Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Pacific Highway Upgrade Case) [2023] FCA 202

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    Section 500 of the Fair Work Act 2009 (Cth) (FW Act) provides that a holder of a permit to enter premises for purposes related to their representative role under the FW Act and under State or Territory occupational health and safety laws must not intentionally hinder or obstruct any person, or otherwise act in an improper manner in exercising or seeking to exercise their rights of entry.

2    In a judgment delivered on 23 May 2022, in proceedings instituted by the Australian Building and Construction Commissioner, the primary judge found that the Construction, Forestry, Maritime, Mining and Energy Union and two of its officials, Dean Rielly and Paul Fitzpatrick, contravened s 500 by intentionally hindering or obstructing the completion of a concrete pour at a project for upgrading a section of the Pacific Highway about 10 kilometres south of Grafton in NSW. This is an appeal from that judgment and all consequential orders. The consequential orders include penalties imposed at a later date.

3    While the original proceedings were brought by the Commissioner, the respondent to the appeal is the Fair Work Ombudsman. That situation comes about because of the passage of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act), which, among other things, provided for the abolition of the Australian Building and Construction Commission and the office of Commissioner. Clause 323(1) of Sch 1 Pt 3 (Div 5) of the Amending Act provides that:

If any civil proceedings to which the Australian Building and Construction Commissioner or an inspector is a party were pending in a court immediately before the transition time:

(a)    The Fair Work Ombudsman is, after the transition time, substituted for the Australian Building and Construction Commissioner or the inspector as a party to those proceedings; and

(b)    if the proceedings are for an order relating to a contravention of a civil remedy provision—the Fair Work Ombudsman is taken to be an authorised applicant for the order.

4    The “transition time” is defined in cl 318 of Sch 1 Pt 3 (Div 5) to mean the commencement of Division 1. Division 1 commenced on 7 December 2022 (Amending Act, s 2(1), item 6, column 3), after the appeal was filed.

5    The appeal has a narrow compass. It raises two questions: first, whether the primary judge erred by failing to deal with a central submission that the sole intention of the officials (in whose conduct the Union was found to have been involved) was to ensure that the workplace was safe and the work being performed there was carried out safely and, if so, whether the findings his Honour made are unsustainable. The appellants seek orders quashing the primary judge’s decision and remitting the matter to him for redetermination according to law.

6    For the reasons that follow the appeal must be dismissed.

The facts as found

7    Having regard to the limited scope of the appeal, an abbreviated account of the facts will suffice. Most of them were the subject of agreement. None of them is challenged on the appeal.

8    Seymour Whyte Constructions Pty Ltd, a civil engineering contractor engaged by the NSW Government to perform some of the construction work on the project, outsourced the concrete pour to KFC Construction Pty Ltd. On 22 August 2019, a crew of workers supplied by KFC were pouring concrete at the site of a bridge which was on part of the project, known as the A22 bridge site. At about 12:04 pm, the union officials parked their cars under the bridge and climbed an embankment of scour rocks. They entered the site without following the protocol for entry in accordance with their rights as permit holders under the Work Health and Safety Act 2011 (NSW) (WHS Act).

9    On the way up the embankment, the union officials spotted a red plastic container they described as a jerry can used for fuel. It had a lid on it. They assumed there was fuel inside it and were concerned about a lack of bunding (a retaining wall). The container was not inspected to ascertain if it was full or empty.

10    Shortly after 12:04 pm, after climbing the embankment, the union officials approached KFC employees working on the project site and spoke to a formworker at the site. They then proceeded to position themselves between the site of the concrete pour and the rear of a concrete agitator (a truck carrying concrete which has a rotating drum mounted on the back that agitates the concrete to keep it fresh) where they remained there for some time. During that time discussions took place concerning various safety concerns they raised. Mr Rielly was asked twice to move away as the men were standing in an exclusion zone but he refused to do so (at [146]), saying on one occasion: “There’s no toilets. Fix this issue and I will move”.

11    The concrete truck was ready to reverse if called upon to do so but could not because its path was blocked by the union officials (at [156]).

