FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Inner City South State Secondary College Case) (No 2) [2023] FCA 1302

ORDERS

THE COURT ORDERS THAT:

1.    The matter be listed for a hearing on a date to be fixed to determine the appropriate relief for the first and third respondents’ contraventions of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) and the first, second and third respondents’ contraventions of s 52 of that Act.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    In 2020, Broad Construction Pty Ltd (Broad) was the principal contractor for the construction of the Inner City South State Secondary College at Dutton Park in Queensland (the Project). Broad engaged a number of subcontractors, which in turn employed construction workers, to carry out the construction work.

2    On nine days in July and August 2020, a number of the subcontractors’ employees ceased working at the Project. The first stoppage, on 21 and 22 July 2020, took place because of concerns about the operability of a fire hydrant. The subsequent stoppages, commencing on 27 July 2020, took place because of concerns that one of Broad’s employees might bully or intimidate the employees.

3    The applicant, the Fair Work Ombudsman, alleges that the stoppages involved contraventions by the respondents of ss 46 and 52 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCI Act). On 6 February 2023, the BCI Act was renamed the Federal Safety Commissioner Act 2022 (Cth) and a number of its provisions, including s 7, 46 and 52, were repealed. The repeals do not operate retrospectively and do not affect the present case. It is convenient to refer to the legislation under its former name.

4    The applicant alleges that:

(a)    the employees’ engaged in “unlawful industrial action” by their failure or refusal to perform work in contravention of s 46 of the BCI Act;

(b)    the unlawful industrial action was organised by the second respondent (Andrew Blakeley) and the third respondent (Dean Mattas), or they were knowingly involved in such action, and they thereby contravened s 46 of the BCI Act;

(c)    Mr Blakeley and Mr Mattas unlawfully coerced Broad to cease to employ Mr Millan or not allocate him duties at the site, in contravention of s 52 of the BCI Act;

(d)    the conduct of Mr Mattas and Mr Blakeley is attributed to the first respondent (the Union) pursuant to s 95 of the BCI Act, and that the Union thereby contravened ss 46 and 52 of the BCI Act.

5    The Commissioner seeks declarations that the respondents contravened ss 46 and 52 of the BCI Act and penalties for the contravention of those provisions.

6    The respondents defend the proceeding on the basis that:

(a)    the stoppages were not “industrial action” within s 7 of the BCI Act because:

(i)    the employees were under no legal obligation to work after directions to cease work had been given to them in accordance with the terms of relevant enterprise agreements and s 85 of the Work Health and Safety Act 2011 (Qld) (the WHSQ Act);

(ii)    the stoppages were excluded from the definition of “industrial action” under s 7(2)(c) of the BCI Act.

(b)    Mr Blakeley did not “organise” any industrial action;

(c)    The conduct of Mr Blakeley and Mr Mattas did not amount to coercion under s 52 of the Act.

(d)    Mr Mattas’ conduct is not attributable to the Union under s 95 of the BCI Act.

7    I will proceed by considering the facts of the case and then identifying the issues before addressing the issues.

The facts

8    In this section, I will determine some basic facts of the case by reference to admissions and agreed facts and by making findings of fact. It will be necessary to make further factual findings elsewhere in these reasons.

Background and witnesses

9    The Project involved construction of the Inner City South State Secondary College. It was a large project, which involved constructing four buildings over an area of approximately two hectares. The school was intended to have a capacity of approximately 1,500 students.

10    Broad was contracted by the State of Queensland to construct the Project. Broad engaged specialist subcontractors to undertake the construction work on the Project.

11    To oversee the construction work, Broad employed a team of managers at the site including Cameron Kirkwood (the Senior Project Manager) and Phillip Millan (a Project Manager).

12    Mr Kirkwood was called by the applicant to give evidence at the hearing. Mr Millan was not. Mr Millan’s absence was unexplained. Mr Millan’s absence leaves evidence given by the respondents’ witnesses about his behaviour uncontradicted. I also draw the inference that his evidence would not have helped the applicant’s case.

13    Broad’s employees had managerial roles in respect of the Project. The manual construction work was performed by employees of the subcontractors.

14    A Health and Safety Committee (HS Committee) for the Project had been established under Part 5, Division 4 of the WHSQ Act. The HS Committee was comprised of approximately nine health and safety representatives (HSRs) appointed for the larger subcontractors and seven representatives of Broad.

15    An issue in dispute is that Mr Mattas claims that he was appointed as a “Site-wide HSR”, representing all construction workers on the Project, whereas the applicant denies that he was so appointed. Since that issue is in dispute, when I refer to the HSRs, I will generally exclude Mr Mattas from that description.

16    It is unclear whether Mr Millan was a member of the HS Committee. However, he was heavily involved in engaging with the HSRs about health and safety issues at the Project.

17    Mr Blakeley was employed by the Union as an organiser with responsibility for the Project.

18    Mr Mattas and Mr Blakeley gave evidence. The respondents also called four HSRs to give evidence. Those HSRs and their respective employers were:

(a)    Geordie Sheldrick (Rovera Scaffolding);

(b)    Jason Bushnell (Action Formwork);

(c)    Robert (“Bobby”) Reid (Lindores);

(d)    Todd Uren (Placecorp).

19    There were five other HSRs who were not called to give evidence. They were David Burrows (Blue Star Pacific), Josh Hegelstein (Beavis and Bartels), Ray Kren (Statewide Steelfixing), Mark Robin (SRG Global) and Adam Barnes (L&D Contracting).

20    The case is concerned with the lawfulness of stoppages of work by the subcontractors’ employees and the conduct of Mr Mattas and Mr Blakeley. There is little dispute about what happened and why it happened. The largest area of factual dispute concerns the reasonableness of directions to cease work that were given by Mr Mattas and the HSRs. In the absence of evidence from Mr Millan, few issues arise concerning the credibility, or even reliability, of witnesses. The applicant does not dispute, for example, that Mr Millan engaged in the behaviour described by the witnesses, or that the HSRs did not have concerns that Mr Millan’s behaviour created a risk to the health and safety of employees. While there are differences in the recollections of the witnesses about what was said at various meetings, it is unsurprising that there are differences and they are generally of little ultimate consequence.

Events on 21 July 2020

21    At the relevant dates (21 July to 4 August 2020), the construction program involved formwork and sub-surfacing works (eg underground piping and electrical systems). This required concreting, installation of pre-cast concrete, steel fixing and installation of plumbing and electrical systems.

22    The normal working hours of the Project were Monday to Friday, generally within the hours of 6.00 am and 4.30 pm. There was also a nightshift, but the nightshift was not disrupted by any stoppages and has little relevance for this case.

23    On Tuesday, 21 July 2020, approximately 132 construction workers employed by the subcontractors attended the Project site at the commencement of the shift. These subcontractors and the approximate number of their employees who attended the site were:

(a)    Action Formwork (formwork), 39 employees;

(b)    Statewide Steelfixing (steel fixing), 13 employees;

(c)    SRG Global (post tensioning), 7 employees;

(d)    Placecorp Concrete (supply and place concrete), 16 employees;

(e)    Euro Precast Vertical (supply and install precast concrete), 5 employees;

(f)    Beavis and Bartels (plumbing), 4 employees;

(g)    Blue Star Pacific Electricians (electrical works), 5 employees;

(h)    Rovera Scaffolding (install scaffolding), 14 employees;

(i)    L&D Contracting (civil works), 5 employees;

(j)    Liebherr Cranes (“wet” crane hire), 5 employees;

(k)    Lindores Personnel (general labouring and traffic control), 11 employees;

(l)    Priest & Co (blockwork), 2 employees;

(m)    Ministaff (surveying), 1 employee;

(n)    Auscoast Fire (install fire and emergency systems), 2 employees; and

(o)    Venmist (install air conditioning and heating systems), 2 employees.

24    I will refer to these subcontractors collectively as the Subcontractors, and to their employees as the Employees.

25    The respondents admit that the Employees were scheduled and required to undertake work on the Project on 21 July 2020 and that the numbers of them scheduled and required to work on each relevant day would have been similar.

