Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992

ORDERS

THE COURT DECLARES THAT:

1.    Richard Crookes Constructions Pty Limited contravened s 501 of the Fair Work Act 2009 (Cth) on 26 May 2020 by its employees, Mr Chris Diversi and Mr Peter Yamin, after consulting with Mr Cameron Waller and being in the company of another employee Mr Nicholas Ryan, unduly delaying entry to Mr Jesse Strand, the holder of an entry permit under the Fair Work Act and the Work Health and Safety Act 2011 (NSW), to a building site at 79 Macquarie Street in Sydney in the State of New South Wales (Opera Quays site) for a period of no more than 60 minutes, in circumstances where Mr Strand had a right to enter the site under s 117 of the Safety Act to investigate suspected contraventions of the Safety Act and was entitled to enter the site in accordance with Pt 3-4 of the Fair Work Act (the first contravention).

2.    Crookes contravened s 501 of the Fair Work Act on 27 July 2020 by its employees, Mr Hayden Cooper and Mr Yamin, after consulting with Mr Waller, refusing entry to the Opera Quays site to Mr Strand and Mr Blake Kirby, who were holders of entry permits under the Fair Work Act and the Safety Act, in circumstances where Mr Strand and Mr Kirby had a right to enter the site under s 117 of the Safety Act to investigate suspected contraventions of the Safety Act and were entitled to enter the site in accordance with Pt 3-4 of the Fair Work Act (the second contravention)

3.    Crookes contravened s 501 of the Fair Work Act on 28 July 2020 by its employee, Mr Yamin, being in the company of another employee, Mr Cooper, refusing entry to the Opera Quays site to Mr Strand and Mr Adrian Carroll, who were holders of entry permits under the Fair Work Act and the Safety Act, in circumstances where Mr Strand and Mr Carroll had a right to enter the site under s 117 of the Safety Act to investigate suspected contraventions of the Safety Act and were entitled to enter the site in accordance with Pt 3-4 of the Fair Work Act (the third contravention).

4.    Crookes contravened s 502(1) of the Fair Work Act on 11 November 2020 by its employee, Mr Bill Stavrinos, intentionally hindering or obstructing Mr Strand and Mr Carroll, who were holders of entry permits issued under the Fair Work Act and the Safety Act, exercising rights in accordance with Pt 3-4 of the Fair Work Act at a building site located at 2-10 Loftus Lane in Sydney in the State of New South Wales (Loftus Lane site) by delaying Mr Strand and Mr Carroll’s exercise of rights for a period of no more than two and a half hours by requiring police to attend the Loftus Lane site and by asserting that Mr Strand and Mr Carroll were trespassing (the fourth contravention).

5.    Crookes contravened s 501 of the Fair Work Act on 12 November 2020 by its employee, Mr Frank Crino, refusing entry to the Loftus Lane site to Mr Strand and Mr Carroll, who were holders of entry permits issued under the Fair Work Act and the Safety Act, in circumstances where Mr Strand and Mr Carroll had a right to enter the site under s 117 of the Safety Act to enter to investigate suspected contraventions of the Safety Act and were entitled to enter the site in accordance with Pt 3-4 of the Fair Work Act (the fifth contravention).

THE COURT ORDERS THAT:

1.    Crookes pay a pecuniary penalty of $25,000 in respect of the first contravention.

2.    Crookes pay a pecuniary penalty of $40,000 in respect of the second contravention.

3.    Crookes pay a pecuniary penalty of $45,000 in respect of the third contravention.

4.    Crookes pay a pecuniary penalty of $30,000 in respect of the fourth contravention.

5.    Crookes pay a pecuniary penalty of $50,000 in respect of the fifth contravention.

6.    The pecuniary penalties payable by Crookes be paid to the applicant, the Construction, Forestry, Maritime, Mining and Energy Union.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    During 2020, Richard Crookes Constructions Pty Limited was the builder and lead contractor responsible for two major building contracts in Sydney: the construction of a multi-story building, luxury apartment complex at a site on Macquarie Street near the Opera House (the Opera Quays site) and the construction of three new commercial and residential buildings and the refurbishment of two heritage buildings on a site on Loftus Lane in the central business district of Sydney (the Loftus Lane site). Numerous building and construction workers and subcontractors were employed and engaged to work on those two building sites. Some of those workers were members of, or were otherwise represented by, a well-known trade union, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).

2    One of the core functions of the CFMMEU was the protection of the safety of workers on building sites, particularly sites on which high-risk construction work was to be performed. Both the Opera Quays site and the Loftus Lane site were high-risk sites. Officers of the CFMMEU were issued with permits pursuant to both New South Wales and Commonwealth statutory schemes which gave them a right to enter premises, including building sites, for the purpose of inquiring into contraventions of work health and safety laws that they reasonably suspected had been or were occurring on the site. The statutory right that permit holders have to enter premises in those circumstances is self-evidently an important tool that union officers have to ensure safe workplaces. It is a right that should be respected by all occupiers of worksites, particularly worksites where high-risk construction work is performed. That is reflected in the fact that persons who are found to have refused or unduly delayed entry onto premises by a permit holder, or to have intentionally hindered or obstructed a permit holder exercising their rights, are liable to pay potentially substantial pecuniary penalties.

3    On one occasion in May 2020, and two occasions in July 2020, senior employees of Crookes refused entry to, or unduly delayed entry to, the Opera Quays site by officers of the CFMMEU who, as permit holders, were entitled to enter that site for the purpose of inquiring into contraventions of work health and safety laws that they reasonably suspected had been or were occurring on the site. In November 2020, a senior employee of Crookes refused entry to the Loftus Lane site by CFMMEU officers who, as permit holders, were entitled to enter that site to inquire into suspected contraventions. Also in November 2020, another senior employee of Crookes intentionally hindered or obstructed officers of the CFMMEU who were exercising their rights, as permit holders, at the Loftus Lane site.

4    Crookes ultimately did not dispute that, through the actions of its senior employees on the two building sites in question, it had contravened civil remedy provisions relating to rights of entry to premises and was therefore liable to pay pecuniary penalties in respect of those contraventions. The principal issue for determination in the proceedings concerned the appropriate penalties to impose on Crookes in respect of the admitted contraventions. The resolution of that issue was somewhat complicated by the fact that the parties were at loggerheads in respect of the relevant facts and circumstances surrounding the contraventions.

RELEVANT STATUTORY PROVISIONS

5    It is necessary to first identify the relevant statutory provisions which entitle permit holders to enter premises in certain circumstances, as well as those provisions which allow for the imposition of penalties on those who delay or refuse permit holders entry to premises, or who hinder or obstruct permit holders in the exercise of their statutory rights.

6    In New South Wales, the starting point is the Work Health and Safety Act 2011 (NSW).

7    Section 117 of the Safety Act provides for a right of entry to permit holders. It is in the following terms:

117    Entry to inquire into suspected contraventions

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

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

8    A “WHS entry permit holder” is a person who has been issued a WHS permit pursuant to s 134 of the Safety Act: s 4 of the Safety Act. Section 134 of the Safety Act provides that the “authorising authority may issue a WHS entry permit to a person if the authorising authority has taken into account the matters in section 132 and is satisfied about the matters in section 133”. The “authorising authority” is the Industrial Relations Commission: s 4 of the Safety Act.

9    Section 118 of the Safety Act sets out the rights that a WHS entry permit holder may exercise while at the workplace. As at May 2020, it provided as follows:

118    Rights that may be exercised while at workplace

(1)    While at the workplace under this Division, 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,

(d)    require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that—

(i)    is kept at the workplace, or

(ii)    is accessible from a computer that is kept at the workplace,

(e)    warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk.

(2)    However, the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.

(3)    A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d).

WHS civil penalty provision.

Maximum penalty—

(a)    in the case of an individual—$10,000, or

(b)    in the case of a body corporate—$50,000.

(4)    Subsection (3) places an evidential burden on the defendant to show a reasonable excuse.

10    As at July and November 2020, the maximum penalty referred to in s 118(3) was expressed in terms of penalty units rather than in dollar amounts.

11    Section 119 of the Safety Act requires the permit holder to give notice of the entry after entering the workplace. It provides as follows:

119    Notice of entry

(1)    A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this Division, give notice of the entry and the suspected contravention, in accordance with the regulations, to—

(a)    the relevant person conducting a business or undertaking, and

(b)    the person with management or control of the workplace.

(2)    Subsection (1) does not apply if to give the notice would—

(a)    defeat the purpose of the entry to the workplace, or

(b)    unreasonably delay the WHS entry permit holder in an urgent case.

(3)    Subsection (1) does not apply to an entry to a workplace under this Division to inspect or make copies of documents referred to in section 120.

12    It is next necessary to consider relevant provisions of the Fair Work Act 2009 (Cth), particularly as the contraventions by Crookes which are the subject of these proceedings are contraventions of the Fair Work Act, not the Safety Act.

13    The CFMMEU alleges, and Crookes admits that, through the actions of its employees, Crookes contravened ss 501 and 502 of the Fair Work Act. Sections 501 and 502 are civil remedy provisions, the contravention of which can lead to the imposition of a pecuniary penalty. They provide as follows:

501    Person must not refuse or delay entry

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

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

502    Person must not hinder or obstruct permit holder

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

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

(2)    To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder.

(3)    Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.

14    A “permit holder” is helpfully defined in s 12 of the Fair Work Act as “a person who holds an entry permit”. An “entry permit” is even more helpfully defined is s 12 in the following terms: “see section 512”. Section 512 of the Fair Work Act provides as follows:

512     FWC [Fair Work Commission] may issue entry permits

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.

15    Of more relevance to this case is s 494 of the Fair Work Act, which provides for the circumstances in which a permit holder may exercise rights to enter premises under State and Territory legislation.

16    Subsection 494(1) provides that “[a]n official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder”. Subsection 494(2) defines “State or Territory OHS right” in terms which include, relevantly, a “right to enter premises … if the right is conferred by a State or Territory OHS law, and … the premises are occupied or otherwise controlled by … a constitutional corporation”: s 494(2)(a)(i) of the Fair Work Act. A “State or Territory OHS law” is “a law of a State or a Territory prescribed by the regulations”: s 494(3) of the Fair Work Act. A “constitutional corporation” is “a corporation to which paragraph 51(xx) of the Constitution applies”: s 12 of the Fair Work Act.

17    As will be seen, it was common ground in this case that Crookes was a “constitutional corporation” and at all relevant times occupied and controlled both the Opera Quays site and the Loftus Lane site. The Safety Act was a law prescribed by the regulations: see Fair Work Regulations 2009 (Cth), reg 3.25 item 1.

18    The general effect of s 494 of the Fair Work Act is that a person who has a State or Territory OHS right to enter premises and is also a permit holder under the Fair Work Act is entitled to enter premises in accordance with pt 3-4 of the Fair Work Act.

19    Section 496 of the Fair Work Act provides that “[i]n exercising a State or Territory OHS right, a permit holder must not contravene a condition imposed on his or her entry permit”. Section 497 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”.

20    Section 501 and s 502(1) are both civil remedy provisions: see item 25, column 1 of the table in s 539(2) of the Fair Work Act. Subsection 539(2) of the Fair Work Act provides that certain persons may apply to the Court for certain orders in relation to contraventions of the civil remedy provisions identified in the table in s 539(2). In the case of a contravention of ss 501 and 502(1), a “person affected by the contravention” may apply to, relevantly, the Court “for orders … including the maximum penalty” of 60 “penalty units”: see item 25, columns 3 and 4 of the table in s 539(2) of the Fair Work Act. It was common ground that a penalty unit was $210 at the time of the May 2020 contravention and (presumably as a result of indexation) $222 at the time of the balance of the contraventions: see s 12 of the Fair Work Act; s 4AA of the Crimes Act 1914 (Cth).

21    Subsection 546(1) of the Fair Work Act relevantly provides that the Court “may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision”. Subsection 546(2)(b) provides that, in the case of a body corporate, the pecuniary penalty must not be more than “5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2)”.