12    Both men intended to stand where they were (at [148]). Neither of them moved from their positions until around 12:30 pm when the pour was abandoned. The pour was abandoned because the concrete in the agitator that was parked was no longer useable and had to be dumped. The union officials left the site of the pour at about 1:10 pm.

13    The primary judge found that the Union was liable “on the basis of accessorial liability pursuant to ss 550 and 793 of the [FW] Act”. I take that finding to mean that the Union was involved in the contraventions by the union officials (s 550) and the conduct of the officials was engaged in on behalf of the Union within the scope of their actual or apparent authority and is therefore taken to have been engaged in also by the Union (s 793).

The grounds of appeal

14    The grounds of appeal are in the following terms:

1.     The primary judge erred in failing to deal with a central submission of the Appellants recorded at [140] of the primary judgement:

“On behalf of the respondents it was submitted that all they intended to do was ensure that the workplace was safe. It was submitted that they did not intend to obstruct or hinder. They only sought that Seymour White perform its ordinary duties to ensure the safety of the site": [sic]

2.     A finding that the second and third Appellants did not intend to hinder or obstruct work but only sought that work be performed safely in accordance with the safety policies on the site would have been contrary to a finding that the appellants intentionally hindered or obstructed work. The latter finding was necessary in order for the primary judge to find any of the Appellants liable for contraventions of s.500 of the Fair Work Act 2009.

3.     The error was material in that there was evidence before the primary judge that the second and third Appellants intended that the work be performed safely in accordance with the safety policies on the site.

4.     By reason of these errors, the primary judge erred at [159] and [162] of the primary judgement in finding that the Appellants were each liable for contraventions of s.500 of the Fair Work Act 2009, in respect of which contraventions the primary judge made orders that pecuniary penalties be paid.

15    In substance, as the Ombudsman submitted, there is only one ground of appeal, namely, that the primary judge failed to “deal with” their submission that they did not intend to hinder or obstruct any person engaged in work at the site of the project but only intended to ensure that the workplace was safe. As is apparent from the notice of appeal, there is no challenge to the primary judge’s findings of fact.

The appellants’ submissions in the court below

16    The submission with which the primary judge is said not to have dealt was expressed as follows in the appellants’ written outline:

The respondents intended to ensure that the workplace was safe. They did not intend to hinder or obstruct work. The respondents sought only that Seymour Whyte perform its ordinary duties to ensure the safety of the site [citing Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) (Kiama Aged Care Centre Case) [2021] FCA 920; 309 IR 353 at [168]]. The respondents intended to ensure that the work be performed in accordance with the safety policies on the site. The work should not have been performed otherwise. In such circumstances, there could be no lawful proposal to perform work at all. The respondents could not disrupt work that was not able to be performed.

(Footnotes omitted.)

17    They contended that where an official’s entry is authorised, an employer’s officer is not hindered or obstructed when all the officer is being required to do is “no more or less than what his duties as an employee … required him to do”, citing Construction, Forestry, Mining and Energy Union v John Holland (2010) 186 FCR 88 at [8] (Spender J). They also referred to a passage in Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46 at [68] in which the Full Court said:

Where intention is an element of an offence, it must be proved. It is not sufficient to rely on ‘foreseeability, likelihood and probability’. It must be affirmatively established that the offender ‘meant to produce the particular result’ (see Zaburoni v The Queen (2016) 256 CLR 482 at [13] and [15])].

18    The submission was relevantly concerned with a claim by the union officials that their presence behind the concrete agitator arose out of their concern that the concrete pour was proceeding without a spotter in place, contrary to the safety rules operating on the site. The primary judge described a spotter as “a person designated, through wearing a pink vest, to guide the concrete truck while reversing and to ensure that it is safe to do so” (at [22]). The evidence was that the guidance is largely provided by the use of hand signals.