26    All except five of the Subcontractors had entered enterprise agreements with the Union covering employees who were members or eligible to be members of the Union (the Enterprise Agreements). The Enterprise Agreements contained an identical clause 9.9 which allowed health and safety representatives to direct that employees cease work without consultation in some circumstances where there was an immediate threat to the health or safety of any person.

27    The five subcontractors who did not have enterprise agreements with the Union were Beavis and Bartels, Blue Star Pacific Electricians, Ministaff, Auscoast Fire and Venmist. That appears to be because they did not employ persons in trades covered by the Union.

28    Before 7 am, Mr Mattas received a call from an unidentified employee indicating there was a problem with a “booster assembly”. Some witnesses used the term “booster assembly” interchangeably with “hydrant”. Other evidence suggests there may be some difference, but it is unclear what the difference is. In any event, it appears that firefighters could connect their hoses to the booster assembly to obtain access to water in the event of a fire.

29    Mr Mattas’ evidence was that the issue reported to him concerned building materials placed in front of the booster assembly. The evidence of some HSRs suggests the issue concerned whether the booster assembly was properly connected or had adequate pressure.

30    Mr Mattas, Mr Sheldrick, Mr Uren, Mr Bushnell and Mr Reid as HSRs attended the booster assembly, which was in front of a building under construction known as “Building B”. Since Mr Mattas deposes that, “the HSRs for the Project conducted an inspection of the booster assembly”, I infer that Mr Burrows, Mr Hegelstin, Mr Kren, Mr Robin, and Mr Barnes also attended.

31    During the inspection, Mr Mattas identified that firefighters’ access to the booster assembly was affected by scaffolding that had been placed nearby. In addition, he identified that there were no hose reels.

32    Mr Mattas and Mr Reid deposed that access to the booster assembly was “blocked”. It is unclear from their affidavits whether they mean completely blocked or partially blocked. In his oral evidence, Mr Mattas accepted that access was “restricted”. I accept Mr Mattas’ evidence and find that access was restricted rather than completely blocked.

33    Mr Mattas contacted Mr Millan by phone and told him there was an issue with the booster assembly and asked him to come down and look at it. Mr Mattas also raised “concerns about the training for responders”. He asked Mr Millan to bring a copy of the emergency evacuation plan. Mr Millan said he was on-site and would be down in 30–45 minutes.

34    Mr Mattas responded by saying that these were serious concerns and asking him to come down now. Mr Millan repeated he would be there in 30–45 minutes. Mr Mattas said they would wait there for 10 minutes.

35    When no one from Broad arrived at the booster assembly within 10 minutes, Mr Mattas together with the HSRs decided that all work on the site would cease. Mr Bushnell’s evidence was that Mr Mattas said, “We need to direct a cessation of work on the site”.

36    The view of Mr Mattas and the HSRs was that if a fire were to break out, the Employees would be at risk. They considered that the risk was a “whole of site” risk.

37    The HSRs dispersed and gathered their respective work groups. By about 7.20 am, the Employees started walking back to the site sheds. The respondents’ Amended Defence admits that Mr Mattas and other HSRs issued a direction to the Employees to cease work.

38    The reasons given by Mr Mattas and the HSRs for giving the direction varied.

39    Mr Reid’s initial concern was that he was told there was an issue with the water pressure, although he does not seem to have been made aware of what that issue was. Having inspected the booster assembly, he told his work group that the reason for the direction was that firefighters would not be able to access the booster assembly because it was blocked.

40    Mr Bushnell’s reasoning was that he could not be satisfied that any of the hydrants could get water to them. This appears to be a concern about whether the booster assembly was properly connected or had adequate water pressure.

41    Mr Sheldrick was told by an unnamed person there was an issue with the booster assembly, being that the person was “not sure” if the booster assembly was properly connected. Even before inspecting the booster assembly, he had told the Rovera workers to stay in the sheds until the issue was resolved.

42    Mr Uren states that when he attended the booster assembly, he noticed the pressure was low. It is unclear how he could ascertain that the pressure was low when Mr Sheldrick’s evidence, which I accept, was that no pressure gauge had been installed. It seems probable that Mr Uren suspected that the pressure was low. He states that the HSRs decided to stop work due to an imminent safety risk arising from the fact that, “there were apparent defects with the emergency procedure on the site”. He told the Placecorp employees he was “aware of a safety issue with the booster hydrant”. Mr Uren’s direction was based on the perceived inadequacy of the water pressure in the booster assembly. Although he later referred in his discussion with Placecorp employees to “booster access”, that does not seem to have formed part of his reason for giving the direction to cease work.

43    Mr Mattas’ reasoning appeared to be the restriction of access to the booster assembly and absence of fire reels, which he considered contravened clause E1.9 of the Building Code of Australia (Volume 1, National Construction Code) (the Building Code), as well as the emergency evacuation plan. His evidence was to the effect that the obstruction would not prevent access by firefighters, but make it more difficult. He accepted that cl E1.9 of the National Construction Code applied only to Buildings A and B, and not to other parts of the site.

44    Mr Mattas also accepted that at the time the directions to cease work were given he did not know whether there were persons on the site with outdated first-aid qualifications. Although he had told Mr Millan he had, “concerns about the training for responders”, I do not understand him to suggest that those concerns were part of the reason for giving the cease work directions.

45    Mr Mattas and the HSRs did not consult with Broad or the employers of the subcontracted employees before giving the directions to cease work.

46    After Mr Reid met with his work group, Mr Millan came up to him and asked, “What the fuck are you doing in the sheds?”

47    Mr Reid responded by saying he was there to address his work group about the safety issues on site. Mr Millan said:

What you’re doing is illegal. It’s fucking illegal.

48    Mr Reid responded that it was not illegal and he was acting within his rights as a HSR to provide directions to his work group. Mr Millan then said:

I’ll fucking have you deregistered as a HSR, and you’ll lose your accreditation. You’ll lose your job and you won’t be able to work as a HSR.

49    About 15 minutes after the HSRs dispersed and directed the cessation of work, Mr Mattas spoke to Mr Kirkwood, and told him that, “We’re exercising the right to stop unsafe work under s 85 of the Work Health and Safety Act, and under the EBA”. Mr Mattas said that the issues related to the emergency evacuation plan.

50    At about 7.30 am, the HS Committee met with a plumber at the hydrant booster. The plumber inspected the hydrant system and stated that it was compliant. Mr Kirkwood acknowledged the issue concerning the restriction of access and said that he would organise the obstacle to be removed.

51    Later, at about 8.30 am, Robbie Gould, an organiser with the union covering plumbers, stated that Broad needed to conduct a live test to show correct flows. I understand this to have been required because some adjustments had been made to the booster assembly to allow the testing to be carried out by the plumber.

52    The meeting moved inside to a meeting room. Broad was represented by Mr Kirkwood, Mr McAway, Mr Millan and two others. Mr Mattas and the HSRs were present. Also present were Mr Blakeley, an official from the Electrical Trades Union and an official from the Plumbers’ Union.

53    At the meeting, Mr Mattas stated that there was no access to the hydrants and no fire reels, and this contravened the Building Code, as well as the emergency evacuation plan. Mr Kirkwood advised that Broad would get people out to deal with the booster assembly and to remove the frames and scaffolds that were hindering access to the hydrants.

54    Mr Mattas asked for evidence of training of the fire wardens and first aiders. That evidence could not be provided immediately so the meeting was adjourned. When the meeting reconvened at about 10.30 am or 11.00 am, Mr McAway provided the training records. On review of the training records, it was identified that the training for some of the nominated first aiders were out of date. Their certificates, including their CPR training certificates, had expired.

55    Mr Mattas made a comment about a failure of Broad Construction’s Safety Management Plan. In response, Mr Millan stood up quickly and shouted:

Fuck off. Dean! What a load of fucking rubbish!

56    Some of those present told Mr Millan to calm down and said he could not speak to people like that. Mr Mattas told Mr Millan that if he was not going to participate, he should leave the room.

57    Mr Millan then yelled, “You’re all a bunch of fucking idiots”, directing his comment towards the HSRs. He then looked at Mr Blakeley and said, “Youse can all fuck off”. Mr Blakeley responded, “No, you can fuck off”.

58    Mr Millan then turned and left the meeting room. As he was leaving he yelled, “Fucking idiots”. Mr Millan continued to yell as he walked down the corridor.