THE ADMITTED CONTRAVENTIONS

22    Crookes admitted that it had contravened s 501 of the Fair Work Act at the Opera Quays site on 26 May and 27 and 28 July 2020. The particulars of those contraventions as pleaded are as follows:

Richard Crookes Constructions Pty. Limited contravened s 501 of the Fair Work Act 2009 (Cth) (FW Act) on 26 May 2020 by its employees Chris Diversi and Peter Yamin after consulting with Cameron Waller and being in the company of its employee Nicholas Ryan unduly delaying entry to Jesse Strand, the holder of an entry permit under the FW Act and the Work Health and Safety Act 2011 (NSW) (WHS Act), to a building site at 79 Macquarie Street in Sydney in the State of New South Wales (Opera Quays Site) for a period of no more than 60 minutes, in circumstances where Strand had a right to enter under s 117 of the WHS Act to investigate suspected contraventions of the WHS Act and was entitled to enter the Site in accordance with part 3-4 of the FW Act;

Richard Crookes contravened s 501 of the FW Act on 27 July 2020 by its employees Hayden Cooper and Yamin after consulting with Waller refusing entry to the Opera Quays Site to Strand and Blake Kirby, who were holders of entry permits under the FW Act and the WHS Act, in circumstances where Strand and Kirby had a right to enter under s 117 of the WHS Act to investigate suspected contraventions of the WHS Act and were entitled to enter the Opera Quays Site in accordance with part 3-4 of the FW Act;

Richard Crookes contravened s 501 of the FW Act on 28 July 2020 by its employee Yamin,. being in the company of its employee Cooper, refusing entry to the Opera Quays Site to Strand and Adrian Carroll, who were holders of entry permits under the FW Act and the WHS Act, in circumstances where Strand and Kirby had a right to enter the Opera Quays Site under s 117 of the WHS Act to investigate suspected contraventions of the WHS Act and in circumstances where Strand and Carroll were entitled to enter the Opera Quays Site in accordance with part 3-4 of the FW Act;

23    Crookes also admitted that it had contravened ss 502(1) and 501 of the Fair Work Act at the Loftus Lane site on 11 and 12 November 2020 respectively. The particulars of those contraventions as pleaded are as follows:

Richard Crookes Constructions Pty. Limited contravened s 502(1) of the FW Act on 11 November 2020 by its employee Bill Stavrinos intentionally hindering or obstructing Jesse Strand and Adrian Carroll who were holders of entry permits issued under the FW Act and the WHS Act exercising rights in accordance with Part 3-4 of the FW Act at a building site located at 2-10 Loftus Lane in Sydney in the State of New South Wales (Loftus Lane Site) by delaying Strand and Carroll's exercise of rights for a period of no more than 2.5 hours by requiring police to attend the Loftus Lane Site and by asserting Strand and Carroll were trespassing;

Richard Crookes Constructions Pty. Limited contravened s 501 of the FW Act on 12 November 2020 by its employee Frank Crino refusing entry to the Loftus Lane Site to Strand and Carroll, who were holders of entry permits issued under the FW Act and the WHS Act, in circumstances where Strand and Kirby had a right to enter under s 117 of the WHS Act to enter to investigate suspected contraventions of the WHS Act and were entitled to enter the Loftus Lane Site in accordance with part 3-4 of the FW Act

AGREED FACTS AND FACTUAL FINDINGS

24    Most of the key facts in relation to the five contraventions were not in dispute. An agreed statement of facts was tendered by consent. Regrettably, however, the parties remained at loggerheads in respect of some of the facts, particularly in respect of the broader surrounding circumstances and some of the finer details of the contravening conduct. The ongoing dispute concerning those facts resulted in the parties calling oral evidence from a number of witnesses over a number of hearing days. The CFMMEU called evidence from one witness, Mr Jesse Strand, and Crookes called evidence from four witnesses, Mr Hayden Cooper, Mr Peter Yamin, Mr Orlando Crino, and Mr Cameron Waller.

25    A number of documents were also tendered by both parties. The CFMMEU tendered video recordings of exchanges between CFMMEU officials and Crookes employees at the entrance to the Opera Quays site on 27 and 28 July 2020.

26    The following summary of the facts is mostly drawn from the agreed statement of facts, though, where appropriate, reference is also made to the evidence adduced from witnesses and the additional documentary evidence. Findings of fact are made in respect of disputed or inconsistent evidence, at least where the resolution of the dispute or inconsistency is of some consequence. Some of the factual or evidentiary disputes concerned matters of fine detail or nuance that, at the end of the day, mattered very little when it ultimately came to the determination of appropriate penalties.

27    Unless otherwise indicated, the facts as stated are those extant at the time of the contraventions by Crookes.

The CFMMEU and its officers

28    The CFMMEU is an organisation registered pursuant to s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth). It is, by virtue of s 27 of that Act, a body corporate able to sue in its registered name. The CFMMEU is also an “employee organisation” and “industrial association” for the purposes of s l2 of the Fair Work Act and is entitled to represent the industrial interests of employees who perform work in the building and construction industry in New South Wales. It is, as such, a “person affected” by the contraventions by Crookes for the purposes of item 25 of s 539(2) of the Fair Work Act. The CFMMEU is also a “union” for the purposes of s 4 of the Safety Act.

29    Mr Adrian Carroll, Mr Strand, Mr Blake Kirby and Mr Michael Smith were CFMMEU officials. Each of them was a holder of an entry permit issued pursuant to s 512 of the Fair Work Act and the holder of an entry permit issued under s 134 of the Safety Act.

30    Mr Colm Munroe was an employee of Crookes, a member of the CFMMEU and a delegate elected to represent members of the CFMMEU who were employed by Crookes. Mr Munroe was engaged by Crookes to perform work at the Loftus Lane site. He was a health and safety representative for a work group comprising workers who performed work at the Loftus Lane site, having been elected to that position pursuant to the provisions of subdiv 4 of div 3 of pt 5 of the Safety Act. He was also a member and the chairman of the safety committee established by Crookes in relation to the Loftus Lane site.

Crookes, its managers and the building sites in question

31    Crookes is a corporation incorporated under the Corporations Act 2001 (Cth). It is a “constitutional corporation” and “national system employer” as defined in, and for the purposes of, ss 12 and 14 of the Fair Work Act.

32    Crookes was engaged to perform building works at both the Opera Quays site and the Loftus Lane site. It was, as such, the occupier of the premises where that building work was being carried out. Crookes engaged numerous subcontractors to perform work at both sites.

33    The building works being undertaken at the Opera Quays site involved construction of a project known as the “Opera Residences”. That was a $140 million project involving the construction of 104 high-end apartments over l9 levels. The building work at the Opera Quays site involved the construction of a multi-story building, ground level retail premises, a restaurant, a swimming pool, a gymnasium and six levels of car parking.

34    The building works being undertaken at the Loftus Lane site involved the construction of three new commercial and residential buildings, and the refurbishment of two heritage buildings known as the “Wool Store” and “Gallipoli”.

35    The Opera Quays site and the Loftus Lane site were both a “workplace” for the purposes of s 8 of the Safety Act and “premises” for the purposes of s l2 of the Fair Work Act.

36    Crookes was: engaged in the performance of “construction work” at both the Opera Quays site and the Loftus Lane site for the purposes of reg 289 of the Work Health and Safety Regulation 20l7 (NSW) (the Safety Regulation); engaged in the performance of “high risk construction work” at the Loftus Lane site for the purposes of reg 291 of the Safety Regulation, being works involving precast concrete, the movement of powered mobile plant and risks of persons falling more than two metres; the “principal contractor” at both the Opera Quays site and the Loftus Lane site for the purposes of reg 293 of the Safety Regulation; as occupier of both the Opera Quays site and the Loftus Lane site, capable of exercising control over entry to the site, including entry by officials of trade unions issued who held entry permits; a “person conducting a business or undertaking” at the Loftus Lane site for the purposes of s 5 of the Safety Act; a person with management or control of the Loftus Lane site for the purposes of s 20 of the Safety Act; and a person conducting a business or undertaking with duties to workers who performed work at the Opera Quays site and the Loftus Lane site under the Safety Act and the Safety Regulation.

37    Workers who worked at the Opera Quays Site and the Loftus Lane site were members, or were eligible to be members of, the CFMMEU or were persons whose industrial interests the CFMMEU was entitled to represent.

38    Mr Waller was employed by Crookes as a Construction Manager. He had, in that capacity, authority to determine whether holders of permits issued under s 512 of the Fair Work Act and s 134 of the Safety Act could enter the Opera Quays site.

39    Mr Yamin was employed by Crookes as a Senior Project Manager. He had, in that capacity, authority to determine whether persons could enter the Opera Quays site.

40    Mr Cooper was employed by Crookes as a Senior Site Manager at the Opera Quays site. He had, by virtue of occupying that position, authority to determine whether persons could enter the Opera Quays site.

41    Mr Chris Diversi was employed by Crookes as a General Foreman. On 26 May 2020, he was engaged by Crookes to perform duties as Acting Site Manager at the Opera Quays site. He had, in that capacity, authority to determine whether persons could enter the Opera Quays site.

42    Mr Nicholas Ryan was employed by Crookes as a Project Engineer.

43    Mr Bill Stavrinos was employed by Crookes as a Construction Manager. He had, in that capacity, authority to determine whether persons could enter the Loftus Lane site.

44    Mr Crino was employed by Crookes as a Senior Site Manager at the Loftus Lane site. He had, by virtue of occupying that position, authority to determine whether persons were able to enter the Loftus Lane site.

45    Mr Matthew Dymond was employed by Crookes as a Work, Health, Safety and Environment Advisor.

46    Mr Andrew Bombardiere was employed by Crookes as a Business Unit Safety Advisor.

The contravention at the Opera Quays site on 26 May 2020

47    At about 8:45am on 26 May 2020, Mr Strand received an email from a CFMMEU official which referred to a complaint that there was water on a number of levels at the Opera Quays site and that employees were working at the site with wet feet and boots. Based on the contents of that email, Mr Strand suspected that Crookes had contravened, or was contravening, s 19 of the Safety Act by: failing to ensure, so far as was reasonably practicable, the health and safety of workers at the site; failing to provide and maintain a work environment without risks to health and safety; and failing to ensure, so far as was reasonably practicable, that floors and other surfaces were maintained to allow work to be carried out without risk to health and safety. Mr Strand suspected that those contraventions related to or affected “relevant workers” working at the Opera Quays site for the purposes of s 116 of the Safety Act.

48    Crookes ultimately did not dispute that Mr Strand’s suspicions were reasonable suspicions in the circumstances.

49    After receiving the email, Mr Strand attended the Opera Quays site for the purpose of entering the site to inquire into those suspected contraventions. Mr Strand had attended the Opera Quays site and exercised his entry rights pursuant to the Fair Work Act and the Safety Act on a number of previous occasions. He had on those prior occasions dealt with both Mr Yamin and Mr Cooper, and had been permitted onto the site.

50    Mr Strand arrived in the vicinity of the Opera Quays site at about 9:45am on 26 May 2020. Mr Strand first spoke with Mr Diversi just outside the entry to the site. Mr Strand told Mr Diversi that he had received safety complaints from workers at the site about rain presenting safety issues and that he wished to enter the site to inquire into those contraventions. Mr Diversi told Mr Strand he would make a phone call. Mr Diversi then walked away.

51    Mr Diversi contacted Mr Waller and spoke with him about whether Mr Strand should be permitted to enter the Opera Quays site. Mr Yamin was also a party to that conversation. Mr Waller instructed Mr Diversi and Mr Yamin not to permit Mr Strand to enter the site.

52    Mr Waller’s evidence was that he told Mr Diversi not to allow Mr Strand onto the site because he had formed the view that Mr Strand did not have a reasonable suspicion.

53    At or about 10:l5am, Mr Strand, who was still outside the Opera Quays site, was approached by Messrs Yamin, Diversi and Ryan. Mr Yamin asked Mr Strand what the purpose of his visit to the site was and why was he requesting entry to the site. Mr Strand showed Mr Yamin his entry permits, as well as a notice pursuant to s 119 of the Safety Act. He told Mr Yamin that he sought to enter the site to investigate suspected contraventions of the Safety Act. Mr Yamin asked Mr Diversi whether he had spoken to Mr Waller. Mr Diversi replied that he had spoken to Mr Waller. Mr Yamin then told Mr Strand that he would not be entering the site. Mr Strand asked whether Mr Waller was denying him entry. Mr Diversi replied that Mr Waller was denying him entry.

54    Following that discussion, Messrs Diversi, Yamin and Ryan walked away from Mr Strand. Mr Strand remained waiting at the front entrance to the Opera Quays site.

55    At some point in time between 10:15am and 10:45am, Mr Yamin and Mr Waller had a further conversation. Mr Waller’s evidence was that Mr Yamin told him that the “union organisers weren’t going away” and that he would prefer that Crookes “let them on and escorted them through the site”. Mr Waller asked whether there were any issues on the site, to which Mr Yamin replied “No. Everything’s in place”. Mr Waller then said “if you think it’s more expeditious to let them on, then let them on”.