19    The appellants relied on a contemporaneous note made by Ella Russell (later Cross) annexed to her affidavit and the Seymour Whyte risk register which identified reversing trucks during a concrete pour as a hazard and nominated as one of the control measures: “no spotter no reversing”. Ms Russell was apparently seconded to the consortium which was managing this part of the project, known as Pacific Complete, to support employees working on the Woolgoolga to Ballina highway upgrade. The site rules in the Seymour Whyte Project Safety Plan stated relevantly:

Reversing of vehicles and plant must be undertaken with a spotter or reverse camera (or as defined in the site specific VMP / TMP[)] …

“VMP” stands for Vehicle Movement Plans and TMP for Traffic Management Plan.

20    In her affidavit Ms Russell referred to the spotter issue at [43], deposing:

I cannot now recall the exact conversation regarding the spotter, but I recall Rielly said words to the effect of: “When the agi was reversing there should be someone in a pink vest”.

21    But she added that:

Lawson replied: “The agi doesn’t go back until the spotter's there in the pink vest.” I also believe Lawson said that at the time the officials arrived at the site the concrete agitator was parked.

22    “Lawson” was a reference to Aaron Lawson, Seymour Whyte’s “civil superintendent”.

23    The contemporaneous note referred to numerous safety concerns the union officials claimed to have. The appellants submitted that it recorded that Mr Rielly had “no issue” with the concrete pour. But it did not. Rather, it stated:

Carried on about continuing with pour – no issue

24    The statement is ambiguous and no attempt was made to remove the ambiguity in the cross-examination of Ms Russell.

The appellants’ submission on the appeal

25    In their written submissions on the appeal the appellants submitted that it was not enough to satisfy the test of intention as formulated in Bragdon at [68] that the union officials intended to stand behind the concrete agitator thereby obstructing or hindering the concrete pour. What the Commissioner had to prove was not that they intended to stay where they were but that they intended to produce a particular result, and this is a question the primary judge did not answer. As the appellants put it:

[W]hat was not answered by the Primary Judge’s findings at [148] that Mr Rielly and Mr Fitzpatrick intended “to stand where they were” was whether they intended to hinder or obstruct any person in the sense that is prohibited by s.500. The Court did not make a finding that either official did or did not hold the intention that work be conducted in accordance with the duties of the persons on the site, which was the “particular result” intended by each of the second and third Appellants in the sense described in Bragdon. Such an intention does not produce a contravention of section 500.

26    In other words, the point the appellants were making was that his Honour did not apply the test in Bragdon, a test the appellants submitted was consistent with the test applied in John Holland which, they argued, was different from the test applied in BGC POS Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 74; (2019) 285 IR 43, to which the Commissioner referred in his submissions. There, Colvin J held that whether conduct hinders or obstructs depends on its effect, not its purpose (at [39]) and it is not necessary to prove that a permit holder intended the effect; it is sufficient to prove that the actions which had that effect were deliberate (at [56]).

27    BGC POS was concerned with an alleged contravention of s 502(1) of the FW Act, which provides that a person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with Pt 3-4. It is the flip side, so to speak, of s 500. In that case the question was “whether intentionally causing the result of hindering or obstructing is what is proscribed or whether it is only intentionally engaging in acts that may be characterised as hindering or obstructing” (at [32]). Colvin J observed at [33] that the adverb “intentionally” qualifies the phrase “hinder or obstruct” and, after discussing the various possible interpretations and the importance of context, held at [39]–[44]:

Neither hinder nor obstruct are terms that import a particular state of mind with which the conduct is performed. Nor do they include as part of the meaning an aspect of purpose. It is not necessary for a person to have the purpose of hindering or obstructing in mind in order for the person’s conduct to fall within one of those descriptions. Whether conduct hinders or obstructs depends upon its effect not its purpose. As verbs they have a meaning circumscribed by a particular outcome of the conduct (delay, interrupt, block, get in the way). They also embrace both accidental and deliberate conduct.

Therefore, to state that a person may not intentionally hinder or obstruct may be said to be ambiguous because the verb has two aspects, the act itself and the result. The term intentional may apply to one or both.