59    After Mr Millan had left, Mr Mattas told Mr Kirkwood that Mr Millan’s behaviour was not acceptable, and Mr Kirkwood agreed.

60    Mr Reid then relayed his interaction with Mr Millan earlier that morning. Mr Reid said that Mr Millan had been yelling and standing over him. Mr Reid said he found Mr Millan’s body language intimidating and that he was shaking after he left. He said that Mr Millan was a bully. I accept that Mr Reid’s voice was shaky and he was visibly upset.

61    Mr Reid went on to say he had previously spoken to Jessica Craigie, Broad’s Human Resources Manager, about Mr Millan’s behaviour, and she said she would speak to Mr Kirkwood about it. Mr Kirkwood responded by saying that Ms Craigie had never spoken to him about Mr Millan’s behaviour. Mr Reid was visibly upset at Mr Kirkwood’s response.

62    I interpolate to say that the minutes of a HS Committee meeting on 11 June 2020 include a reference to Mr Reid identifying that, “subcontractors have fears and stress about future employment if they speak out about feeling unsafe to complete a task”, and that Mr Reid, “had a difference of opinion with Phil regarding the definition of light vehicle”. The minutes of the HS Committee meeting on 18 June 2020 record Mr Mattas as saying that Mr Reid had, “made a request for Jess to speak to Cam about Phil’s behavior”.

63    Mr Mattas states that in the meeting on 21 July 2020, he told Mr Kirkwood, “We have to do something about this guy. He is a safety risk”. Mr Kirkwood responded that he was going to have a talk to Mr Millan.

64    Mr Kirkwood’s evidence is that it was Mr Blakeley who said, "Mate, we’re not going anywhere till he’s removed", which caused him to respond that he was going to talk to Mr Millan. I prefer Mr Mattas’ version, which is more consistent with the evidence of Mr Blakeley and Mr Bushnell.

65    Mr Reid then said that Mr Kirkwood was meant to have spoken to Mr Millan before and nothing had changed. Mr Mattas said:

You need to remove this guy from site. He is out of control, he is a risk.

66    Mr Kirkwood said he would have chat to Mr Millan about getting him into the office and giving him a desk job. The meeting then adjourned and Mr Kirkwood spoke to Mr Millan.

67    The meeting reconvened about 20 minutes later. Mr Kirkwood said that Mr Millan was going to be sitting in the office for the rest of the day.

68    Mr Blakeley said that work would not continue until “the risk” was removed from site. The “risk” he was referring to was Mr Millan.

69    Mr Kirkwood said that he did not have the authority to remove Mr Millan from site. He said that if their position was that Mr Millan needed to be removed from site, he would have to contact Workplace Health and Safety Queensland (WHSQ). Mr Kirkwood said that Mr Millan had removed himself from the situation and that they could progress the meeting.

70    Mr Blakeley described Mr Millan as having engaged in bullying. Mr Kirkwood replied that Mr Millan was clearly frustrated, but that his conduct at the meeting was not bullying. Mr Blakeley then said workers felt threatened and would not start work until Mr Millan was removed from the site. It seems that the meeting ended at that point.

71    After the HS Committee meeting, Mr Sheldrick told the Rovera Employees that they were going to stay in the sheds until there was a solution to the issue with first aiders. He does not suggest he consulted with Rovera prior to issuing that direction. None of the other HSRs gave evidence that they gave any further directions to their work groups after the meeting.

72    I find that Mr Mattas, together with the HSRs, decided that work on the site would cease. As a result, the Employees were directed to cease work or not commence work by the HSRs at about 7.15 am on 21 July 2020. The Employees complied with that direction and did not perform any work for the rest of that day. I find that there was no consultation by the HSRs with their employers or with Broad concerning any asserted health and safety issues before they gave directions to stop work.

73    I find that Mr Sheldrick gave the Rovera employees a further direction not to work following the HS Committee meeting. I accept that he can be taken to have consulted Broad about the numbers of first aiders on site during the HS Committee meeting. However, he did not consult Rovera before giving the direction.

74    Mr Kirkwood contacted WHSQ and their representatives arrived at the site at about 2.30 pm. By then, the Employees had left the site.

Events on 22 July 2020

75    On Wednesday, 22 July 2020, about 111 Employees attended work at the Project, but did not commence working at the normal start time.

76    A HS Committee meeting was to commence at 6.30 am. The HSRs, other than Mr Reid, Mr Mattas, Mr Blakeley, Mr Kirkwood and various Broad managers, were present. Mr Millan was not at the site that day.

77    Mr Mattas was concerned about Mr Reid’s wellbeing because of his observations of him the previous day. Mr Mattas was eventually able to speak with Mr Reid. Mr Reid said he was staying home for at least a couple of days, he had a doctor’s appointment and the thought of having another run in with Mr Millan was really stressing him out.

78    Mr Blakeley stated that the meeting would not start until WHSQ attended. Inspectors from WHSQ attended the site at about 7.30 am and met privately with Mr Mattas, the HSRs and Mr Blakeley, without Broad. In that meeting, there was some discussion about obtaining statements from employees who had been bullied by Mr Millan. Mr Mattas confirms that the concerns about access to the booster assembly and hose reels were resolved at the meeting with WHSQ, but it is not apparent anything remained to be resolved about those matters before that meeting or how any discussion with WHSQ could have resolved those matters.

79    Broad had organised new first aid officers and had booked training in a few days’ time to have various employees’ certificates renewed. The evidence of Mr Mattas and the HS Committee does not suggest that there was any issue remaining about the number of qualified first aid personnel on site.

80    From about 7.30 am, the only outstanding issue concerned the conduct of Mr Millan.

81    The employees then participated in a toolbox talk about the emergency evacuation plan, before resuming work at about 12.30 pm.

82    At approximately 1 pm, another HS Committee meeting was held concerning Mr Millan. Mr Kirkwood explained that Broad had to follow its complaints procedure. Mr Mattas stated that he wanted a commitment that Mr Millan would not come back to the job. Mr Kirkwood said that he had seen no grounds for that, but would investigate any complaints received.

83    Mr Kirkwood also indicated that he would notify the HS Committee before Mr Millan came back to the site.

84    There is no evidence that Mr Mattas or any of the HSRs gave any direction on 22 July 2020 that work was not to commence at the normal start time. I infer that the Employees did not commence on time because of the directions given by the HSRs the previous day.

Events on 23 July 2020

85    On Thursday, 23 July 2020, Mr Millan did not attend the site and work was undertaken as normal.

Events of 24 July 2020

86    On Friday, 24 July 2020, about 130 Employees attended the site, but no work was performed due to inclement weather. The applicant’s case is not concerned with non-performance of work on that day.

87    A HS Committee meeting was held at 7.30 am. Afterwards, Mr Kirkwood asked to discuss the position in relation to Mr Millan, to which Mr Mattas replied that there was nothing to discuss as Mr Millan was a safety risk.

88    Mr Kirkwood said that Broad accepted that if any workers had genuine concerns about imminent risks to work health and safety, they had the right to not work, but Broad’s view was that there was no such risk. He said Broad would continue to send letters to the Subcontractors to tell them that Broad viewed the stoppages as unlawful.

89    Mr Mattas asked what was going to be done about Mr Millan. Mr Kirkwood said that he had contacted Lindores (Mr Reid’s employer) and they were carrying out their own process, but Broad’s position was that until they had any formal complaints, there was nothing to investigate. He said that Mr Millan would be returning that day.

Events on 27 July 2020

90    On Monday, 27 July 2020, about 85 Employees attended the site, but did not perform any work.

91    A HS Committee meeting was held at about 6.25 am. It became quite heated, with the HSRs expressing their concerns that Broad was not taking any action against Mr Millan and Mr Kirkwood saying that they should take the issue up with their employers. Mr Mattas said that they would not go through their employers because they were concerned about their jobs, and added that Mr Millan was Broad’s employee. Mr Kirkwood said that their concerns were not going to be investigated because there was no complaint to investigate. Mr Mattas told Mr Kirkwood that the Employees would not go back to work because Mr Millan was on site.

92    Mr Kirkwood then received a call from Mr Blakeley stating that the Employees would not be performing work until the bullying complaints against Mr Millan had been addressed.