56    At or shortly before 10:45am, Mr Yamin approached Mr Strand and informed him that he was permitted to enter the Opera Quays site. Mr Strand entered the site at about l0:45am.

57    In his evidence, Mr Yamin endeavoured to explain the delay in permitting Mr Strand access to the site on 26 May 2020 on the basis that it had something to do with the fact that Crookes did not have its usual site manager and safety supervisor on the site that day, and that it took him 15 minutes to walk to the site. He also suggested that he did not allow Mr Strand to enter the site initially because Crookes had followed its normal safety inspection procedure that morning and had closed down those areas of the site that had been affected by water. The suggestion appeared to be that Mr Strand’s safety concerns were not reasonable or legitimate.

58    Mr Yamin’s attempts to explain the initial refusal to allow Mr Strand entry to the site on 26 May 2020 were neither plausible nor credible. The evidence as a whole revealed that Mr Yamin, like Mr Diversi, initially refused Mr Strand access to the site simply because Mr Waller had instructed him to do that.

59    Mr Waller’s evidence was that he instructed Mr Diversi not to allow Mr Strand to enter the site. He said that he gave that instruction because he was of the view that the reason that Mr Strand gave for seeking access to the site, as recounted to him by Mr Diversi, sounded “very generic” and that he believed that Mr Strand was on a “fishing expedition”. According to Mr Waller, Mr Diversi told him that the reason given by Mr Strand for seeking access was that he believed the building was flooded and “wet underfoot”. When Mr Waller asked whether the building was flooded, Mr Diversi said that the top levels of the building had been locked off because they were wet and that Crookes staff had “dewatered” the lower levels. It was on that basis that he believed that Mr Strand did not reasonably suspect there had been or might be a safety contravention.

60    That is far from being a reasonable or acceptable explanation for deciding to refuse to permit a permit holder to access a building site. Among other things, Mr Waller did not explain what he thought Mr Strand was “fishing” for, particularly given that at the time he did not think that the access visit was industrially motivated. Perhaps more significantly, the information that Mr Diversi gave Mr Waller, if anything, suggested that Mr Strand might well have had a legitimate and reasonable basis for suspecting that there may be safety issues arising from water ingress at the site. Mr Waller had no reasonable or legitimate basis for believing that Mr Strand’s suspicions that safety contraventions had or were occurring on the site were not legitimate. Nor did he have any reasonable basis for refusing Mr Strand access simply because he thought that Mr Strand’s reasons for seeking access “sounded generic”, particularly given that Mr Waller plainly knew that Mr Strand was a permit holder. More will be said later about Mr Waller’s state of mind and his reasons for denying Mr Strand and others access to the relevant sites.

Background to the contraventions at Opera Quays site in July 2020

61    There was some industrial unrest at the Opera Quays site in the days preceding 27 July 2020. That unrest arose as a result of the fact that, in late July 2020, the company that had been subcontracted to provide formwork for the Opera Quays project, Eastside Formwork Pty Limited, had encountered financial difficulties and had stopped paying its workers. The result, perhaps not surprisingly, was that the Eastside workers “downed tools”. Crookes then denied the Eastside workers access to the site. From about 22 July 2020, some of the Eastside workers began protesting in an area adjacent to the “Quay Gates” entry to the Opera Quays site. They were on occasion accompanied by officials from the CFMMEU.

62    Crookes management had endeavoured to engage a new formwork contractor to perform the work that Eastside and its workers had been performing on the site. Mr Waller believed, based on what he had been told by others, that other formwork companies were reluctant to perform the work because the CFMMEU had indicated that no alternative formwork should be performed on the Opera Quays site unless, and until, the Eastside workers were paid their entitlements.

63    Crookes management were, however, ultimately able to retain Prestige Formwork Pty Ltd to perform work on the site. Mr Waller’s evidence was, in substance, that he believed, on the basis of discussions that he had with certain senior officials at the CFMMEU, that the CFMMEU might take steps to prevent or impede the Prestige workers from doing formwork on the site if Crookes did not pay the Eastside workers their outstanding wages and entitlements.

64    At about 2:00pm on Friday 24 July 2020, Mr Kirby and Mr Strand attended the area in front of the Opera Quays site. There were a number of Eastside workers protesting in a public area outside the entrance to the site at this time. Some CFMMEU officials were also with those workers. While accounts of the number of people protesting outside the site varied, there was probably about 30 and no more than 50 workers and union officials congregated outside the site at the time. Mr Strand and Mr Kirby spoke with some of the Eastside workers.

65    Mr Kirby and Mr Strand received information on the afternoon of 24 July 2020 that caused them to suspect that Crookes had contravened or was contravening: its duty under s 19 of the Safety Act to ensure, so far as was reasonably practicable, the health and safety of workers at the site; its duty under s 19 of the Safety Act to ensure, so far as was reasonably practicable, the provision and maintenance of a work environment without risks to health and safety; its duty under s 19 of the Safety Act to provide adequate facilities for the welfare at work of workers carrying out work at the site; its duty under reg 41 of the Safety Regulation to ensure that it provided, so far as was reasonably practicable, adequate facilities for workers, including eating facilities, and that those facilities were clean; and its duty under reg 78 of the Safety Regulation to manage risks to health and safety associated with falls by persons from one level to another that were reasonably likely to cause injury by eliminating those risks or, if it was not reasonably practicable to do so, minimising those risks so far as reasonably practicable. Those suspected contraventions related to or affected “relevant workers” working at the Opera Quays site for the purposes of s 116 of the Safety Act.

66    Crookes ultimately did not dispute that Mr Kirby and Mr Strand’s suspicions were reasonable suspicions in the circumstances.

67    Work was carried out at the Opera Quays site on the weekend of 25 and 26 July 2020. Prestige workers worked on the site on those days. There was no evidence to suggest that any steps were taken by the CFMMEU or any of its members to prevent Prestige workers working on the site over that weekend. There were also no industrial issues on the site over that weekend. Workers from Prestige were also due to work on the site on 27 July 2020.

The contravention at the Opera Quays site on 27 July 2020

68    At or about 6:30am on Monday 27 July 2020, Mr Kirby and Mr Strand attended the Opera Quays site for the purpose of entering the site to inquire into the suspected contraventions of the Safety Act and the Safety Regulations which they had become aware of on the previous Friday. There were about 30 to 35 Eastside workers protesting in a public area outside the Quay Gates entry to the site that morning, along with some CFMMEU officials. The Quay Gates entry was on the north west corner, or Opera House side, of the site. There was a turnstile at the Quay Gates entry. Only workers with a “swipe card” could enter the site. The Eastside workers no longer had swipe cards.

69    Crookes had arranged for Prestige workers to work on the site on 27 July 2020. Crookes management had decided that the Prestige workers should enter the site via a different access point on Macquarie Street. The Macquarie Street access was primarily intended as an emergency exit, but also provided an alternative means of entering the site. There was no turnstile or swipe card access at the Macquarie Street entrance.

70    Some Eastside workers were also protesting outside the Macquarie Street entrance, along with some CFMMEU officials. At some point, Mr Strand appears to have been near the Macquarie Street entrance. Differing accounts were given in evidence as to whether the Eastside workers were linking arms and preventing entrance to the site. Whether or not that was the case, Mr Cooper’s evidence was that at, or very shortly after, 7:00am he spoke to Mr Strand in the vicinity of the Macquarie Street entrance. Mr Strand then ensured that the Eastside workers moved aside to facilitate the Prestige workers’ entry to the site via that entrance.

71    At some point before 7:30am, Mr Kirby and Mr Strand attended the area outside the Quay Gates entry to the site. While standing there, they were approached by other workers who were on their way onto the site. Those workers told Mr Kirby and Mr Strand that there were access and egress issues on the site. Those issues had been caused by rainwater entering and pooling in various areas of the site, including on the fire stairs, outside the amenities area in the basement and on a number of other floors. Mr Strand also saw, from where he was standing, that there was a puddle of water obstructing the ground level entrance to the building being constructed at the site. The water came up to the turnstiles at the entrance to the site.

72    As a result of the information that they had received on the afternoon of 24 July 2020, the additional information provided to them by workers on 27 July 2020, and Mr Strand’s own observations, Mr Strand and Mr Kirby suspected that Crookes had contravened or was contravening its duty under s 19 of the Safety Act to ensure, so far as was reasonably practicable, the health and safety of workers at the site and its duty under s 19 of the Safety Act to ensure, so far as was reasonably practicable, the provision and maintenance of a work environment without risks to health and safety. Those suspected contraventions related to or affected “relevant workers” working at the Opera Quays site for the purposes of s 116 of the Safety Act. Mr Strand and Mr Kirby determined that they would enter the Opera Quays site for the purpose of inquiring into those suspected contraventions.

73    Crookes ultimately did not dispute that Mr Kirby and Mr Strand’s suspicions were reasonable suspicions in the circumstances.

74    Mr Strand prepared a notice for the purposes of s 119 of the Safety Act.

75    At or about 7:30am on 27 July 2020, Mr Strand telephoned Mr Cooper and asked him to meet him at the turnstile at the Quay Gates entrance to the Opera Quays site as he needed to speak to him about safety issues at the site. Mr Cooper was not able to immediately meet Mr Strand. He telephoned Mr Yamin to arrange for him to meet with Mr Strand and Mr Kirby.

76    Mr Yamin attended the front gate to the Opera Quays site at about 8:00am. A conversation between Mr Yamin and Mr Strand then ensued. A recording of that conversation was in evidence.

77    Mr Strand said something about working in the rain, showed Mr Yamin a document, and said that he was there to enter “under 117”. Mr Yamin shook his head and said words to the effect: “no, no-one’s coming in today”. Mr Stand said “are you denying me access?”, and Mr Yamin said: “yes, nobody’s coming in today”. Mr Strand then said “are you denying a permit holder access?” and Mr Yamin, again, replied “yes”. Mr Strand said “I’m entering under 117, here’smy notice, I have written it out for you already, all the complaints”, to which Mr Yamin replied “what are the complaints? Show me”. Mr Strand then showed the notice to Mr Yamin and said “there you go, have a read”. Mr Yamin appeared to read the notice. Mr Stand said “I have been specific in the complaints”. Mr Yamin then said “alright, leave it with me and I’ll make a phone call”.

78    Mr Yamin then contacted Mr Waller and had a conversation with him about whether Mr Strand and Mr Kirby should be permitted to enter the site. Mr Waller asked Mr Yamin what safety issues Mr Strand and Mr Kirby were putting forward. Mr Yamin told Mr Waller that the issues related to ingress and egress. Mr Waller told Mr Yamin that he did not believe that there were any safety issues and that Mr Strand and Mr Kirby wanted to enter the site for industrial purposes. He instructed Mr Yamin to refuse Mr Strand and Mr Kirby entry to the site.

79    Shortly thereafter, Mr Yamin returned to the Quay Gates entrance to the site. He was then joined by Mr Cooper. A conversation then ensued between Mr Cooper, Mr Yamin, Mr Strand and Mr Kirby. A recording of that conversation was in evidence.

80    Mr Cooper said “Mate, it’s not my decision. It’s been made above me”. Mr Yamin said “it’s industrial mate”, to which Mr Strand replied “it’s not an industrial dispute”. Mr Strand pointed to the notice and said “it’s about safety, there’s the 117, it clearly states entering under 117 to inspect and all the safety breaches are there”. Mr Cooper said “we know mate, but we’ve got our orders”. Mr Strand said “you’re denying a permit holder access … you’re denying me access, so that’s final is it”, to which either or both of Mr Yamin and Mr Cooper said “yes”. Mr Strand then said “we’ll get SafeWork down here”. Mr Yamin and Mr Cooper then entered the Opera Quays site.

81    Mr Strand then attempted to telephone SafeWork NSW, being the regulator established under cl 1 of Sch 2 to the Safety Act. He initially received an automated message, but at 8:45am he was able to speak with a SafeWork employee and request assistance at the Opera Quays site.

82    At or about 10:30am, Mr Ryan McKeown and Mr Kevin Murphy, who were both inspectors appointed pursuant to s 156 of the Safety Act, attended the Opera Quays site in response to Mr Strand’s request for assistance. Mr Strand informed Mr McKeown and Mr Murphy that he and Mr Kirby had been refused entry to the Opera Quays site. Mr Strand then explained the safety issues on the site that he and Mr Kirby wished to inquire into. Both he and Mr Kirby showed Mr McKeown and Mr Murphy their entry permits. Mr Murphy said he could not force Crookes to allow Mr Strand and Mr Kirby onto the site, but that he would endeavour to negotiate with Crookes to get them onto the site. Mr Murphy and Mr McKeown then entered the Opera Quays site and spoke with Mr Yamin and Mr Cooper. They also spoke with Mr Waller.