In cases where a statute provides that a person must be shown to have intended a result then it must be shown that “the person meant to produce that particular result and that that was the person’s purpose in doing the act”: SZTAL at [27]. However, that is not this case. Section 502(1) does not expressly proscribe conduct by reference to a particular result. Rather, it proscribes intentionally engaging in conduct of the kind encompassed by two verbs which in their ordinary meaning describe actions which may be accidental or deliberate by reference to a result. By using verbs of that kind there is no explicit or express statement of a result. Rather, the significance of the result is brought in as part of the semantic character of the word. The word “intentionally” focuses upon the two verbs which grammatically describe actions (albeit by the result of the action). It is plainly requiring deliberateness in action. However, anything beyond that is more implicit.

…

Otherwise, just because a person did not consciously intend their refusal to allow a person to use the crib room when they were so entitled to hinder or obstruct their rights to do so, the prohibitions that support the rights conferred under Pt 3-4 would not apply. As I have noted, the express object of Pt 3-4 is to establish a framework for union officials to enter premises that balances the rights of unions to represent their members, workers to receive information and representation at work and occupiers to go about their business without undue inconvenience. I find some support in the express purpose for the above approach. The rights to enter premises conferred by provisions such as s 484 would be compromised if there was no consequence unless it could be shown not only that any refusal was a deliberate act, but also that the occupier consciously intended to get in the way of the exercise of those rights.

28    Notably his Honour was not referred to either Bragdon or John Holland.

29    In the present case, in the paragraph of his judgment immediately preceding his summary of the submission the appellants contend he failed to consider ([139]), the primary judge said this:

[T]he intention to hinder must be proven. This has been interpreted that the offender meant to produce the particular result (see; Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64 at [68]).

30    In my opinion, Bragdon was a distraction. First, the passage in that judgment to which the appellants had referred his Honour in submissions did not establish a test for determining whether a permit holder had the intention to hinder or obstruct a person within the meaning of s 500 or 502(1). It deals with the intention necessary to establish an offence under s 317 of the Criminal Code 1899 (Qld). It is true that many of the principles which apply to liability for contraventions of civil remedy provisions are derived from the criminal law but a contravention of a civil remedy provision of the FW Act is not an offence: FW Act, s 549. Furthermore, Bragdon was concerned with a different provision of the FW Act, namely, s 503(1), which relevantly provides that a person must not take action “with the intention of giving the impression … that the doing of a thing is authorised by [Pt 3-4]”.

31    If, contrary to BGC POS, s 500 or, for that matter s 502(1), is properly described as a contravention requiring specific intent, the specific intention which the Commissioner was required to prove was that the union officials intended to hinder or obstruct a person. Put another way, what the Commissioner had to prove was that the union officials meant to produce the result that a person was hindered or obstructed.

32    But I digress.

33    The more fundamental difficulty with the appellants’ submission in the present case is that it was beyond the scope of the issues raised by the notice of appeal. No issue arises on the appeal about the correctness of the approach taken in BGC POS. Mr Latham, who appeared for the appellants both in the appeal and the court below, declined to argue that BGC POS was wrongly decided and declined to amend the notice of appeal. He made it clear that the appellants did not seek reconsideration of the test in BGC POS.

34    Moreover, it was at odds with the submission he put to the primary judge.

35    In his written submissions in the court below, Mr Latham submitted that the Commissioner was required to prove all of the following matters:

(i)    that [the union officials] positioned themselves between the rear of the Truck and the concrete pour; and

(ii)    that they were not entitled to be there because it was an exclusion zone; and

(iii)    that they refused to move from the exclusion zone; and

(iv)    that they thereby prevented the Truck from reversing.

36    The transcript records that during Mr Latham’s address when he submitted that it was “necessary to prove intent” this exchange followed:

MR LATHAM: It is necessary to prove intent but not as to the purpose as to the events.

HIS HONOUR: Yes. It’s necessary to prove they intended to be where they were.

MR LATHAM: Yes. Yes. And it follows from the pleadings …

37    It follows that the appellants accepted in the court below that the test in BGC POS was correct and that the Commissioner would prove his case if he established intention in accordance with that test.