93    Mr Mattas’ evidence, which I accept, was that he and the HSRs then reported back to their work groups, as follows:

(a)    Mr Uren and Mr Mattas both spoke to the Placecorp Concrete employees;

(b)    Mr Bushnell and Mr Mattas both spoke to Action Formwork and Statewide Steelfixing employees together;

(c)    Mr Mattas spoke to the Liebherr Cranes, Rovera Scaffolding and SRG Global workers, who were in the same room;

(d)    Mr Mattas spoke to Lindores Personnel and L&D Contracting workers together;

(e)    Mr Mattas spoke to miscellaneous employees who did not have a designated work group.

94    Although Mr Kren was the HSR for Statewide, he did not speak to the Statewide workers. That was because he had not undergone the requisite HSR training. Accordingly, it was Mr Mattas who gave the direction to cease work to the Statewide workers. I infer that this was also the case on 21 July 2020.

95    Each HSR made reference to s 85 of the WHSQ Act and provisions of the various enterprise agreements providing for cessation of work for workplace health and safety reasons. Mr Mattas considered that the risk was identified as “imminent” because Mr Millan was back on site. Mr Mattas told each of the work groups words to the effect:

This guy is out of control. You saw what happened with Bobby, he’s now on stress leave. More and more workers from different work groups, that aren’t on the safety committee, are coming forward and saying that they have also been subject to Phil’s abuse and Phil’s threats. It’s only a matter of time until another worker goes off sick, so we have to act now. We all work in construction, we know how many suicides there are, and this kind of bullying leads to depression and, worse, suicide.

96    The HSRs told their work groups that Mr Millan was back on site and that Broad’s position in relation to his attendance was non-negotiable.

97    The Employees then stayed in the sheds all day and did not perform any work.

98    The HSRs did not consult the Subcontractors prior to giving directions to stop work. To the extent they had discussions with their employer after giving the directions, they communicated their position that work would not resume until Mr Millan was removed, and did not present any other option. I find this was not consultation.

99    Mr Blakeley telephoned Camillo Masci, Broad’s General Manager at about 1.30 pm on 27 July 2020. Mr Blakeley stated that Broad had a problem with their Project Manager. A discussion followed about the absence of complaints having been made, and assertions by Mr Blakeley that he held statements from employees. Mr Blakeley then concluded the conversation by stating that the Employees would not go back to work until the imminent risk was resolved.

Events on 28 July 2020

100    On Tuesday, 28 July 2020, about 130 Employees were scheduled to be at the site, but only 37 employees attended. Mr Millan was present at the site.

101    Mr Mattas and the HSRs told the Employees who were present that there had been no change to Broad’s position and that “the psychosocial hazard” had not been removed from the worksite. The Employees were given a direction to cease work under s 85 of the WHSQ Act and cl 9.9 of the Enterprise Agreements.

102    The Employees who had attended did not perform any work that day.

Events from 29 July to 4 August 2020

103    From Wednesday, 29 July to 4 August 2020, Mr Millan was at the site.

104    Although about 130 Employees were scheduled to work, only the following numbers attended the site:

(a)    on 29 July, 26;

(b)    on 30 July, 20;

(c)    on 31 July, 17;

(d)    on 3 August, 16;

(e)    on 4 August, 17.

105    On each day, Mr Mattas and the HSRs reported to the Employees who were present that Mr Millan was on site and directed them not to work. They did not work on each of those days.

106    On 4 August 2020, Logan J granted an interlocutory injunction restraining Mr Mattas, Mr Blakeley and the Union from organising, encouraging, procuring or inducing any persons employed to perform work at the Project to engage in unlawful industrial action: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Inner City South State Secondary College Case) [2020] FCA 1147.

107    The subcontractors’ employees then returned to work on 5 August 2020.

The history of Mr Millan’s conduct

108    The concerns held by Mr Mattas and the HSRs about Mr Millan’s conduct on 21 July 2020 must be seen in the context of his behaviour on a number of prior occasions.

109    Mr Millan commenced as a Project Manager at the site in July 2020.

110    The respondents’ witnesses gave evidence about conduct by Mr Millan that they characterise as bullying and intimidatory behaviour. Mr Mattas regarded Mr Millan as particularly hostile towards HSRs. He states that Mr Millan had a very loud voice and would not hesitate to shout or yell in order to convey his point. Mr Millan had an attitude that Mr Mattas describes as “my way or the highway”. Mr Millan had an imposing physical presence, being approximately 6ft 4in in height and having a solid build.

111    Mr Mattas’ evidence was that he was shouted at by Mr Millan at least twice each week. He gives a number of examples of Mr Millan’s intimidating behaviour.

112    In about February 2020, Mr Mattas needed to speak to Mr Millan about the gradient of the ramp he considered to be too steep and for which there were no steps or handrails and no edge protection. Mr Millan did not accept there was a problem and when Mr Mattas maintained that legal requirements had not been complied with, Mr Millan said:

Don’t try and tell me that I’m acting illegally, you’re acting fucking illegally. You need to get back to work. If you don’t, you will be in trouble.

113    In February 2020, a poster in the crib room about safety at work had been ripped down and on the paper that remained on the wall were written, words to the effect of, “Bring back the ABCC”. Mr Mattas approached Mr Millan and asked him not to pull down posters in the crib room. Mr Millan said they had to remove the poster because it did comply with the new Building Code. Mr Mattas continued to put up posters but anything that had the Union’s name or the Eureka flag would be ripped down.

114    In about March 2020, Mr Millan approached the Employees who were taking shelter in the sheds, and said:

What the fuck are you doing? Get out there. This is unlawful. This is unlawful industrial action. You guys are breaking the fucking law. We’re here to build a school for the fucking kids. I’m not fucking copping it.

115    Mr Millan’s face was red and he was shouting. Mr Mattas told Mr Millan he could not talk to people like that and asked him to restrain himself. Mr Millan said:

I’ll talk to people however the fuck I want to talk to them. This is my job site!

116    Mr Millan then stormed out of the room, slamming the door.

117    One day in about April 2020, the traffic controllers had worked in excess of their eight hours and were approaching their tenth hour. The traffic controllers told Mr Mattas they were fatigued, and they wanted to shut the gates so they could go home.

118    Mr Millan approached Mr Mattas and said, “You’re not shutting the fucking gates”. He added:

If you leave, you’re getting the fucking boot. I’ll get CPB’s lawyers onto you, and they’ll fucking do you.

119    Mr Millan then told Mr Mattas, “You’ll be fucking gone before I’m gone”. He also threatened to have two traffic controllers replaced. Mr Millan then placed himself behind the gates and physically prevented the traffic controllers from shutting the gates. He also said:

If you abandon the gates, that’s a breach of the TGS, and if you do this I’ll be contacting another labour hire company and Lindores will be off the job.

120    In May 2020, the traffic controllers wanted to go home after they had completed their contracted hours. Mr Mattas told Mr Millan that they had been doing massive hours, and could go home if they wanted.

121    Mr Millan told Mr Mattas words to the effect of:

If you tell them to leave, you will be breaking the law. I will get CPB’s lawyers on to you. You’re going to be gone before you know it. The ABCC will hear about this. You’ll be fined.

122    Mr Millan continued to yell at Mr Mattas for about 10 minutes. Mr Millan positioned his body so as to prevent the traffic controllers from locking the gates. When Mr Mattas said that they were going, Mr Millan said to Mr Mattas words to the effect of:

Bullshit! You’re fucking abandoning your post.

123    On 30 June 2020, there was an incident relating to a safety issue that had arisen as a result of Broad’s decision to replace barriers that separated the trucks that were entering the site from the workers, with bike racks. Mr Mattas considered them to be flimsy and inadequate and tried to temporarily stop that part of the work so that the issue could be rectified.

124    Mr Millan did not agree with what Mr Mattas was doing and began yelling at him. Mr Millan said:

You’re acting illegally. I’m going to get CPB’s solicitors involved. CPB solicitors are the best - they are that good, they got the Dreamworld bosses off the industrial manslaughter.

125    The conversation was so heated that Mr Bushnell started recording it. Mr Millan was yelling, “You’re acting illegally, you’re acting illegally”.