83    The efforts by Mr Murphy and Mr McKeown to secure Mr Strand and Mr Kirby’s entry to the site were unsuccessful. After speaking with officers of Crookes, including Mr Yamin and Mr Waller, Mr Murphy told Mr Strand and Mr Kirby that Crookes was still not permitting them to enter, and that he and Mr McKeown would enter the Opera Quays site and investigate the issues that Mr Strand and Mr Kirby had brought to their attention. Mr Murphy and Mr McKeown then proceeded to enter the Opera Quays site.

84    As a result of their investigations, Mr Murphy and Mr McKeown issued Crookes with four improvement notices under the Safety Act. Those notices required Crookes to remedy or prevent various safety issues, including some issues of a similar nature to those that Mr Strand and Mr Kirby suspected and intended to investigate. For example, one of the notices recorded that workers “may be exposed to a risk to their health or safety from slips trips and falls as the workplace has not been maintained so as to allow, for persons to enter and exit and to move about without risk to health and safety …”. The notice referred, in that regard, to “[d]ebris on the scaffold”, “[w]ater on the stairs on the upper levels”, “[o]bstructed access to the scaffold stairs on the ground floor” and “[p]ly combined with the recent rain has created a slippery surface at the top of the stairs and on ramps”.

85    Both Mr Cooper and Mr Yamin suggested in their evidence that the issues raised in the improvement notices were minor in nature. The terms of some of the notices suggest otherwise. In any event, the notices plainly indicate that there were legitimate safety issues on the site that warranted or justified Mr Strand and Mr Kirby’s suspicions in relation to contraventions. The notices also put paid to any suggestion that Mr Waller, Mr Cooper and Mr Yamin had any basis, let alone reasonable basis, for doubting the reasonableness of Mr Strand and Mr Kirby’s suspicions that safety contraventions had occurred, or were occurring, on the Opera Quays site on 27 July 2020.

86    Mr Cooper’s evidence was, in essence, that he decided to refuse entry to Mr Strand and Mr Kirby on 27 July 2020 for three reasons. First, he believed that Mr Strand and Mr Kirby wanted to enter the site for industrial, not safety reasons and, if permitted to enter the site, Mr Strand and Mr Kirby would cause disruption in the workplace. Second, he did not believe that there were any legitimate safety concerns. Third, he believed from the training that he had received that he could refuse a permit holder entry if he did not believe that there were legitimate safety concerns.

87    Mr Cooper’s evidence concerning his reasons for refusing entry does not withstand scrutiny. He had no reasonable basis to believe that he was able to refuse Mr Strand and Mr Kirby entry to the site for any of those reasons.

88    It may be accepted that Mr Strand and Mr Kirby’s attempt to access the site occurred in the midst of some industrial disharmony on the site as a result of the standing down of the Eastside workers. There was, however, no reasonable basis for Mr Cooper to believe that the access visit was motivated by that industrial issue, and even less basis for him to believe that Mr Strand and Mr Kirby intended to cause any disruption on the site. Mr Cooper did not suggest that Mr Strand or Mr Kirby had caused any difficulties or disruption on the site in the past. Nor did he explain how or why Mr Strand or Mr Kirby would cause any disruption on the site, or point to anything that Mr Strand and Mr Kirby said or did which suggested that they might cause any disruption. The legitimacy and reasonableness of Mr Cooper’s belief is belied by the fact that, earlier that very morning, Mr Strand had assisted Crookes by ensuring that the Prestige workers were able to enter the site via the Macquarie Street entrance without being impeded by the protesting Eastside workers.

89    Mr Cooper’s also had no reasonable basis to believe or suspect that there were no legitimate safety issues for Mr Strand and Mr Kirby to investigate. It may be accepted that Crookes’ health and safety managers had walked through the site at 7:00am that morning. Mr Cooper, however, did not himself inspect the site that morning. The safety inspection had also revealed that there were safety issues on the site that morning, largely caused by the rain. Moreover, Mr Cooper did not speak to any of the health and safety managers on the site to determine whether the issues raised by Mr Strand and Mr Kirby were legitimate. Mr Cooper conceded that it would have been a straightforward exercise to let Mr Strand and Mr Kirby onsite to point out their areas of concern. As events transpired, at least some of the issues raised by Mr Strand and Mr Kirby were later ascertained to be legitimate, in particular the safety issues caused by water on the site.

90    As for his beliefs based on his training, Mr Cooper’s evidence concerning the training he had received was vague and unpersuasive. At best, it demonstrated either that the training that Crookes had given its managers was poor, or that Mr Cooper had paid scant attention to it.

91    Mr Cooper ultimately conceded that there were legitimate safety issues on the site for Mr Strand and Mr Kirby to investigate that morning. He also conceded that he knew that, as permit holders, Mr Strand and Mr Kirby were entitled to enter the site under the Safety Act to investigate suspected safety contraventions. By the conclusion of the evidence it became readily apparent that the main, if not only, reason that Mr Cooper refused access to Mr Strand and Mr Kirby was because Mr Waller told him to do so.

92    Like Mr Cooper, Mr Yamin sought to explain his role in refusing to allow Mr Strand and Mr Kirby onto the site by suggesting that he believed that Mr Strand and Mr Kirby wanted to enter the site on 27 July 2020 for industrial reasons, and that the safety concerns that Mr Strand said he had were not genuine. Mr Yamin’s evidence in that regard lacked credibility for essentially the same reason that Mr Cooper’s evidence lacked credibility. His evidence was also somewhat disingenuous. Ultimately, he conceded that he refused entry to Mr Strand and Mr Kirby because that was what Mr Waller instructed him to do. His attempts to explain his actions did not reflect well on the credibility of his evidence generally.

93    In his evidence, Mr Waller agreed that, on the morning of 27 July 2020, he instructed Mr Yamin and Mr Cooper to refuse to allow Mr Strand and Mr Kirby to enter the site. He said he did so because he had formed the view that they were not seeking to enter the site for safety reasons, but rather were seeking to further what he referred to as the CFMMEU’s “industrial campaign” in relation to the Eastside workers. He also claimed that he believed, based on what he had been told by Mr Yamin and Mr Cooper, that the reasons given by Mr Strand and Mr Kirby for wanting access to the site were “very generic”. He was, however, unable to recall much of what he was told by Mr Yamin and Mr Cooper about what Mr Strand and Mr Kirby had said to them about their reasons for seeking access to the site.

94    It should be emphasised that there was no evidence that the CFMMEU was in fact conducting any industrial campaign at the Opera Quays site on and around 27 July 2020 which involved preventing the Prestige workers from entering or working on the site. Indeed, as already noted, the Prestige workers had worked on the site on 25 and 26 July without incident and were ultimately able to enter the site on the morning of 27 July 2020. The evidence went no higher than establishing that a number of Eastside workers were protesting in public areas outside the Opera Quays site and that they were accompanied by officials from the CFMMEU. While some Crookes employees may have described the protest as a “picket”, the evidence did not establish that to be the case. Crookes did not contend or submit otherwise in this proceeding. Mr Waller was permitted to give evidence of conversations that he had had with some CFMMEU officials, but that evidence was admitted on the strictly limited basis that it was relevant to Mr Waller’s state of mind.

95    Perhaps more significantly, the evidence did not establish that Mr Strand and Mr Kirby’s attempt to access the Opera Quays site on 27 July 2020 was motivated, or related, in any way to any industrial action or campaign that the CFMMEU may have been involved in at the time. It was not put to Mr Strand in cross-examination that his purpose in seeking access to the site was anything other than to investigate suspected safety contraventions. Nor was it put to Mr Strand that he did not entertain genuine suspicions about safety contraventions on the site, or that he had no reasonable basis for the suspicions.

96    It may perhaps be accepted that, on 27 July 2020, Mr Waller believed that the CFMMEU had become involved in the issue concerning the entitlements of the Eastside workers and was involved in, or had threatened, some form of industrial campaign or action in that regard. It cannot, however, be accepted that Mr Waller had any reasonable basis to believe that Mr Strand and Mr Kirby were seeking to enter the site on the morning of 27 July 2020 for reasons related to any such campaign. Even if the CFMMEU was involved in such a campaign, there was no sound reason for Mr Waller to believe that Mr Strand and Mr Kirby were part of that campaign. The most that could be said is that their attendance at the site on the morning of 27 July 2020 coincided with what appeared to be the heightening tensions arising from the position of the Eastside workers. Mr Waller also did not explain how or why he believed that any campaign by the CFMMEU relating to the Eastside workers would be advanced in any way by Mr Strand and Mr Kirby accessing the site.

97    Mr Waller’s evidence about the reasons for the requested access being “very generic” was also far from persuasive or reliable. Mr Waller appears to have done little, if anything, to endeavour to ascertain or clarify the nature of the suspected contraventions that Mr Strand and Mr Kirby were seeking to investigate by accessing the site. The suggestion that the reasons given by Mr Strand and Mr Kirby were “very generic” appeared to be little more than a convenient excuse for denying them access to the site because they were from the CFMMEU and he believed that the CFMMEU may have been involved in some form of industrial campaign.

98    Like Mr Cooper and Mr Yamin, Mr Waller also sought to shift the blame for the contraventions onto the training that he and other Crookes officers had received in relation to rights of access under the Safety Act and the Fair Work Act. Mr Waller claimed that in May and July 2020, he believed, as a result of the training he had received, that he was able to refuse a permit holder access if he was not personally satisfied that the permit holders had demonstrated that their suspicions in relation to contraventions were reasonable. It is, however, difficult to see how Mr Waller could reasonably have entertained that belief.

99    Some of the training materials were tendered. The materials asserted that, before obtaining access, a permit holder was required to reasonably identify the suspected or potential contraventions that they were seeking access to investigate. There is no suggestion in the materials that it was up to the occupier of the premises in question to determine whether the permit holder’s suspicions were reasonable. If Mr Waller had formed the view, based on the training materials, that it was up to him to determine whether the suspicions of the permit holders was reasonable, he could not have been paying much attention during the training.

100    It should also be noted, in this context, that Mr Waller made no attempt on 27 July 2020 to seek the advice or counsel of anyone in the work health and safety “team” at Crookes, or any other officer at Crookes who may have been able to advise him in relation to the access rights of permit holders, or about whether he was lawfully able to refuse entry to Mr Strand and Mr Kirby that morning. He appears to have decided to instruct Mr Yamin and Mr Cooper to refuse entry to Mr Strand and Mr Kirby without counsel, deliberation or any careful consideration of the situation.

101    Ultimately, Mr Waller’s attempt to shift blame onto the training he had received did not greatly assist Crookes. It smacked of a convenient ex post facto attempt to justify what appeared to be a knee-jerk reaction to refuse access. At best, it demonstrated that Mr Waller had not given serious consideration and attention to the training he had previously received.

The contravention at the Opera Quays site on 28 July 2020

102    Early in the morning on 28 July 2020, Mr Strand met with Mr Carroll and discussed the events of the previous day, including Mr Strand’s suspicion that Crookes had contravened, or was contravening, the Safety Act and the Safety Regulations on the Opera Quays site. Mr Strand continued to entertain those suspicions. Mr Carroll formed the same suspicions as a result of his discussions with Mr Strand. As a result, Mr Strand and Mr Carroll determined to attend the Opera Quays site for the purpose of entering the site to inquire into those suspected contraventions.

103    At or about 6:30am on 28 July 2020, Mr Strand and Mr Carroll attended the Opera Quays site. After arriving at the site, Mr Carroll and Mr Strand were informed by some of the workers that some workers on the site had not been provided with appropriate personal protective equipment for wet weather. The workers also told them that the first aid area was not in an adequate condition, was unhygienic and was not easily accessible. Perhaps more significantly, they said that amenities had been placed on the scaffold and that the hoist was not working properly, with the result that workers had to walk up and down nine flights of stairs. They also reported that there were open penetrations on the fire stairs for the risers and a lack of handrails on the concrete stairs leading from the ground to mezzanine level, which created a risk of falling from heights. While speaking to the workers, Mr Carroll observed that a stairway running through the middle of the Opera Quays site on level 2 did not have any handrails. Mr Carroll suspected that this situation gave rise to a risk that workers may fall from heights.