38    Questions about whether BGC POS is inconsistent with John Holland and, indeed, whether the relevant remarks in John Holland, which was concerned with a different provision of the FW Act, have any bearing on the intention required in s 500 will have to await determination in a case in which they squarely arise.

39    After disavowing an intention to argue that the test in BGC POS was the wrong test, Mr Latham submitted that the primary judge did not apply that test. Assuming that submission is captured by the notice of appeal, it must be rejected. It is tolerably clear that was the test the primary judge imposed and the test both parties submitted applied.

40    At the hearing of the appeal the appellants tried a different approach. They submitted that the conduct of the union officials in requiring work to be performed safely could not constitute a hindrance or obstruction. They also argued that the respondents could not disrupt work which was incapable of being performed because no spotter was in place. This is just another way of putting the same submission. Whichever way it was put, this submission was also outside the scope of the notice of appeal.

Did the primary judge deal with the appellants’ submission concerning their intentions?

41    I now turn to the question raised by the appeal.

42    In substance, as the Ombudsman recognised, the appeal is concerned with the adequacy of the primary judge’s reasons, although, as the appellants submitted, it may also raise a question as to whether the reasoning exposes error. A convenient summary of the relevant principles appears in the judgment of the Western Australian Court of Appeal in Chief Executive Officer, Department for Child Protection and Family Support v IGR (2019) 54 WAR 222 at [112]:

(1)    Reasons for decision need not be lengthy or elaborate.

(2)    Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.

(3)    It is not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party’s case and explain why that case fails.

(4)    In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge’s or tribunal’s consideration.

(Footnotes omitted.)

43    I apprehend that the principle invoked by the appellants is the fourth one listed above. The same point was made by Nettle JA in Hunter v Transport Accident Commission [2005] VSCA 1; (2005) 43 MVR 130 at [21] (Batt and Vincent JJA agreeing). His Honour said in the course of a lengthier discussion of the principles that:

[W]hile it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.

(Footnotes omitted.)

44    The submission the appellants made about their intentions concerned a central element of their case. But I am not persuaded that the primary judge did not deal with it or explain why it failed.

45    It was common ground that the primary judge was alive to the submission. He expressly referred to it at [140] of his reasons and to the passage in the Kiama Aged Care Centre Case upon which the appellants had relied. While he did not repeat the submission verbatim, his Honour summarised its central point:

On behalf of the respondents it was submitted that all they intended to do was ensure that the workplace was safe. It was submitted that they did not intend to obstruct or hinder. They only sought that Seymour White perform its ordinary duties to ensure the safety of the site: (see; ABCC v CFMMEU (Kiama Aged Care Centre Case) [2021] FCA 920 at [168]).

46    The appellants did not contend that his Honour’s summary was inaccurate or misleading.

47    It is true that his Honour did not explicitly reject the submission. But it was also common ground that no appealable error arises if the submission was dealt with in substance, if not in terms. His Honour’s finding at [148] cannot be considered in isolation. Reading the reasons fairly and as a whole, in the context of the evidence his Honour accepted and that which he rejected or did not accept, there is little room for doubt that his Honour did deal with the substance of the submission.

48    First, immediately after his reference to the submission the subject of the appeal, his Honour proceeded to consider the evidence “with [the appellants’ submissions] in mind” (at [141]).

49    Second, his Honour noted (at [144]) that the union officials admitted that they had positioned themselves behind the concrete agitator and acknowledged their claim that they did so in an attempt to force the site managers to address their concern that a spotter was not in place to guide the concrete truck as it was reversing but found that the spotter could not signal to the truck driver to reverse into the pour because the union officials and the Seymour Whyte managers were in the way. Later, at [156] his Honour found, in effect, that the only reason the spotter was not in place, was that the union officials were impeding him.

50    Third, his Honour rejected the foundation for the appellants’ submission about their intentions, and, consequently, the proposition that the appellants were actuated by their concerns about non-compliance with the safety policies on the site (at [149]–[156]). The foundation for the submission was a claim made by Mr Rielly that the truck had reversed on several occasions without a spotter in place, putting him and the workers in imminent danger. His Honour observed that Mr Rielly was the only witness to give this evidence and emphatically rejected it.