126    On 9 July 2020, Mr Mattas was involved in an incident with Mr Millan during the course of a wet weather walk. Whenever Mr Mattas raised a safety issue, Mr Millan would say words like, “That’s bullshit, you are taking the piss”, or, “You are fucking kidding”, or, “If you don’t start work because of that, you will be breaking the law”.

127    Mr Mattas states that Mr Millan would also call him names at least once a week, such as “Union thug”, “dickhead”, “fucking troublemaker”, “fucking Union pest”, and “fucking cunt”.

128    Mr Mattas states that Mr Millan would take out his phone and start filming or taking photos of him if they were engaged in a contentious conversation. Mr Millan would say things like, “I’m going to report you to the Police”, or, “I’ll be contacting the ABCC and reporting you”.

129    Mr Mattas states that Mr Millan’s threats to report him to the police and the Australian Building and Construction Commission made him feel intimidated, increased his anxiety and caused him concern about his ability to effectively perform his HSR role.

130    Mr Reid’s evidence is that Mr Millan would speak to him in an overbearing, intimidating and rude manner which indicated that he had little regard for the work Mr Reid was doing as a HSR or as a traffic controller.

131    Mr Reid gives evidence that in February 2020, Mr Millan tried to have him removed from his position at the Project. Mr Reid’s evidence concerning the incident does not establish that it was Mr Millan who sought to have him removed, but that was certainly his belief.

132    Mr Reid raised concerns in the HS Committee meetings about Mr Millan’s conduct towards him and other workers. For example, Mr Reid said if he challenged or questioned Mr Millan’s directions, his response was to scream and yell and tell Mr Reid he was acting illegally. Mr Reid referred to an incident where Mr Millan asked what Mr Blakeley’s vehicle was doing on site and said that private vehicles were not allowed on site. Mr Reid said it was his decision to make, that Mr Blakeley was there to talk to Broad and that if he had an issue, he should tell Mr Reid’s employer and have his employer direct him not to let private vehicles on site.

133    In response, Mr Millan said, in a loud and threatening way, words to the effect of:

You’re acting illegally; I have the rights - you don’t have the rights. If you don’t obey me, I’II talk to your employer and I’ll have you removed. You’ll be down the road faster than you know what’s happening.

134    On 21 July 2020, Mr Millan had the confrontation with Mr Reid previously described. When Mr Kirkwood indicated no complaints about Mr Millan’s behaviour had been brought to his attention by Ms Craigie, Mr Reid felt shattered because it seemed that Mr Kirkwood was telling him that the workers would just have to deal with Mr Millan’s behaviour for the foreseeable future because it wasn’t going to change and Broad did not consider it to be an issue worth addressing.

135    Mr Reid felt scared for his employment at the Project and was concerned about his mental health because Mr Millan’s threats had really rattled him and he knew that nothing was going to change. After work that day, he went to a doctor and obtained a medical certificate diagnosing him with stress and an adjustment disorder arising from the bullying he experienced at work. He applied for workers’ compensation because he felt unable to return to work at the Project. He did not return to work until October 2020.

136    Mr Sheldrick’s interactions with Mr Millan were limited to his involvement on the HS Committee. He was aware that concerns about Mr Millan’s behaviour had been expressed by Mr Mattas and Mr Reid.

137    Mr Uren relays an incident where, shortly after being elected to the position of HSR, he was called into a meeting with Mr Kirkwood and Mr Millan. Mr Millan then asked him questions about why Placecorp had determined not to use “kibbles” on the Project. Mr Uren felt intimidated.

138    Mr Uren relays another incident on 9 July 2020 when the HS Committee was conducting a wet weather walk. Mr Uren noticed that there were a few steel fixers and other miscellaneous trades that were working in an area not yet reopened by the HS Committee. The workers said that Broad had told them the area had been opened and they were to get to work. Mr Uren told Mr Millan that they shouldn’t be working there as the area had not been opened by the HS Committee. Mr Millan told Mr Uren:

You’re a fucking idiot, they can all work over here if they want to. There’s no fucking issue here.

139    Mr Uren responded:

You do not speak to me like that. We can step outside, if you are going to speak to me like that.

140    Mr Uren walked away because he was angry and shaken by the way Mr Millan had spoken to him. Mr Uren says his reaction to Mr Millan’s abusive and aggressive behaviour came about because he had past anger issues that he had worked hard to overcome.

141    Mr Bushnell states that in June 2020, Broad had removed the water barriers that were acting as a physical barrier between workers and the moving plant and replaced them with bike racks. He considered the bike racks to be an inadequate physical barrier. Mr Mattas and Mr Bushnell told Mr Millan they thought that the bike racks were unsafe and work needed to stop while proper physical barriers are arranged. Mr Millan said:

No, you’re not doing this. You’re not stopping work. If you stop work you’ll be acting illegally.

142    Mr Bushnell told the Action Formwork employees they were going to work somewhere else as it was not safe there due to the lack of physical barriers. Mr Millan said:

You are all a bunch of dumb cunts. You all need to know who the king is around here. I’ll give you a clue, it’s the one with the money and that is not you.

143    On about 23 July 2020, Mr Blakeley, Mr Mattas and the HSRs began collecting statements of employees about Mr Millan’s behaviour to support a complaint to WHSQ. These statements were not provided to Broad. Mr Blakeley asserts that was because of fears that the Employees may be subject to reprisals.

144    There were 24 statements of employees provided to WHSQ. Copies of the statements with the names of the persons making the statements redacted were placed in evidence. Some are substantially indecipherable. Most appear to be statements of HSRs concerning Mr Millan’s abusive comments during disagreements about health and safety issues. These include a number of the events that have been described above and the event in the HS Committee meeting on 21 July 2020.

145    There are two statements of workers describing Mr Millan’s interaction with Mr Reid in the shed on 21 July 2020.

146    One worker recounts getting into trouble with Mr Millan for not wearing safety gloves and goggles. One worker describes getting into trouble for opening the gate before 7.00 am contrary to Mr Millan’s instruction. Another worker describes an incident on 21 July 2020 when Mr Millan yelled at him and two others, “I’m fucking over with working with you fuckwits”.

147    One of the statements appears to be from a Broad employee who said that Mr Millan would ask her to do his ironing and engage in sexist behaviour. Another appears to be from a former Broad employee who indicates that he resigned as a site supervisor because of Mr Millan’s bullying and undermining behaviour.

148    As I have said, Mr Millan was not called to give evidence and the evidence of the witnesses about his behaviour is uncontradicted.

149    I find that at the Project, Mr Millan would regularly engage in conduct that was aggressive, abusive and intimidating. That behaviour can be characterised as bullying. I find that Broad was aware of complaints concerning Mr Millan’s behaviour prior to 21 July 2020, but did nothing about it.

150    It is necessary, however, to give some context to Mr Millan’s behaviour. First, most of Mr Millan’s bullying conduct was in the context of genuine disputes about health and safety issues. For example, in a number of incidents where HSRs considered that work should not proceed, Mr Millan evidently considered that stopping work would be unlawful. In April and May 2020, Mr Mattas and Mr Reid took it upon themselves to close the gates despite Broad being responsible for controlling the site’s opening and closing times, leading to a heated discussion about who was or was not responsible for shutting gates and directing workers to go home. In respect of the bike racks incident, Mr Mattas said that he was going to close a part of the site and proceeded to move the barriers himself when he had no apparent right to move Broad’s equipment. After Mr Millan asked Mr Reid why he had permitted Mr Blakeley to drive a private vehicle onto the site, Mr Reid’s robust answer was that it was his decision to make, missing the point that it was Broad which occupied the property and had the right to make that decision. Mr Millan’s fault was to attempt to resolve these disputes through abusive and intimidatory behaviour.