104    As a result of the additional information they received from the workers, and from Mr Carroll’s own observations, Mr Strand and Mr Carroll suspected that Crookes had contravened or was contravening: its duty under s l9 of the Safety Act to ensure, so far as was reasonably practicable, the health and safety of workers at the site; its duty under s 19 of the Safety Act to ensure, so far as was reasonably practicable, the provision and maintenance of a work environment without risks to health and safety; its duty under s 20(2) of the Safety Act to ensure, so far as was reasonably practicable, that the means of entering and exiting the workplace were without risks to the health and safety of any person; its duty under s 26(2) of the Safety Act to ensure, so far as was reasonably practicable, that the hoist was without risks to the health and safety of any persons using the hoist; its duty under reg 78 of the Safety Regulation to manage risks to health and safety associated with falls by persons from one level to another that were reasonably likely to cause injury by eliminating those risks or, if elimination was not reasonably practicable, to minimise those risks so far as was reasonably practicable; and its duty under reg 203 of the Safety Regulation to manage risks to health and safety associated with plant by eliminating those risks or, if not reasonably practicable to do so, minimising those risks so far as was reasonably practicable. Those suspected contraventions related to or affected “relevant workers” at the Opera Quays site for the purposes of s 116 of the Safety Act.

105    Crookes ultimately did not dispute that Mr Strand’s and Mr Carroll’s suspicions in that regard were reasonable suspicions in the circumstances.

106    Mr Carroll prepared a notice of entry for the purposes of s 119 of the Safety Act.

107    At or about 8:00am, Mr Strand telephoned Mr Cooper and asked to meet him at the front entrance to the Opera Quays site to discuss a number of safety issues that Mr Strand and Mr Carroll wanted to enter the site to investigate. Mr Cooper said that he would not meet with Mr Strand and Mr Carroll. Mr Strand asked Mr Cooper to send someone else. About 15 minutes later, Mr Cooper telephoned Mr Strand and told him that Mr Yamin would meet with him and Mr Carroll in about 30 minutes. Mr Strand and Mr Carroll waited at the entry to the Opera Quays site.

108    At or about 8:30am, Mr Yamin and Mr Cooper attended the front of the Opera Quays site where Mr Strand and Mr Carroll were waiting. Mr Yamin and Mr Cooper had, by this point in time, spoken with Mr Waller and had been instructed by him not to permit Mr Strand and Mr Carroll to enter the site.

109    When Mr Yamin and Mr Cooper arrived at the entry to the site, Mr Strand and Mr Carroll showed them their entry permits and the notice that Mr Carroll had prepared for the purposes of s 119 of the Safety Act. A conversation then ensued. A recording of that conversation was in evidence.

110    Mr Strand said that he and Mr Carroll were “requesting entry under 117”. Mr Yamin said “I understand”. Mr Yamin said that they would not be permitted on the site. Mr Strand said “are you denying us access again, for a second day?”. Mr Yamin said “the permit is not specific enough”. Mr Strand said “read out the issues again Adrian, I’m pretty sure they are specific enough”. Mr Carroll said “they are very specific”. Mr Yamin said “it doesn’t provide location, area, whatever”. Mr Carroll said “it does provide the location and the area – it says the amenities and refers to access and egress throughout the site”. Mr Yamin said “there is an ongoing industrial matter here”. Mr Strand said “it has nothing to do with industrial, it’s all safety, we are requesting entry under 117 – suspected contraventions under the Act … so you are denying us access again?”. Mr Yamin said “yes”.

111    Mr Strand and Mr Carroll were not able to access the Opera Quays site at any time on 28 July 2020.

112    Mr Cooper’s evidence as to why he refused access to Mr Strand and Mr Carroll on 28 July 2020 was similar to his evidence as to why he refused entry on 27 July 2020. He said that the safety concerns that Mr Strand had on 28 July 2020 were the same as those indicated on the previous day, that he believed the site was “in good shape”, and that Mr Strand and Mr Carroll were just trying to disrupt the site. The difficulty for Mr Cooper, however, is that, by the morning of 28 July 2020, he knew that the SafeWork inspectors who had attended the site the previous day were going to issue improvement notices which identified safety issues on the site that required rectification. At least some of those notices addressed issues which were similar to those that Mr Strand and Mr Carroll said they wanted to inquire into, including issues concerning access and egress. There was accordingly no legitimate or reasonable basis upon which Mr Cooper could have believed that Mr Strand and Mr Carroll did not entertain reasonable suspicions concerning safety contraventions, or that they did not have any legitimate basis to enter the site to inquire into those suspected contraventions.

113    It became readily apparent by the conclusion of the evidence that the real or predominant reason that Mr Cooper refused Mr Strand and Mr Carroll entry on 28 July 2020 was that he had been instructed by Mr Waller to do so. Mr Cooper’s evidence that sought to explain or justify his actions on some other basis was not credible.

114    The same can be said concerning Mr Yamin. Mr Yamin’s evidence was that he refused Mr Strand and Mr Carroll entry because he believed that the safety issues or concerns that Mr Strand and Mr Carroll had pointed out were not “specific enough” and not genuine. There was, however, no legitimate or reasonable basis for Mr Yamin to have formed that belief. Mr Yamin did not speak with any of Crookes’ health and safety managers, or make any other inquiries or investigations as to the legitimacy of the safety issues referred to by Mr Strand and Mr Carroll before refusing them entry. Mr Yamin ultimately conceded that when he refused Mr Strand and Mr Carroll access, he was acting in accordance with the directions he had been given by Mr Waller, and that Mr Waller was the real decision-maker. His evidence which sought to legitimise his actions otherwise lacked credibility.

115    Mr Waller’s evidence as to why he instructed Mr Yamin and Mr Cooper to refuse access to Mr Strand and Mr Carroll on 28 July 2020 was essentially the same as his evidence as to why he gave the same instruction on 27 July 2020. For the reasons given earlier, Mr Waller lacked reasonable grounds for believing that Mr Strand and Mr Carroll had no legitimate basis for seeking entry to the site on 28 July 2020, or that they were only seeking access for industrial purposes. He also had no reasonable grounds for believing that the safety issues raised by Mr Strand and Mr Carroll, as recounted to him, were not reasonable or legitimate, and no basis for believing that the suspicions entertained by Mr Strand and Mr Carroll were not reasonable suspicions. Nor was there any reasonable basis for Mr Waller to believe that he could legitimately refuse to allow Mr Strand and Mr Carroll access to the site in the circumstances.

116    The overwhelming inference was that Mr Waller’s decision to instruct Mr Cooper and Mr Yamin to refuse entry to Mr Strand and Mr Carroll was a knee-jerk reaction to Mr Strand and Mr Carroll’s further request to enter the site. It was driven by little more than ill-founded speculation about Mr Strand and Mr Carroll’s motives. Overall, Mr Waller’s evidence was unimpressive and unpersuasive.

Events at the Loftus Lane site on 10 November 2020

117    On 10 November 2020, Mr Carroll and Mr Strand attended the Loftus Lane site and were permitted entry under s 117 of the Safety Act to investigate suspected contraventions of that Act. During the course of their attendance at the site on 10 November 2020, Mr Carroll and Mr Strand observed a number of suspected safety breaches including: a lack of amenities; a lack of available drinking water; dust prevalent throughout the floors at the site; access and egress issues, including a glass panel that had fallen the previous day and which was blocking a walkway that was the main access point to the site; missing scaffolding components; gaps in the scaffold, with materials and tools scattered on the scaffold, giving rise to a risk of falling objects; materials piled up on scaffolding and large steel balustrades; access to and egress from the scaffold being blocked by materials, including a glass panel; access to the scaffold being quite narrow in one location; poor housekeeping; and impeded access to the toilets.

118    While they were present on the site, Mr Strand and Mr Carroll observed Mr Crino take steps to rectify some of the safety breaches or issues they had identified. In particular, Mr Crino was observed to: arrange for a crane to move the glass panels which were impeding access to the main walkway; direct a worker who was cleaning bricks with acid spray to stop performing that work because the acid spray was landing on others who were working at the same elevation; close a scaffold so that non-functioning toilets could be fixed; contact a fire extinguisher consultant in respect of incorrectly tagged fire extinguishers; and direct the cessation of work until all of the fire extinguishers on the site could be inspected and retagged. Mr Crino’s evidence was that he continued to endeavour to rectify safety issues that had been identified by Mr Strand and Mr Carroll after they left the site that day.

119    As a result of their observations on the site on 10 November 2020, Mr Strand and Mr Carroll suspected that Crookes had contravened, or was contravening: s 19 of the Safety Act, by failing to ensure, so far as was reasonably practicable, the health and safety of workers at the site by failing to provide and maintain a work environment without risks to health and safety; s 20 of the Safety Act, by failing to ensure, so far as was reasonably practicable, as the person with management or control of the Loftus Lane site, the means of entering and exiting the site and anything arising from the site were without risks to the health and safety of any person; reg 40 of the Safety Regulation, by failing to ensure, so far as was reasonably practicable, the layout of the site was maintained to allow access and egress without risks to health and safety and that floors and other surfaces were maintained to allow work to be carried out without risks to health and safety; and reg 41 of the Safety Regulation, by failing to ensure, so far as was reasonably practicable, the provision of adequate facilities for workers in relation to toilets and drinking water, and that such facilities were in good working order and clean, safe and accessible. Those suspected contraventions related to or affected “relevant workers” for the purposes of s 116 of the Safety Act who were working at the Loftus Lane site.

120    Crookes ultimately did not dispute that the suspicions entertained by Mr Strand and Mr Carroll were not reasonable suspicions.

The contravention at the Loftus Lane site on 11 November 2020

121    At or about 7:00am on 11 November 2020, Mr Strand and Mr Carroll attended the Loftus Lane site for the purpose of inquiring into the suspected contraventions that arose from their access to the site on the previous day. After arriving at the Loftus Lane site, Mr Strand and Mr Carroll met Mr Crino. Mr Strand and Mr Carroll presented their permits issued under s 512 of the Fair Work Act and s 134 of the Safety Act. They also gave Mr Crino a notice of entry for the purposes of s 119 of the Safety Act. Mr Crino then permitted Mr Strand and Mr Carroll to enter the Loftus Lane site.

122    Upon entering the Loftus Lane site, Mr Strand and Mr Carroll met with members of the safety committee at the site. There were about seven members of the safety committee, one member for each of the major trades. Mr Strand, Mr Carroll and members of the safety committee then engaged in a safety inspection with Mr Crino, Mr Dymond and other Crookes representatives, including some foremen and supervisors.

123    During the safety inspection, Mr Strand, Mr Carroll and members of the safety committee inspected the amenities room in the basement of the site, which was a room in which the workers could have lunch. Some members of the safety committee observed that the amenities room appeared to be mouldy and to have been affected by leaking water, though some of the Crookes representatives, including Mr Crino, said that they believed that the discoloration was dirt rather than mould. Mr Crino determined that a hygienist should be engaged to assess the amenities area and determine whether it was affected by mould as opposed to dirt. Mr Munroe, who was chair of the safety committee, along with some other members of the safety committee, recommended that the amenities room be shut down until that issue was resolved. Mr Crino ultimately agreed.

124    Mr Crino then identified another amenities area which could possibly be used. The group then inspected the alternate amenities area. The alternate amenities area appeared to be in the process of being built. The work had not, however, been completed. Mr Munroe determined that the alternate amenities area was therefore unsatisfactory and inadequate. He accordingly advised that he would recommend that workers be removed from the site until satisfactory amenities were available. Mr Crino said he would not be removing any workers from the site and that he would call SafeWork.

125    Mr Dymond and Mr Carroll contacted SafeWork and reported the issue concerning the amenities on the site. They were told that an inspector would attend the site.

126    Mr Crino called Mr Stavrinos and told him what had occurred.

127    After SafeWork was contacted, Mr Strand, Mr Carroll, Mr Crino and members of the safety committee went to an area on the ground level of the heritage building at the Loftus Lane site to await the arrival of the SafeWork inspectors. Mr Stavrinos attended that area about 45 minutes later.

128    By the time Mr Stavrinos arrived, most of the work on the site had stopped. There were about 50 to 60 workers standing outside the site and about 20 to 30 workers standing just inside the site. Mr Stavrinos had a discussion with Mr Strand and Mr Carroll. During that conversation, Mr Stavrinos asked Mr Strand and Mr Carroll to go outside onto the street so he could continue to talk to them there. Mr Strand replied that he and Mr Carroll were not leaving the site. Mr Stavrinos again asked them to leave. Mr Strand said they had a legal right to be onsite and refused to leave. Mr Stavrinos said that if Mr Strand and Mr Carroll were not going to listen to him, he would revoke their right of entry. Mr Stavrinos appeared angry and frustrated at the time.

129    Mr Stavrinos then directed Mr Crino to call the police and tell them that the union organisers were trespassing on the site. Mr Crino then called the police and told them, in accordance with Mr Stavrinos’s instructions, that the union organisers were trespassing.

