons; and telling McMurray and Thomas that the union officials would determine what was safe. By those statements and actions, the Commissioner submitted that Danalis intended to give, or was reckless as to whether or not he gave, the impression to McMurray, the concrete truck drivers, and the representatives of Crookes that he and the other two union officials were authorised by Pt 3-4 to:

    stop the concrete pour on level one of building 8A;

    to stop the concrete trucks from entering the site;

    to shut down the site; and

    to determine whether or not the site, or part of it, was safe.

353    Danalis denied that it was his primary purpose to stop the concrete pour. He also denied that it was his purpose to show that the Union had the power to do so. He insisted that he had merely asked the driver not to put concrete into the hopper and did not direct him. Nevertheless he admitted to reaching up to press the emergency stop button on the agitator of the First Truck and to understanding that this button stops the barrel from spinning and “potentially” the concrete from pouring out. He also admitted that his purpose was to stop the pour. Danalis claimed that he only did this so that he could speak to Rees in a quieter environment. But as I observed earlier, at [165], that is difficult to accept.