151    Second, while the HSRs gave rather sanitised versions of the conflicts, suggesting that their words and actions were mild and tempered and contrasting Mr Millan’s behaviour, it was not all a one-way street. For example, it came out in evidence that Mr Mattas also swore at and accused Mr Millan of acting illegally, the very type of behaviour he complains of when engaged in by Mr Millan. In respect of the bike racks incident, it was Mr Mattas who first swore at Mr Millan and then instructed Mr Bushnell to film the encounter. In contrast, Mr Mattas complains of Mr Millan filming him at other times. Mr Mattas accepted that his conduct in making allegations that Mr Millan and Broad’s representatives were acting illegally was not productive of cordial relationships. I formed the impression that the HSRs were robust people who were not prepared to tolerate perceived safety problems on site and generally gave as good as they got, although perhaps not using quite the same level of abusive language and intimidating behaviour. None of the HSRs nor Mr Mattas, apart from Mr Reid, was so concerned about Mr Millan’s behaviour as to make any formal complaint to their employers or Broad about Mr Millan’s conduct prior to the events of 21 July 2020.

152    Third, in the context of conflicts about health and safety issues, Mr Millan’s bullying conduct was generally directed at the HSRs, not the other Employees. The statements gathered by Mr Blakeley and Mr Millan show that were very few Employees other than HSRs who alleged that Mr Millan had bullied them.

153    This analysis does not excuse Mr Millan’s behaviour – it was disgraceful. However, it is necessary to place his behaviour in context for the purposes of considering the reasonableness of the HSRs’ directions for all the Employees to cease work.

Relevant provisions of the BCI Act and the Evidence Act

154    The applicant alleges that the respondents contravened ss 46 and 52 of the BCI Act.

155    Section 46 of the BCI Act provided, “A person must not organise or engage in unlawful industrial action”.

156    Under s 5 of the BCI Act, there is “unlawful industrial action” if the action is “industrial action” and is not “protected industrial action”. There is no suggestion that any action was “protected industrial action”.

157    Section 7 defined “industrial action” as follows:

7    Meaning of industrial action

(1)    Industrial action is action of any of the following kinds:

(a)    the performance of building work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to building work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b)    a ban, limitation or restriction on the performance of building work by an employee or on the acceptance of or offering for building work by an employee;

(c)    a failure or refusal:

(i)    by employees to attend work, where that work is building work; or

(ii)    to perform any building work at all by employees who attend work, where that work is building work;

(d)    the lockout of employees from their work by their employer, where that work is building work.

Note:    In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2)    However, industrial action does not include the following:

(a)    action by employees that is authorised or agreed to, in advance and in writing, by the employer of the employees;

(b)    action by an employer that is authorised or agreed to, in advance and in writing, by, or on behalf of, employees of the employer;

(c)    action by an employee if:

(i)    the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii)    the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

…

158    Section 6(1) of the BCI Act defined “building work” to mean, relevantly, the construction of structures that form, or are to form, part of land, and any operation that is part of, or preparatory to, such work. It is not in dispute that the work done, or to be done, by the Employees at the Project was “building work”.

159    Section 52 of the BCI Act provided:

52     Coercion relating to allocation of duties etc. to particular person

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)    employ, or not employ, a particular person as a building employee; or

(b)    engage, or not engage, a particular independent contractor as a building contractor; or

(c)    allocate, or not allocate, particular duties or responsibilities to a building employee or building contractor; or

(d)    designate a building employee or building contractor as having, or not having, particular duties or responsibilities.

Note 1:    See also Division 2 (reason for action and coercion).

Note 2:    Grade A civil penalty.

160    Section 92 of the BCI Act provided:

92    Ancillary contravention of civil remedy provisions

(1)    A person must not:

(a)    attempt to contravene a civil remedy provision; or

(b)    aid, abet, counsel or procure a contravention of a civil remedy provision; or

(c)    induce (by threats, promises or otherwise) a contravention of a civil remedy provision; or

(d)    be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil remedy provision; or

(e)    conspire with others to effect a contravention of a civil remedy provision.

Civil penalty

(2)    A person who contravenes subsection (1) in relation to a civil remedy provision is taken to have contravened the provision.

161    Section 140 of the Evidence Act 1995 (Cth) provides:

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject-matter of the proceeding; and

(c)    the gravity of the matters alleged.

162    The relevant matters to be taken into account for the purposes of s 140 of the Evidence Act include the gravity of the allegations made. It is important that ss 46 and 52 of the BCI Act were “Grade A civil penalty” provisions, contravention of which exposes the respondents to the imposition of pecuniary penalties under ss 81(1) and (2).

163    In Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268, the Full Court held at [96] and [97] that the applicant bears the onus of proof in respect of establishing the facts alleged to constitute “industrial action”.

164    In this case, the respondents positively assert that the Employees’ failures or refusals to work are excluded from the definition of “industrial action” in s 7(1) of the BCI Act because the circumstances were such that they were under no legal obligation to work. They also assert that the circumstances brought the Employees within the exception in s 7(2)(c).

165    It is well-established that the respondents bear an evidential onus for raising any facts which might suggest the application of the matters set out in s 7(2) of the BCI Act. To discharge that onus, the respondents must adduce sufficient evidence from which the Court could (not would) infer the matters of a defence asserted by the respondents: Adams v Director of the Fair Work Building Industry Inspectorate (2017) 258 FCR 257; (2017) 351 ALR 379 at [110]. However, the legal onus remains on the applicant.

166    This was confirmed in Australian Building and Construction Commissioner v O’Halloran [2021] FCAFC 185, where Kerr and Wigney JJ held at [80]:

The Commissioner initially argued that, if the respondents relied on s 7(2) of the BCIIP Act and s 19(2) of the FW Act as establishing that any conduct engaged in by them did not constitute “industrial action” as defined in those Acts, they bore the onus of establishing that their conduct fell within one or more of the paragraphs in those subsections. Ultimately, however, the Commissioner appeared to concede that, while the respondents may have an evidential burden or onus in respect of s 7(2) of the BCIIP Act and s 19(2) of the FW Act, he as the applicant ultimately bore the legal onus of proving that the conduct engaged by the respondent employees was “industrial action” as defined. It followed that, if the respondents were able to point to any evidence which suggested that their conduct fell within any of the paragraphs of s 7(2) of the BCIIP Act or s 19(2) of the FW Act, the Commissioner bore the onus of proving that the conduct did not fall within any of those paragraphs. That concession, if made, was correct and consistent with prior decisions of this Court.

(Citations omitted.)

167    Accordingly, the applicant bears the legal onus of proving the elements of s 7(1) of the BCI Act. If the respondents have raised evidence of any matter suggesting that an element of s 7(1) has not been proved, the applicant must negative those matters. If the respondents have raised evidence of the application of any of the matters identified in s 7(2), the applicant must negative those matters.

Relevant provisions of the WHSQ Act and the Enterprise Agreements

168    Mr Mattas and the HSRs claimed to have given the Employees directions to cease work under s 85 of the WHSQ Act.

169    Section 85 of the WHSQ Act provides, relevantly:

(1)    A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.

(2)    However, the health and safety representative must not give a worker a direction to cease work unless the matter is not resolved after—

(a)     consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work; and

(b)     attempting to resolve the matter as an issue under division 5.

(3)    The health and safety representative may direct the worker to cease work without carrying out that consultation or attempting to resolve the matter as an issue under division 5 if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.

(4)    The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3).

(5)    The health and safety representative must inform the person conducting the business or undertaking of any direction given by the health and safety representative to workers under this section.

(6)    A health and safety representative can not give a direction under this section unless the representative has—

(a)    completed initial training prescribed by regulation under section 72(1); or

(b)    previously completed that training when acting as a health and safety representative for another work group; or

(c)    completed training equivalent to that training under a corresponding WHS law.

170    The expression “hazard” is not defined. The Macquarie Dictionary defines “hazard” as, relevantly, “1. a risk; exposure to danger or harm. 2. the cause of such a risk; a potential source of harm, injury, difficulty, etc…”.

171    The expression “health and safety representative” is defined in Schedule 5 as, “the health and safety representative elected under part 5 for the work group of which the worker is a member”.

172    Section 5(1) defines a “person conducting a business or undertaking” (PCBU) as someone who does so either alone or with others, whether or not the business or undertaking is conducted for profit or gain.

The allegations, the responses and the remaining issues

173    The Employees failed to perform their scheduled work on the Project on 21 July and part of 22 July 2020. They again failed to perform their scheduled work between 27–31 July and 3–4 August 2020. The applicant alleges that the Employees, or at least some of them, thereby engaged in “unlawful industrial action” in contravention of s 46 of the BCI Act.