130    About 10 to 15 minutes later, three police officers attended the Loftus Lane site. The police officers spoke to Mr Stavrinos and Mr Crino. They then spoke to Mr Strand and Mr Carroll. Mr Strand and Mr Carroll explained to the police that they were on the site investigating suspected contraventions of the Safety Act. They showed the officers their right of entry permits issued under the Fair Work Act and the Safety Act. Mr Strand and Mr Carroll also told the officers that they were waiting for SafeWork to attend as there was an issue about the amenities on the site. One of the police officers told Mr Stavrinos that she understood that Mr Strand and Mr Carroll had a legal right to be onsite, but requested that Mr Strand and Mr Carroll wait until the SafeWork inspectors arrived before pursuing their inquiries into the suspected safety contraventions. Mr Strand and Mr Carroll agreed to do that.

131    About two and a half hours after the police officers had spoken to Mr Strand and Mr Carroll, two SafeWork inspectors arrived at the site. During that time, Mr Strand and Mr Carroll were required to wait at the ground level of the heritage building on the site.

132    Discussions occurred between the SafeWork inspectors, Mr Stavrinos, Mr Crino, Mr Strand and Mr Carroll. The SafeWork inspectors, safety committee members, Mr Crino, Mr Dymond, Mr Strand and Mr Carroll all then inspected the amenities room.

133    Mr Stavrinos’s evidence was that, at the time he called the police, he believed that Mr Strand and Mr Carroll were trespassers. Mr Stavrinos said that he was aware at the time that, as permit holders, Mr Strand and Mr Carroll had a statutory right to be on the site. He believed, however, that because Mr Strand and Mr Carroll had failed to follow his instructions, he was able to revoke their permission to be onsite. He said that it was on that basis that he believed that Mr Strand and Mr Carroll were trespassers. Mr Stavrinos also said that he believed that Mr Strand and Mr Carroll were causing disruption on the site. The basis of that belief appeared to be that, when he arrived at the site, he observed a large number of workers “milling around” on the ground floor of the site. He believed that those workers had been told that they could not work because there were no amenities on the site.

134    Mr Stavrinos’s evidence about his belief that he could revoke Mr Strand’s and Mr Carroll’s right to be on the site was far from persuasive or compelling. His evidence concerning the source of that belief was particularly vague. He was unaware at the time of any statutory right that he had to revoke the right that Mr Strand and Mr Carroll had, as permit holders, to remain on the site. He also made no attempt to seek the advice or counsel of any other manager or officer of Crookes about his right to revoke Mr Strand’s and Mr Carroll’s right to be on the site.

135    Mr Stavrinos’s evidence that Mr Strand and Mr Carroll were not following his instructions in any relevant sense was also far from satisfactory. It is true that Mr Strand and Mr Carroll refused to follow Mr Stavrinos’s instructions to leave the site, however Mr Stavrinos plainly knew that Mr Strand and Mr Carroll were permit holders and were therefore permitted to enter and remain on the site to inquire into suspected contraventions relating to the absence of satisfactory amenities on the site. Mr Stavrinos appeared to claim that Mr Strand and Mr Carroll failed to follow his instruction not to cause disruption on the site, however it was far from clear from his evidence that he actually gave that instruction, let alone that he had any reasonable basis for believing that Mr Strand’s and Mr Carroll’s presence was causing a disruption. It is true that workers had stopped working on the site. That was, however, a result of the issue that had arisen about the availability of acceptable amenities on the site. Mr Stavrinos had no reasonable basis for believing that the issue about the amenities was not a legitimate issue, let alone that the ongoing presence of Mr Strand and Mr Carroll for the purpose of investigating that issue could somehow be said to involve illegitimate disruption.

136    The overall impression gained from the evidence as a whole was that Mr Stavrinos’s actions were the product of an ill-tempered and ill-considered response to the issue that had arisen in respect of the adequacy of the amenities and the resulting disruption to work onsite that day. He had no reasonable basis for his apparent belief that he had a right to direct Mr Strand and Mr Carroll to leave the site, no reasonable basis for telling the police, through Mr Crino, that Mr Strand and Mr Carroll were trespassers, and no reasonable basis for hindering or obstructing the exercise by Mr Strand and Mr Carroll of their rights as permit holders.

137    Mr Crino’s evidence was that, when he called the police, he did not believe that Mr Strand and Mr Carroll were trespassing because he had allowed them onto the site. He told the police that they were trespassers because he was following the instructions of Mr Stavrinos, a senior manager.

The contravention at the Loftus Lane site on 12 November 2020

138    As at 12 November 2020, Mr Strand and Mr Carroll suspected, based on the events of the previous day, that Crookes had contravened: s l9 of the Safety Act by failing to ensure, so far as was reasonably practicable, the health and safety of workers who were engaged by, or whose activities were influenced or directed by, Crookes at the Loftus Lane site while those workers were at work at the Loftus Lane site; and reg 4l of the Safety Regulations by failing to ensure, so far as was reasonably practicable, the provision of adequate facilities for the welfare at work of workers carrying out work at the Loftus Lane site. Those suspected contraventions related to or affected “relevant workers” for the purposes of s 116 of the Safety Act who were working at the Loftus Lane site.

139    Crookes ultimately did not dispute that Mr Strand’s and Mr Carroll’s suspicions were reasonable in the circumstances.

140    At about 7:00am on 12 November 2020, Mr Strand and Mr Carroll attended the Loftus Lane site for the purpose of investigating the suspected contraventions. After arriving at the site, Mr Strand and Mr Carroll approached the front entrance to the site where Mr Munroe, Mr Crino and Mr Bombardiere were standing. Mr Strand told Mr Crino that he and Mr Carroll sought to enter the site to see whether the issue with the amenities room had been resolved. Mr Crino said he was not letting Mr Strand and Mr Carroll onto the site.

141    Mr Carroll then showed Mr Crino and Mr Bombardiere a notice of entry he had prepared for the purposes of s 119 of the Safety Act. Mr Strand and Mr Carroll also showed Mr Bombardiere a copy of their entry permits issued under the Fair Work Act and the Safety Act. Mr Carroll asked Mr Crino if he was denying them entry under s 117 of the Safety Act. Mr Crino replied that he was, and that SafeWork had given him an improvement notice which he was acting on.

142    Mr Carroll then contacted SafeWork and reported that he and Mr Strand were being prevented from entering the Loftus Lane site, and requested the attendance of an inspector.

143    After Mr Crino told Mr Strand and Mr Carroll that they would not be permitted onto the site, Mr Carroll told Mr Munroe that he could invite him and Mr Strand onto the site as he was a “HSR”. A “HSR” is a health and safety representative. Mr Crino then instructed Mr Munroe that, as a Crookes employee, he was not to invite Mr Strand and Mr Carroll onto the site for consultation.

144    Mr Strand and Mr Carroll then sought to enter the Loftus Lane site via a turnstile, but were blocked by a security guard. Mr Strand and Mr Carroll waited outside the Loftus Lane site for the SafeWork inspectors to attend.

145    At or about 9:30am, two SafeWork inspectors attended the Loftus Lane site. Mr Strand and Mr Carroll showed the inspectors the notice of entry under s 119 of the Safety Act. The inspectors said that they believed that Mr Strand and Mr Carroll had a reason to enter the site and that they would speak to representatives of Crookes. The two inspectors then spoke with Mr Crino and other Crookes supervisors.

146    It would appear that the SafeWork inspectors were unable to persuade Crookes to permit Mr Strand and Mr Carroll to enter the site. Mr Strand and Mr Carroll were not able to enter the Loftus Lane site that day.

147    Mr Crino’s evidence was that he refused to permit Mr Strand and Mr Carroll to enter the site on 12 November 2020 because he believed that there was no need for them to be onsite given that SafeWork had been contacted and were involved. Mr Crino also said that he had spoken with Mr Stavrinos about the issue on the evening of 10 November 2020. During that discussion, Mr Stavrinos told him that, because SafeWork was involved, Mr Crino should not let Mr Strand and Mr Carroll onto the site if they sought access the following day.

148    Mr Crino’s evidence that he believed that he could refuse permit holders entry to the site once SafeWork was involved was unimpressive and lacked credibility. While he claimed that his belief was based on some training he had received, he was unable to accurately recall when he had attended the training, or who the person who delivered the training was, or exactly what was said by that person that caused him to form the belief in question. When pressed, Mr Crino appeared to suggest that it was someone from Crookes who had said that a permit holder could be refused access once a regulator was involved.

149    Mr Stavrinos’s evidence was also that he believed that, once SafeWork were involved, Mr Strand and Mr Carroll could be refused entry to the site, even though they were permit holders. He also claimed that he derived that belief from training he had received while employed at Crookes. Mr Stavrinos’s evidence concerning what was said on that topic at the training he had attended was, like Mr Crino’s evidence on that topic, very vague and unimpressive. The most that he could say is that he attended some training in the early part of 2020, though he could not identify the trainer or what was said on the topic of whether access could be denied to permit holders if SafeWork had become involved.

150    What is particularly telling is that, when Mr Stavrinos and Mr Crino turned their minds to the issue on the evening of 11 November 2020, they made no attempt to speak with or seek advice from any other Crookes manager with expertise or experience in the area to check whether their belief that they had the right to refuse entry to permit holders once Fair Work was involved was accurate or correct.

151    In all the circumstances, the attempt by Mr Stavrinos and Mr Crino to explain the decision to refuse access to Mr Strand and Mr Carroll on 12 November 2020 was unimpressive and unpersuasive. Their evidence lacked credibility and appeared to be little more than a misguided and self-serving attempt to justify what was fairly obviously a decision taken without due regard being given to legalities.

PRINCIPLES – FIXING APPROPRIATE PECUNIARY PENALTIES

152    Subsection 546(1) of the Fair Work Act empowers the Court to order a person to pay a pecuniary penalty that the Court considers “appropriate” in respect of a contravention of a civil penalty provision. Subsection 546(2) provides that the pecuniary penalty imposed must not exceed the relevant maximum penalty specified in s 539(2) of the Fair Work Act.

153    How does the Court go about determining the “appropriate” penalty to impose for a contravention of a civil penalty provision?

154    For many years, judges of this Court, both at first instance and in the Full Court, have adapted and applied the principles which govern criminal sentencing to the task of fixing an appropriate pecuniary penalty for a contravention of a civil penalty provision, both in the Fair Work Act and in other statutory civil penalty regimes. The authorities are too numerous to mention. Those authorities must, however, now be approached with considerable caution in light of the relatively recent decision of the High Court in Australian Building and Construction Commissioner v Pattinson (2022) 175 ALD 383; [2022] HCA 13.

155    In Pattinson, the majority (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) held (at [10]) that the power to impose a civil penalty “is not subject to constraints drawn from the criminal law” and (at [14]) that there are “limits to the transplantation of principles” from the criminal law to the fixing of civil or pecuniary penalties. That is because there are “basic differences” between criminal prosecutions and civil penalty proceedings: Pattinson at [14], citing Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 13 (Agreed Penalties Case) at [51].

156    In particular, unlike the imposition of a sentence for a crime, a civil penalty is imposed primarily, if not solely, for the purpose of deterrence: Pattinson at [15]; Agreed Penalties Case at [55]. Deterrence is the “principal and indeed only object” of the imposition of a civil penalty and “[r]etribution, denunciation and rehabilitation have no part to play”: Pattinson at [16] referring to Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2018) 264 FCR 155; [2018] FCAFC 97 at [19].

157    It is somewhat unclear why it is said that the only purpose of imposing a pecuniary penalty is to deter. The analysis rarely extends beyond pointing out that that is what French J, sitting as a single judge of this Court, stated in Trade Practices Commission v CSR Limited (1991) ATPR ¶41,076 at 52, 152. As Edelman J somewhat glumly conceded in Pattinson (at [80]), however, the proposition has now been so emphatically endorsed and embraced by the High Court that there is little point in questioning it.

158    The fact that the purpose of retribution – the imposition of a punishment that “fits the crime” and is proper because it is what the offender “deserves” – has no part to play in relation to the imposition of a pecuniary penalty led the majority in Pattinson to conclude that the principle of proportionality in the criminal law – that a sentence must not be disproportionate to the seriousness of offending for which the offender is to be sentenced (Veen v The Queen [No 2] (1988) 164 CLR 465 at 472-473) – does not apply when it comes to fixing a civil or pecuniary penalty: Pattinson at [39]-[40], [42]. The introduction of the principle of proportionality to the fixing of a pecuniary penalty would, it was said, undermine “the primary significance of deterrence”: Pattinson at [42]-[43].