51    His Honour found that the truck had remained stationary at all relevant times, including when the union officials first stood behind the agitator to impede the concrete pour (at [149]). In doing so, he accepted “without reservation” the evidence of Paul Jordan that “the usual work practice for the pour that day” was that “the tester came to the truck and the truck did not reverse into the pour without a [s]potter” (at [150], [155]). He noted (at [149]) that Mr Rielly’s claim was not supported by any other witness including Mr Fitzpatrick. He also relied on contemporaneous photographic evidence which he concluded clearly indicated that the truck had not moved at any relevant time (at [152]); the denial by Seymour Whyte’s project engineer, James Fleetwood, that the truck had reversed (at [153]); and the absence in the s 117 notice signed by the union officials and served on Seymour Whyte of any mention of the spotter requirement or the truck reversing and endangering Mr Rielly (at [154]), having earlier referred to the right conferred on permit holders by s 118 of the WHS Act to warn any person whom the permit holder “reasonably believes to be exposed to a serious risk to his … safety emanating from an immediate or imminent exposure to a hazard, of that risk” (at [136]–[137]). With respect to the last matter, his Honour said at [154]:

The Court draws further comfort in this conclusion in that the s 117 WHS Act Notice served on Seymour White, makes no mention of a truck reversing without Spotter or that it nearly ran Mr Rielly over. This would have been such a significant matter that it would reasonably have warranted specific attention in the Notice. Instead, the best that can be said is a box relating to “traffic management” is ticked. The Court does accept however, that there was reference to the reversing in the subsequent meeting notes at the Tyndale compound.

52    In any case, on the facts as found by the primary judge, the only thing hindering or obstructing the concrete pour from being performed safely was the presence of the union officials behind the concrete agitator. His Honour concluded (at [156]) that the agitator was ready to reverse if called upon to do so but could not reverse because of the union officials’ decision to position themselves in its path and to refuse to move when asked.

53    The appellants had claimed that the agitator had reversed a number of times while the spotter, Padraig Smith, was in the pour area, in a position where he could not signal to the agitator driver. They maintained this claim on the appeal. But on the evidence his Honour accepted, the spotter was not Padraig Smith but Paul Jordan. Mr Jordan deposed in his first affidavit that at about 12.30 pm Mr Smith was acting as the spotter for the concrete agitator and was wearing the pink vest the spotter is required to wear (at para 9). The primary judge found (at [155]) that Mr Jordan’s times were out by about an hour and it was common ground on the appeal that I should read the 12.30 pm time as 11.30 am. Mr Jordan went on to depose (at para 21) that at some point during the discussions with the union officials Mr Smith left to obtain supplies and he (Mr Jordan) took over the spotter’s role, putting on the pink vest so that he would be ready to act as the spotter “if and when the pour began”. When the concrete agitator arrived, he said (at para 23):

I acted as a spotter for the agitator. However, I could not signal the agitator to reverse into position at the pour as the group of union officials and SWC managers were in the way. The agitator remained stationary during this time.

54    Mr Jordan identified himself (at para 26) in a photograph annexed to his affidavit as PJ-02, taken at 12.12 pm, in which the two union officials can be seen standing behind the agitator with Gareth Morison, a leading hand employed by Seymour Whyte. He also said that he heard Mr Lawson ask the union officials to move out of the way so that the agitator could reverse into the pour and one of the union officials (Mr Rielly) continually refusing to move over a 20 to 30 minute period (at para 24–9).

55    Mr Jordan’s account was supported by Mr Morison. His evidence, as summarised by the primary judge at [26] of his reasons was that at the time the agitator was ready to be moved into position to commence the pour but before it moved, the union officials positioned themselves directly behind the agitator, between the agitator and the pour site. In a supplementary affidavit Mr Morison deposed:

17.    I recall all spotters at my working area that day, wearing a pink vest. It is common for spotters to change throughout the day but there will only ever be one spotter at a time who is wearing the pink vest.