174    Mr Mattas admits that he gave directions to the Employees to cease work. He claims to have done so in his capacity as the elected “site-wide HSR”, a position in which he claims to have represented all the Employees. The HSRs also gave such directions to cease work to the particular work groups they represented.

175    The applicant contends that Mr Blakeley and Mr Mattas organised the unlawful industrial action engaged in by the Employees or some of them. The applicant also contends that Mr Blakeley and Mr Mattas are taken under s 92(2) to have contravened s 46, and that the Union is taken under s 95(1) to have taken action that contravened that provision.

176    The applicant also alleges that Mr Blakeley and Mr Mattas contravened s 52 of the BCI Act by organising the stoppages that occurred between 27–31 July and 3–4 August 2020 with intent to coerce Broad to cease to employ Mr Millan or not allocate him duties at the site, and that the Union is also taken to have taken action that contravened that section. The applicant makes a further allegation that Mr Blakeley contravened s 52 by making a threat that the Employees would not resume work until Mr Millan was removed from the site.

177    In respect of the allegations of contravention of s 46 of the BCI Act, the applicant contends that the stoppages were “industrial action” within s 7(1) of the BCI Act as a ban on the performance of building work by employees (s 7(1)(b)); and a failure or refusal to perform building work at all by employees who attended work (s 7(1)(c)).

178    The applicant’s allegations that Mr Mattas and Mr Blakeley contravened s 46 of the BCI Act requires the applicant to prove that the Employees, or at least some of them, took “industrial action” within the meaning of s 7(1). The respondents’ arguments in response are that:

(a)    The Employees did not engage in “industrial action” by stopping work because they were under no legal obligation to perform work after they were given directions to cease work under s 85 of the WHSQ Act and cl 9.9 of Enterprise Agreement.

(b)    The stoppages were authorised or agreed to by the employer under cl 9.9 of the Enterprise Agreement and excluded from the definition of “industrial action” under s 7(2)(a).

(c)    The stoppages were based on the reasonable concerns of employees about an imminent risk to their health or safety and were thereby excluded from the definition of “industrial action” under s 7(2)(c).

179    The respondents also argue that:

(d)    Mr Blakeley did not organise any industrial action and was not knowingly involved in any industrial action.

(e)    The conduct alleged against Mr Blakeley and Mr Mattas, even if proven, does not amount to a contravention of s 52 of the BCI Act.

(f)    Mr Mattas’ actions are not attributable to the Union under s 95(1) of the BCI Act.

180    Apart from disputing a number of factual premises underlying the respondents’ arguments, the applicant submits in response that:

(a)    A direction which is not validly made in accordance with s 85 of the WHSQ Act is ineffective to relieve an employee from their legal obligation to work. The directions here were not validly made and were of no effect because:

(i)    Mr Mattas and the HSRs did not have a reasonable concern that carrying out the work would expose the Employees to a serious risk to their health or safety, emanating from an immediate or imminent exposure to a hazard; nor was the risk so serious and immediate or imminent that it was not reasonable to consult before giving the direction.

(ii)    Mr Mattas was not validly appointed as Site-wide HSR in accordance with the requirements of the WHSQ Act and was not entitled to give any direction to cease work.

(b)    A direction which is not validly made under cl 9.9 of the Enterprise Agreements does not relieve the Employees from their legal obligation to work. The directions were not validly made because there was no immediate threat to the health or safety of the Employees and the HSRs could not give the directions without consultation.

181    As to these matters, the respondents respond that:

(a)    The applicant is seeking to engage in a collateral challenge of the directions given under s 85(1) of the WHSQ which should not be permitted.

(b)    In any event, the conditions required for the giving of directions under s 85(1) and (3) of the WHSQ and cl 9.9 of the Enterprise Agreements were satisfied and the directions were valid.

(c)    Even if the conditions were not satisfied, once the directions were given, the Employees were required to comply with them and, accordingly, they were under no legal obligation to perform work, and their cessation of work was not “industrial action”.

(d)    Mr Mattas was validly appointed as HSR under s 51 of the WHSQ Act.

182    I have not sought to comprehensively describe all the issues that remain, but these are the principal ones.

The meaning of “industrial action” in s 7 of the BCI Act

183    For there to be “unlawful industrial action” within s 47 of the BCI Act, there must be “industrial action” within s 7 of that Act. I will start by considering the meaning of “industrial action”.

184    The applicant relies upon the definition of “industrial action” in paras (b) and (c) of s 7(1) of the BCI Act. Paragraph (b) refers to, “a ban, limitation or restriction on the performance of building work by an employee or on the acceptance of or offering for building work by an employee”. Paragraph (c) refers, relevantly, to, “a failure or refusal…to perform any building work at all by employees who attend work, where that work is building work”.

185    In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (2020) 297 IR 151 at [129], I held that there is no “failure or refusal” to “attend work” or “perform any building work at all” within s 7(1)(c)(ii) of the BCI Act where there is no legal obligation on relevant employees to attend or perform work: see also Australian Building and Construction Commissioner v Parker (2017) 266 IR 340 at [376]. The applicant does not challenge that holding.

186    In the North Queensland Stadium Case, I held at [119] in respect of s 7(1)(b):

Section 7(1)(b) does not operate where an employee merely fails or refuses to perform or accept or offer for building work on a particular occasion. Something more is needed. That something is the imposition or placing of a “ban, limitation or restriction” on the performing, or accepting, or offering building work.

187    The applicant alleges that the Employees participated in a ban on the performance of building work. The respondents submit that there is no evidence from which the Court could infer that the cessation of work involved the imposition of a ban. They submit that complying with a direction which has been given by persons authorised to do so under statute and the Enterprise Agreements is not a ban. They also argue there can be no ban within s 7(1)(b) where there is no obligation on an employee to perform work.

188    In the North Queensland Stadium Case, I held at [120] that:

…s 7(1)(b) is capable of applying to a ban, limitation or restriction on the performance, acceptance of, or offering for, building work even where there is no legal obligation on an employee to perform, accept or offer work”.

189    While s 7(1)(b) is capable of applying where there is no legal obligation on an employee to perform, accept or offer work, whether it does apply must depend on the circumstances of the case.

190    The respondents argue there was no “industrial action” under s 7(1) of the BCI Act because there was no legal obligation upon the Employees to perform any building work after the HSRs issued a direction to cease work under s 85 of the WHSQ Act and cl 9.9 of the Enterprise Agreements. They also argue that by agreeing to cl 9.9, the employers “authorised or agreed to” the cessation of work within s 7(2)(a) of the BCI Act.

191    I will turn to consider the issue of whether the Employees were obliged and entitled to cease work following the directions given, or purportedly given, under s 85 of the WHSQ Act.

The application of s 85 of the WHSQ Act

192    As I have indicated, the respondents argue that there was no industrial action” within s 7(1) of the BCI Act because the Employees were obliged to cease work after there were directions to do so under s 85(1) of the WHSQ Act.

193    The applicant submits the Employees remained legally obliged to work because the directions were, for two reasons, invalid. The first is that Mr Mattas was not a “health and safety representative” within s 85(1) as he was not validly appointed to that position and was not entitled to give any direction. The second is that the conditions under s 85(1) for the giving of directions were not satisfied because there was no “reasonable concern” of exposure to the requisite “serious risk”.

194    The respondents’ first submission in response is that the applicant is making a collateral challenge to the validity of the directions which should not be permitted. I will start by considering that submission.

Whether the applicant’s challenge to the directives is an impermissible collateral challenge

195    The respondents submit that it was open to Broad and the Subcontractors to have made an application for judicial review of the directions to cease work pursuant to Pt 5 of the Judicial Review Act 1991 (Qld) (the JR Act). They submit that the applicant should not be permitted to bring a collateral challenge to the directions in this proceeding.

196    The applicant submits that the issuing of the directions did not involve any administrative decisions that were amenable to judicial review under the JR Act. The applicant also submits that a collateral challenge should, in any event, be permitted.

197    In Ousley v The Queen (1997) 192 CLR 69, McHugh J characterised a collateral challenge as follows at 98–99:

A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision….However, with the widespread availability of judicial review procedures, it conduces to clarity of thought, in my opinion, if the term “collateral challenge” is confined to challenges that occur in proceedings where the validity of the administrative act is merely an incident in determining other issues.