159    While the majority in Pattinson held that the criminal law principle of proportionality has no role to play in the fixing of a pecuniary penalty, it nevertheless appeared to be accepted that a court imposing a pecuniary penalty must nevertheless ensure that the penalty which is imposed “strikes a reasonable balance between deterrence and oppressive severity”: Pattinson at [40]-[41], referring to NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 293. The majority also appeared to accept that the object of deterrence does not “give licence to impose a disproportionate or oppressive penalty”: Pattinson at [41], citing with approval Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 at [152]. It would seem, however, that a pecuniary penalty which is seen to be necessary to achieve deterrence cannot be considered to be relevantly disproportionate or oppressive. It would appear that a pecuniary penalty can only be said to be relevantly disproportionate or oppressive if it is greater than is necessary to achieve the object of deterrence: NW Frozen Foods at 293; Pattinson at [40].

160    It also follows from what the majority said in Pattinson that a court should not approach the imposition of a pecuniary penalty by considering or having regard to what penalty “fits the contravention”, or what penalty the contravener “deserves”, referable to the seriousness of the contravention in question. The seriousness of the contravening conduct is only relevant to determining what penalty is required to achieve the object of deterrence.

161    It would appear to follow that, because deterrence is the only purpose of a pecuniary penalty, a large pecuniary penalty may be appropriate for a relatively minor offence if that large penalty is considered necessary to deter. Conversely, a small pecuniary penalty may be an appropriate penalty for a serious contravention if that small penalty is all that is required to deter: cf Edelman J in Pattinson at [75]-[79]. It would also seem that, despite being called a pecuniary “penalty”, a pecuniary penalty is not intended to penalise or punish a contravener for engaging in the contravening conduct.

162    How, then, does the Court go about determining the appropriate penalty to impose to secure the objects of deterrence, specific and general?

163    Judges in this and other courts have, in determining what is an appropriate penalty for a contravention, typically had regard to a number of “factors”. Those factors generally include matters pertaining to the nature and character of the contravening conduct (such as the circumstances in which the conduct took place, the deliberateness of the contravention and the period over which it extended), as well as matters pertaining to the character of the contravener (such as whether the contravener has shown a disposition to co-operate with the relevant regulator and, where the contravener is a company, the size of the company and whether the contravention arose out of the conduct of senior management or at a lower level): see Pattinson at [18]-[19], referring to CSR at 52 and 152-153. There is, however, no “rigid catalogue of matters for attention”: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8 at [91], cited with approval in Pattinson at [19].

164    More importantly, it would seem that the factors that have typically been considered in the authorities are only relevant to the extent that they relate to deterrence: Pattinson at [44]. It follows, therefore, that a factor such as the seriousness of the contravention indicated by, for example, the fact that it was deliberate, concealed and carried out by senior management, is relevant only to the extent that it relates to deterrence. A contravention which is deliberate, concealed and carried out by senior management is likely in many cases to suggest that a higher penalty is necessary to provide effective deterrence, both specific and general: see, for example, Trade Practices Commission v Stihl Chain Saws (Aust.) Pty Ltd (1978) ATPR ¶40-091 at 17, 896; Pattinson at [57]. The fact that a contravention was deliberate, concealed and carried out by senior management does not, however, indicate that a higher penalty is necessary simply because such a penalty is necessary to ensure that the contravener gets his, her or its “just deserts”.

165    The sentencing principles that have typically been adapted and applied in the authorities in respect of fixing pecuniary penalties include those that apply when a course of conduct is involved and where sentences for multiple offences are to be imposed, in particular the “totality” principle. The authorities in the criminal sentencing context would tend to suggest that those principles are closely associated with the principle of proportionality. The majority in Pattinson, however, held that the principles relating to course of conduct and totality are “not so closely tied to retribution as to be incompatible with a civil penalty regime focussed on deterrence” and that they may accordingly be employed in that context as “analytical tools”: Pattinson at [45]. What that would appear to mean is that, where penalties for multiple offences are to be imposed, the Court may apply the principle of totality as an analytical tool so as to ensure that the overall penalty is not oppressive or disproportionate in the sense that it is greater than necessary to achieve the object of deterrence. The same can be said in relation to the principles relating to course of conduct.

166    Authorities in this and other courts in relation to the imposition of pecuniary penalties have also typically considered that the maximum penalty for the contravention in question is a relevant consideration in fixing an appropriate penalty. In Pattinson, however, the majority eschewed the approach taken to maximum penalties in the criminal context, which, among other things, invites “comparison between the worst possible case and the case before the court at the time”: cf Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]. Such an approach was said to be “reminiscent of retributive notions of ‘just deserts’”: Pattinson at [51].

167    According to the majority in Pattinson, in a civil penalty case, the maximum penalty does not constrain the exercise of the discretion “beyond requiring ‘some reasonable relationship between the theoretical maximum and the final penalty imposed’”: Pattinson at [55], citing with approval Reckitt Benckiser at [155]-[156]. That rather begs the question: what is a “reasonable relationship” in that context? The answer, it seems, is that the reasonableness of the relationship between the maximum penalty and the penalty imposed is determined having regard to the fact that the maximum penalty is not intended to be reserved for the “worst possible case”, but rather is intended “to be imposed in respect of a contravention warranting the strongest deterrence within the prescribed cap”: Pattinson at [58]. According to the majority, “there is no warrant for the court to ascertain the extent of the necessity for deterrence by reference exclusively to the circumstances of the contravention”: Pattinson at [58].

168    Ultimately, the central consideration in fixing an appropriate pecuniary penalty is to ensure that “the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 at [62]; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 at [66]; Pattinson at [17]. The “theory” of s 546 of the Fair Work Act which the Court must give effect to is that “the financial disincentive involved in the imposition of a pecuniary penalty will encourage compliance with the law by ensuring that contraventions are viewed by the contravener and others as an economically irrational choice”: Pattinson at [66].

THE APPROPRIATE PENALTIES to impose

169    The central issue in fixing the appropriate penalties in this case, therefore, is to determine what penalties will suffice to encourage compliance with the relevant provisions of the Fair Work Act by Crookes (specific deterrence) and others who may engage in similar conduct in the future (general deterrence). The penalties must be such that they will not be regarded by Crookes and others as being “an acceptable cost of doing business”. There must also be a reasonable relationship between the penalties imposed and the “theoretical” maximum penalties, bearing in mind that the maximum penalties are intended to be imposed in respect of contraventions warranting the strongest deterrence. The maximum penalty for the contravention by Crookes of s 501 of the Fair Work Act at the Opera Quays site on 26 May 2020 is $63,000. The maximum penalty in respect of each of the other contraventions is $66,000.

170    The exercise of fixing appropriate pecuniary penalties for the contraventions in question should not be approached as if it were a scientific or mathematical exercise. It essentially involves weighing and balancing all the relevant facts and circumstances.

171    The following features or circumstances of the contravening conduct of Crookes are relevant to determining the appropriate penalty to secure deterrence, general and specific, in this case.

172    First, it is relevant to have regard to the nature and character of the provisions of the Fair Work Act that were contravened.

173    Sections 501 and 502 of the Fair Work Act are part of a statutory scheme which aims to balance the interests of occupiers of premises, employers, unions and employees in respect of the rights of entry to premises: Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15; [2015] FCAFC 56. One of the obvious objectives of that scheme is to secure the health and safety of workers and workplaces. As Tracey J observed in Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd (No 2) [2017] FCA 1237 at [43], “the protection of workers’ safety on building sites is a highly important function and breaches of provisions such as s 501 have the potential fundamentally to undermine workers’ safety”.

174    Contraventions of ss 501 and 502 of the Fair Work Act by an employer are, by their very nature, objectively serious, particularly where entry to the premises was sought to investigate suspected contraventions relating to the safety of workers and the workplace in question. As a general proposition, higher penalties are likely to be appropriate to secure effective deterrence, particularly general deterrence, in circumstances where the mischief to which the civil penalty provision in question is directed is serious. In the case of ss 501 and 502 of the Fair Work Act, it “must be made clear to employers that they are not entitled to deny access to their premises to union officials who are exercising lawful rights of entry under the [Fair Work] Act”: Construction, Forestry, Mining and Energy Union v Safety Glass Pty Ltd [2010] FCA 989 at [23].

175    Second, the contraventions of ss 501 and 502 in question in this case came about largely as a result of the decisions and actions of relatively senior managers at Crookes, Mr Waller and Mr Stavrinos. Both Mr Waller and Mr Stavrinos were employed by Crookes as Construction Managers, which was a position relatively high in the management hierarchy.

176    The evidence ultimately revealed that it was Mr Waller who was the relevant decision-maker responsible for the contraventions at the Opera Quays site in May and July 2020. It was readily apparent that Messrs Diversi, Yamin and Cooper were really just acting in accordance with Mr Waller’s instructions or directions when they refused to permit Messrs Strand, Kirby and Carroll to enter the Opera Quays site.

177    As for the contraventions at the Loftus Lane site, it was Mr Stavrinos who hindered or obstructed Mr Strand and Mr Carroll. Mr Crino was simply acting on the instructions of Mr Stavrinos when he called the police. The evidence also ultimately revealed that Mr Stavrinos was the effective decision-maker in respect of the decision to refuse to allow Mr Strand and Mr Carroll to enter the Loftus Lane site on 12 November 2020. Mr Crino was effectively acting on the instructions of Mr Stavrinos.

178    The involvement of senior management in the contraventions would tend to suggest that a higher penalty is required to achieve effective deterrence.

179    Third, the conduct of both Mr Waller and Mr Stavrinos that gave rise to the contraventions was relevantly deliberate, though perhaps not entirely contumelious or contumacious. This again would tend to suggest that a higher penalty is required to secure effective deterrence.

180    As for Mr Waller, as one might expect given his position, Mr Waller knew that Messrs Strand, Kirby and Carroll were permit holders when he instructed Messrs Diversi, Yamin and Cooper to refuse them entry. He also knew, in general terms, that, as permit holders, Messrs Strand, Kirby and Carroll had the right to enter the Opera Quays site for the purpose of inquiring into contraventions which they reasonably suspected had or were occurring on the site. He also knew that Crookes did not have the right to refuse Messrs Strand, Kirby and Carroll entry to the site in those circumstances.

181    It is true that Mr Waller claimed in his evidence that he mistakenly believed, based on the training that he had apparently received, that it was up to him to decide whether or not the CFMMEU officials reasonably suspected that contraventions had or were occurring on the site. It is equally true that Mr Waller claimed in his evidence that he believed that the CFMMEU officials did not reasonably suspect that contraventions had or were occurring on the site and that they were instead motivated by industrial concerns. As discussed in detail earlier, however, Mr Waller’s evidence concerning those beliefs was far from convincing or persuasive. He had, for the most part, no reasonable basis for forming those beliefs and his actions somewhat belied the genuineness of those beliefs. He made no attempt to seek the advice or counsel from others about his right to refuse entry to the permit holders, made no genuine attempt to seek the advice or counsel of Crookes’ own work health and safety officers or managers about the safety issues raised by the CFMMEU officials, and made no genuine attempt to engage, or cause others to engage, with the CFMMEU officers about the nature and authenticity of their suspicions.

182    It may be accepted that the July 2020 contraventions, at least, occurred in the context of heightened industrial tensions arising from the position of the Eastside workers and their replacement by workers from Prestige. The overwhelming and overriding inference, however, is that Mr Waller determined to instruct Mr Yamin and Mr Cooper to refuse entry to the CFMMEU permit holders as a result of those industrial tensions without genuinely turning his mind to whether the permit holders’ suspicions concerning safety contraventions were genuine or to whether he had the right to refuse the permit holders access to the site. The overwhelming inference is that Mr Waller’s actions were, at best, a knee-jerk and ill-considered response to his perceptions of industrial disharmony. He was, at best, reckless as to whether he had the right to do what he did.

183    As for Mr Stavrinos, he well knew, on 11 November 2020, that Mr Strand and Mr Carroll, as permit holders, had the right to enter and remain on the Loftus Lane site. While he claimed in his evidence that he believed that he had the right to revoke the CFMMEU officials’ right to be on the site because they were not following his instructions, for the reasons given earlier his evidence in that regard was far from credible. His evidence as to the source of his belief that he had a right to revoke was, at best, vague and his evidence about Mr Strand and Mr Carroll not following his instructions was self-serving, unimpressive and far from compelling.