18.    I recall Paul Jordan being the spotter and wearing the vest at the time of the incident.

19.    In preparing this affidavit I have been shown a photo. In looking at the photo I can see that it was the site of the pour on 22 August 2019. The photo shows another spotter (not Paul Jordan) who is wearing the pink vest. Because of the stage of the concrete in the photo, and the fact that a ‘stop end’ has been inserted to preserve the concrete already poured - I know that this photo was taken after the incident with the union representatives. Putting in a stop end is rare as you would not normally stop a concrete pour half way. I do not recognise the person in the photo well enough to know their name. Attached and marked Annexure GJM-04 is a copy of the photo.

I take the reference to “time of the incident” to mean the time the union officials were considered (and found) to be interfering with the concrete pour.

56    Another photo, upon which the appellants relied and which was annexed to Mr Jordan’s affidavit as PJ04, appears to have been taken at a similar point in time. Mr Jordan identified the man in the pink vest in that photograph as Padraig Smith at para 40 of his affidavit.

57    Mr Latham submitted that the primary judge did not identify Mr Jordan as the spotter who was in place to guide the agitator through the pour. I cannot accept that submission. It is contrary to his Honour’s findings at [144], [150] and [159] and to the evidence his Honour accepted.

58    At [144] of his reasons his Honour said:

The Union Officials admitted that they positioned themselves behind the concrete agitator. They claimed that this was in an attempt to force the safety concerns regarding a Spotter being addressed. Mr Jordan stated that he could not signal the agitator to reverse into the pour position as a group of Union Officials and SWC managers were in the way. Further, Mr Jordan stated that he heard the Union Official in the orange shirt state “I do not have to go anywhere”. The Court accepts this evidence.

59    It is evident that his Honour found that Mr Jordan was the spotter at the time the agitator arrived and the pour was due to begin. That is because Mr Jordan deposed that the spotter’s role was to signal to the agitator driver when to move and stop (at para 9) and explained that he took over the spotter’s role from Mr Smith before the agitator arrived, donned the pink vest so that he would be ready to be the spotter if and when the pour began, and his Honour accepted “without reservation” Mr Jordan’s account of the work practice (at [155]). His Honour considered that Mr Jordan’s error with respect to times did not affect the reliability of his other evidence (at [155]). The obvious inference to be drawn from the evidence the primary judge accepted is that Mr Smith was not the spotter at any relevant time and that Mr Jordan was the spotter in place at that time.

60    The appellants conceded that, if the primary judge found that there was a spotter in place at the relevant time, their submissions (and, inferentially, the appeal) cannot succeed.

61    In the Kiama Aged Care Centre Case at [168], upon which the appellants relied below, I said:

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

62    I fail to see how this passage supported the appellants’ argument in the present case. On the facts as found by the primary judge, which are not challenged on the appeal, it was the actions of the union officials in deliberately placing themselves behind the agitator that hindered the continuation of the concrete pour. There could be no doubt that was their intention, having regard to their persistent refusal to move when asked. The appellants’ submission, the subject of the appeal, was concerned with the motives of the union officials, not their intentions, and the Commissioner was not obliged to prove their motives. Although the extent of their intervention was not as extreme as the intervention in the Kiama Aged Care Centre Case, it, too, exceeded the scope of their authority under the WHS Act. Furthermore, on the facts as found by the primary judge, the occasion to warn of a serious safety risk did not arise.

63    It follows that, even if I am wrong in concluding that the primary judge dealt with the substance of the appellants’ submission about their intentions, there would be no point in a remittal. On the facts as found and having regard to the way in which the case was argued, the appellants were bound to lose: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 444 (Meagher JA).

Conclusion

64    The appeal must be dismissed.

65    No application for costs was made or foreshadowed. The Court’s power to award costs in a matter such as this is constrained by the conditions imposed by s 570 of the FW Act. In the circumstances, there will be no order as to costs.

Associate:

Dated:    13 March 2023