(Footnotes omitted.)

198    The reference to the “administrative act” in the final sentence is a reference to decisions which are the subject of judicial review, whether by way of statute or a court’s supervisory jurisdiction.

199    Part 5 of the WHSQ Act is entitled, “Consultation, representation and participation”. Division 3 makes provision for the election of health and safety representatives and the determination of “work groups”.

200    Section 50 allows a worker to ask the PCBU to facilitate the conduct of an election for one or more HSRs to represent workers who carry out work for the business or undertaking. The expression “work group” is defined in Schedule 5 to mean, “a work group determined under part 5”. If a request is made under s 50, the person conducting the business or undertaking must facilitate the determination of one or more work group of workers: s 51(1).

201    The WHSQ Act describes the position of HSR as an “office”: s 64(2). The office has a three-year term: s 64(1). There are provisions allowing the HSR to be disqualified from office: s 65.

202    The HSR has functions and powers to be exercised for the benefit of other persons, namely the welfare of other workers in their work group: s 68. HSRs are granted immunity for actions performed in the course of their duties: s 66.

203    In accordance with s 102B, a worker, employer or PCBU may notify a dispute about the exercise of the power conferred by s 85 (see the definition of “WHS matter” in s 102A) to the Queensland Industrial Relations Commission (QIRC). In dealing with a dispute, the QIRC may deal with the matter in the way it thinks fit, including by arbitration (s 102C(2)), and make any order it considers appropriate for the prompt settlement of the dispute (s 102C(3)). A person dissatisfied with a decision made by the QIRC may appeal (s 102G).

204    HSRs occupy an office created under statute and are conferred with statutory power to take actions that affect the legal rights of others. I accept the respondents’ submission that the directions were amenable to review pursuant to Part 5 of the JR Act: cf Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 at [5], [10], [65]-[66], [108], [113], [255]–[256]. It was open to Broad and the Subcontractors to seek judicial review of the directions in the Supreme Court of Queensland. In addition, it was open to Broad and the Subcontractors to notify a dispute to the QIRC under which the validity of the directions could have been determined.

205    The applicant holds a statutory office under s 21(1) of the BCI Act and is permitted to bring this proceeding under s 81(1). The question of validity of the directions arises because the respondents have pleaded that the directions were given under s 85 of the WHSQ Act such that the Employees were not obliged to perform work. The pleading necessarily implies that the directions were valid and effectual to bring about that legal consequence. It is in response to that assertion that the applicant asserts that the directions were not valid and effectual.

206    The applicant’s challenge to the validity of the directions is a “collateral challenge” in the sense that determining their validity is merely an incident in determining other issues.

207    In O’Reilly v Mackman [1983] 2 AC 237, Lord Diplock stated at 285:

…it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.

208    However, in Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 at 595–596, the Full Court accepted that a collateral challenge to an administrative decision is available to litigants in civil litigation.

209    The respondents rely on Jacobs v One Steel Manufacturing Pty Ltd (2006) 93 SASR 568, where Besanko J (Vanstone and Leyton JJ agreeing) observed at [93]:

I do not think there is any doubt that in some cases there are good reasons to allow a collateral challenge and in other cases there are good reasons to deny it. On occasions there may be cases in which a statutory provision will provide a clear answer to the question whether a collateral challenge is permitted in a particular case. Other possible factors which might be relevant in deciding that question have been discussed in the authorities and in the academic literature. I refer to two articles for a helpful discussion of the relevant factors: M Aronson, “Criteria for Restricting Collateral Challenge” (1998) 9 Public Law Review 237 and Professor Enid Campbell, “Collateral Challenge of the Validity of Governmental Action” (1998) 24 Monash University Law Review 272. The factors identified include the following:

1    Are the grounds of challenge likely to involve the adducing of substantial evidence?;

2    If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?;

3    In the particular case, does the allowing of a collateral challenge by‑pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?;

4    Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?

5    Is the issue raised by the collateral challenge clearly answered by authority?;

6    Are there other cases pending which raise the same issue?

7    (Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted?

210    This passage was cited with approval by President Davis in Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2022] ICQ 23 at [90] and [91].

211    The respondents submit that, having regard to the considerations identified by Besanko J, the applicant’s proposed collateral challenge should not be permitted for the following reasons. The making of such a challenge requires substantial evidence. Not all of the necessary parties are parties to this proceeding so that if the collateral challenge is permitted, the statutory decision of public officials may be set aside without those persons being heard from. There is no evidence that the applicant has taken any step to bring this proceeding to the attention of the relevant HSRs. Permitting the challenge would expose third parties to litigation, namely the Employees, and to the risk of the imposition of a civil penalty in proceedings brought by the applicant or the Subcontractors or Broad. The applicant has conceded that he does not have standing to seek judicial review of the directions: if the applicant does not have standing to bring a principal challenge to those directives, why should the applicant be permitted to bring such a challenge by the back door in this proceeding?

212    While I accept there is substance in a number of the respondents’ submissions, there are, in my opinion, compelling considerations pointing to a contrary conclusion.

213    The respondents accepted, as I understand their submissions, that there is a discretion to allow a collateral challenge. That may be doubtful: see Jacobs at [95]. In any event, Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512 at 549, it was held that a collateral challenge is permissible where, relevantly, an authority or public official, who is party to a civil action, pleads and relies on their own administrative act. That is precisely the position in the present case. The respondents have pleaded and relied upon the directions. Further, they implicitly assert that the directions are valid. Accordingly, it is the respondents who have raised the validity of the directions.

214    The applicant is a public officer who has particular statutory responsibilities. The applicant had no standing to challenge the directions under Part 5 of the JR Act or under s 102B of the WHSQ Act. If the respondents’ submission were to be accepted, the applicant would be prevented from carrying out a significant statutory function in a case such as this. That would be contrary to the interests of justice.

215    Further, there has been no delay by the applicant and no consequent prejudice to the respondents. The applicant moved quickly to obtain interlocutory injunctions from Logan J. The validity of the directions was firmly in issue in that application.

216    I reject the respondents’ argument that the applicant should not be permitted to bring this collateral challenge.

A reasonable concern of serious risk from immediate or imminent exposure to a hazard

217    The parties’ arguments about the second aspect of the applicant’s submission (see [193]) proceed upon the basis that it is for the Court to make a factual determination of whether Mr Mattas and the HSRs had a “reasonable concern” of exposure to a “serious risk”. The basis upon which the Court is entitled to make such a factual determination in order to determine the validity and legal effect of the directions was not explained. There may have been an assumption that these were matters of jurisdictional fact, but such approach does not gel with some parts of the arguments concerning validity and legal effect. In any event, given the parties’ extensive attention to the factual issues, I will proceed to decide them.

218    The Commonwealth and the States (other than Victoria) have enacted legislation based on the Model Work Health and Safety Act endorsed by the Workplace Relations Ministers’ Council in 2009 and finalised in 2011. The WHSQ Act was enacted in 2011 as part of that process of harmonisation.

219    Section 85(1) of the WHSQ Act provides that a HSR may direct a worker who is in a work group represented by the HSR to cease work if the HSR has, “a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard”.

220    Section 85(2) requires the HSR to consult with the person conducting the business or undertaking for whom the workers are carrying out work and attempt to resolve the matter under Division 5 before giving a direction to cease work.

221    However, s 85(3) provides that a HSR may direct a worker to cease work without consultation or attempting to resolve the matter, “if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction”.

222    The applicant argues that the “reasonable concern” required by s 85(1) did not arise. The applicant also argues that the conditions specified in s 85(3) did not arise, so that a direction could not be given under s 85(1) without engaging in the consultation required under s 85(2). The argument continues that therefore the directions given to the Employees were invalid and ineffective to excuse the Employees from their obligation to work. This part of the argument will be considered in a later section of these reasons.

223    The proper construction of s 85 is informed by the objects set out in s 3 of the WHSQ Act. It may be seen from s 3(1)(a) and (2), that the WHSQ Act aims, relevantly, to protect workers against harm to their health, safety and welfare. It applies the principle that workers should be given the highest level of protection from hazards and risks arising from work.