184    As for the contravention on 12 November 2020, Mr Stavrinos’s evidence concerning the source of his supposed belief that he could refuse entry to permit holders once SafeWork inspectors were involved was equally self-serving, unimpressive and unpersuasive. The overwhelming and overriding inference was again that Mr Stavrinos determined to instruct Mr Crino to refuse to allow the CFMMEU permit holders access to the site without genuinely turning his mind to whether he had the right to do so. As was the case with Mr Waller, Mr Stavrinos’s actions were ill-considered and he was, at the very best, reckless as to whether he had the right to do what he did.

185    The actions of Mr Stavrinos must also be considered in light of the fact that, by November 2020, the CFMMEU had already commenced proceedings against Crookes in respect of the May and July 2020 contraventions at the Opera Quays site. While Crookes initially defended those proceedings, it is somewhat surprising that the existence of the proceedings did not focus Mr Stavrinos’s mind on the rights of permit holders to access premises and the potential repercussions of refusing access to, or otherwise hindering, permit holders.

186    While the real decision-makers in respect of the contraventions were Mr Waller, in the case of the May and July 2020 contraventions, and Mr Stavrinos, in the case of the November 2020 contraventions, mention should also be made of the conduct of Mr Yamin and Mr Cooper, in respect of the May and July 2020 contraventions, and Mr Crino, in the case of the November 2020 contraventions. The evidence of each of those Crookes managers was also less than impressive or persuasive.

187    As discussed in detail earlier, Mr Yamin and Mr Cooper sought to justify or explain their conduct as being the product of their erroneous beliefs that the actions of the CFMMEU permit holders were industrially motivated and that they were able to refuse access to the permit holders on that basis. It readily became apparent from the evidence, however, that they had no reasonable basis for entertaining those beliefs and did not reasonably or genuinely turn their minds to whether the permit holders reasonably suspected that contraventions had occurred or were occurring on the site, or to whether they had the right to refuse to allow the permit holders to access the site in the circumstances. It is clear that they were simply acting on the instructions of Mr Waller.

188    Much the same can be said in respect of Mr Crino. The overwhelming inference is that he did not genuinely turn his mind to whether he had the right to refuse to allow the permit holders to access the site. He simply acted on the instructions of Mr Stavrinos.

189    In all the circumstances, the attempts by Messrs Waller, Cooper, Yamin, Stavrinos and Crino to explain or justify their actions were unimpressive, and did not reflect particularly well on Crookes and its attitude or response to the contraventions in question. The evidence of each of those men was, on the whole, unimpressive and lacked credibility.

190    Fourth, it may be accepted that the five contraventions were relatively isolated occurrences. The evidence suggested that Crookes had permitted CFMMEU permit holders to access building sites they occupied, including the Opera Quays site and the Loftus Lane site, on a number of occasions both before and after May and July 2020 and November 2020. That said, as has already been noted, the November 2020 contraventions occurred at a time when the contraventions concerning the May and July 2020 were already before the Court.

191    As for Crookes’ subjective circumstances, the considerations relevant to specific and general deterrence include the following.

192    First, there was no evidence to suggest that Crookes was a frequent or habitual contravener of industrial laws, in particular those relating to allowing permit holders to access building sites it occupied. As already noted, the contraventions were relatively isolated. There could be no suggestion that Crookes was a wilful recidivist. Indeed, there was no evidence that Crookes had previously contravened any provision of the Fair Work Act, let alone ss 501 and 502 of the Fair Work Act. The absence of any previous contraventions reflects well on Crookes and tempers the need for a higher penalty to secure specific deterrence.

193    Second, there was little, if any, indication of genuine contrition or remorse on the part of Crookes. There was certainly no evidence which could be fairly characterised as an apology or statement of genuine regret or repentance by senior officers or managers of Crookes. Indeed, as has already been noted, much of the evidence adduced on behalf of Crookes could fairly be characterised as unpersuasive attempts to explain or justify the actions of the employees or managers in question. Each of the employees or managers did, however, ultimately concede in their evidence that they now recognise that their actions were wrong.

194    Crookes also initially defended the proceedings and it is somewhat difficult to avoid the inference from the evidence that the belated change in plea was somewhat reluctant and begrudging. The November 2020 contraventions occurred at a time when the May and July 2020 contraventions were already before the Court, albeit the proceeding was being defended at that point.

195    The absence of any apparent genuine contrition or remorse on the part of Crookes did not reflect well on Crookes and tended to suggest that higher penalties were likely to be required to secure effective specific deterrence.

196    Third, the evidence also tended to suggest that Crookes has not taken any significant and genuine positive steps to ensure that the contraventions are not repeated. There was an attempt, largely unsuccessful, to shift some of the blame for the contraventions onto the training that had been given to Crookes’ managers. As has already been discussed, the evidence adduced in that regard was on the whole unimpressive and lacked credibility.

197    Even if that evidence was credible, however, it would not greatly assist Crookes. That is because it would tend to suggest that Crookes’ training of its employees in the past has been deficient and yet the evidence indicated that Crookes had done little, if anything, to remedy or rectify that situation. Crookes had not instigated any formal training or retraining of its managers following the contraventions. While some of the managers referred in their evidence to certain discussions that had occurred following the contraventions, that evidence was far from compelling or impressive. The same could be said of the evidence to the effect that the COVID-19 pandemic had somehow stymied any formal training or retraining following the contraventions. It is also relevant to note that none of the officers involved in the contraventions had been sanctioned or disciplined in any meaningful way.

198    The fact that Crookes appears to have taken no genuine or positive steps in response to the contraventions so as to ensure they are not repeated again does not reflect well on Crookes and suggests that higher penalties are required to secure effective specific deterrence.

199    Fourth, there was a paucity of evidence in relation to Crookes’ size, financial position and resources. Nevertheless, such evidence as there was in respect of Crookes tended to suggest that it was a large and well-resourced building and construction company. The building projects at both the Opera Quays site and the Loftus Lane site were very substantial. Mr Waller’s evidence was that Crookes would typically have somewhere between 45 and 53 projects afoot at any given time. Many of those projects were valued at tens, if not hundreds, of millions of dollars. Crookes did not adduce any evidence to counter the obvious inference that it was a very large and well-resourced company. There was certainly no evidence to suggest that Crookes would have any difficulty in paying any pecuniary penalty that may be imposed.

200    The size and resources available to a corporate contravener are relevant considerations to the fixing of an appropriate pecuniary penalty. As a general proposition, the larger the contravener and the more resources available to it, the larger the penalty may need to be to ensure effective specific deterrence: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; [2005] FCA 265 at [39]; Australian Competition and Consumer Commission v Apple Pty Limited [2012] FCA 646 at [38].

201    Fifth, Crookes should be given some credit for eventually conceding that, by the actions of its employees, it contravened the Fair Work Act and some credit for facilitating the hearing of the proceedings concerning penalty by agreeing to the basic facts relating to the contraventions. It should perhaps be noted, however, that ultimately the penalty hearing proceeded over a number of days given the approach taken by the parties to certain factual issues. It is, therefore, somewhat doubtful that it could be said that the proceedings were significantly shortened.

202    Overall, the considerations to which reference has just been made relating to the nature and circumstances of the contraventions, together with those that involve the subjective features of the contravener, suggest that relatively significant and substantial pecuniary penalties are required to secure the objectives of specific and general deterrence. On balance, the following pecuniary penalties are considered to be appropriate in the circumstances.

203    A pecuniary penalty of $25,000 should be imposed in respect of the contravention which occurred on 26 May 2020. This was perhaps the least serious contravention. It resulted in the permit holders’ access to the Opera Quays site being delayed for no more than 60 minutes. It was nonetheless a relatively serious contravention of an important provision in the statutory scheme involving access to worksites for purposes including, relevantly, investigating suspected contraventions involving the safety of the workplace.

204    A pecuniary penalty of $40,000 should be imposed in respect of the contravention which occurred on 27 July 2020. This contravention was more serious than the 26 May 2020 because it resulted in the permit holders being excluded from accessing the Opera Quays site altogether. While the contravention occurred in the context of some industrial disharmony, for the reasons given in detail earlier, that circumstance does not adequately explain or significantly mitigate the contravention.

205    A pecuniary penalty of $45,000 should be imposed in respect of the contravention which occurred on 28 July 2020. This was in some respects a more serious contravention than the contravention of the previous day as the relevant Crookes managers had time to consider, reflect on and take advice in respect of the exclusion of the permit holders on the previous day. The circumstances of the contravention revealed a degree of intransigence and recalcitrance on the part of Crookes. It again resulted in the permit holders being completely excluded from accessing the site.

206    A pecuniary penalty of $30,000 should be imposed in respect of the contravention which occurred on 11 November 2020. Like the May 2020 contravention on the Opera Quays site, this contravention is somewhat less serious because it ultimately only resulted in the permit holders being delayed for a period of two and a half hours while the police were called and SafeWork inspectors arrived at the site. It was, however, still a fairly serious contravention in all the circumstances. The fact that it occurred at a time when the May and July 2020 contraventions at the Opera Quays site were before the Court suggests a degree of intransigence and recalcitrance on the part of Crookes.

207    A pecuniary penalty of $50,000 should be imposed in respect of the contravention which occurred on 12 November 2020. Like the July 2020 contraventions at the Opera Quays site, this was a serious contravention that resulted in the permit holders being excluded from the site altogether. Mr Stavrinos’s explanations for his determination to refuse access to the site were unpersuasive, all the more so in light of the fact that the May and July 2020 contraventions were already before the Court at the time.

208    The pecuniary penalties imposed in respect of the five contraventions add up to $190,000. To the extent that the principle of totality applies as a tool of analysis in the civil penalty context, a total penalty of $190,000 could not be said to be oppressive or disproportionate in the sense that it could be seen to be greater than is necessary to achieve the object of deterrence. For all the reasons that have essentially already been given, the object of deterrence, both specific and general, warrants the imposition of a total penalty of $190,000 in all the circumstances. The overall penalty and each of the individual penalties bear a reasonable relationship to the theoretical maximum penalties.

209    Subsection 546(3) of the Fair Work Act provides that the Court may order that the pecuniary penalty, or a part of the pecuniary penalty, be paid to the Commonwealth, or a particular organisation, or a particular person. The usual order in cases such as this, where the applicant is not a regulator or the Commonwealth, is that the penalty be paid to the successful applicant: Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336; [2016] FCAFC 4 at [101]. The CFMMEU submitted that there was no reason to depart from that usual order. Crookes did not suggest otherwise. It follows that the pecuniary penalties should be paid to the CFMMEU.

DECLARATORY RELIEF

210    The CFMMEU sought declaratory relief in respect of the contraventions. Crookes did not oppose the making of declarations. The principles that apply in respect of the grant of declaratory relief in cases such as this are well settled. The following summary of the principles is taken primarily from Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 3) [2018] FCA 1395 at [74]-[76].

211    The fact that the parties have agreed that a declaration of contravention should be made does not relieve the Court of the obligation to satisfy itself that the making of such a declaration is appropriate: Agreed Penalties Case at [59]; Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) (2011) 279 ALR 609; [2011] FCA 382 at [7] (overturned by the Full Court in Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 on a separate issue). It is not the role of the Court to merely rubber stamp orders that are agreed as between a regulator and a person who has admitted contravening a public statute: Re Chemeq Ltd; Australian Securities and Investments Commission v Chemeq Ltd (2006) 234 ALR 511; [2006] FCA 936 at [100]; Agreed Penalties Case at [31], [48], [58]. There is no reason why the same principle would not apply where the applicant is not a regulator.

212    The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth): Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437-438 (per Gibbs J, citing Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448); Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 99 (per Sheppard J). Before making a declaration, the Court should be satisfied that the question is real, not hypothetical or theoretical, that the applicant has a real interest in raising the issue, and that there is a proper contradictor: Forster at 437-438.

213    Declarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court’s disapproval of the contravening conduct, vindicate a regulator’s claim that the respondent contravened the provisions, assist a regulator to carry out its duties, and deter other persons from contravening the provisions: Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (2007) ATPR ¶42-140; [2006] FCA 1730 at [6], and the cases there cited; Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53; [2003] HCA 75 at [95]. There is again no reason why this principle would not apply where the applicant is not a regulator, particularly where, as here, the applicant is a major industrial association.

214    In all the circumstances, this is an appropriate case for the making of the declarations sought by the CFMMEU in respect of the contraventions.

CONCLUSION AND DISPOSITION

215    Declarations in the form sought by the CFMMEU should be made in respect of the contraventions by Crookes of ss 501 and 502 of the Fair Work Act. Pecuniary penalties orders totalling $190,000 should be made in respect of those contraventions. Crookes should pay the pecuniary penalties to the CFMMEU.

Associate:

Dated:    26 August 2022