ABCC v CEPU
[2022] FedCFamC2G 365
Federal Circuit and Family Court of Australia
(DIVISION 2)
ABCC v CEPU [2022] FedCFamC2G 365
File number(s): BRG 344 of 2020 Judgment of: JUDGE VASTA Date of judgment: 17 May 2022 Catchwords: INDUSTRIAL LAW – Contraventions of s 499 and s 500 of FW Act – where Second Respondent exercising rights pursuant to s. 117 of WHS Act (Qld) – where requests made – whether requests were OHS requirements – whether OHS requirements applied to the premises – whether requests were reasonable – whether there was non-compliance by Second Respondent – whether the actions of the Second Respondent were improper Legislation: Fair Work Act 2009 (Cth): s 499, s 500, s 512
Work Health and Safety 2011 (Qld): s 29, s 81, s 117, s 119, s 132
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Monash Freeway Widening Case) [2020] FCA 1727
ABCC v Collier & Ors [2019] FCCA 650
Director of Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668
Division: Division 2 General Federal Law Number of paragraphs: 248 Date of last submission/s: 4 May 2022 Date of hearing: 29,30, 31 March and 4 May 2022 Place: Brisbane Counsel for the Applicant: Mr Follett Solicitor for the Applicant: Minter Ellison Counsel for the Respondents: Mr White Solicitor for the Respondents: Hall Payne Lawyers ORDERS
BRG 344 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
First Respondent
DANIEL BESSELL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
17 May 2022
UPON THE COURT FINDING THAT:
A.The Second Respondent contravened s 499 of the Fair Work Act 2009 (Cth) (“the FW Act”) when he refused to comply with the reasonable requests by Mr Waters (and Mr Mullins) and walked to DB1.
B.The Second Respondent contravened s 499 of the FW Act when he refused to comply with the reasonable requests by Mr Waters (and Mr Mullins) and walked to DB3.
C.The Second Respondent contravened s 500 of the FW Act when he attempted to exercise his rights pursuant to s 117 of the Work Health and Safety Act 2011 (Qld) and acted in an improper manner.
D.The First Respondent contravened s 499 of the FW Act and s 500 of the FW Act on each occasion on which the Second Respondent contravened those sections of the FW Act.
THE COURT ORDERS THAT:
1.The matter be adjourned to a date to be fixed for a penalty hearing in the Federal Circuit and Family Court of Australia sitting at Brisbane.
2.The parties are to provide suitable dates for penalty hearing and directions for the conduct of the penalty hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
Introduction
On 3 July 2018, the Second Respondent, Daniel Bessell, entered the site of the Hedge construction project acting under powers given to him by the Work Health and Safety Act 2011 (Qld) (“the WHS Act”). The Second Respondent subsequently engaged in behaviour that caused him to telephone WHS officials and caused the site managers to telephone the police.
The issue for this Court to determine is whether that behaviour of the Second Respondent contravened the Fair Work Act 2009 (Cth) (the FW Act) and, if so, whether the First Respondent, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”), had therefore also contravened the FW Act.
Background
The Hedge construction project involved the construction of a six level residential and commercial development. There were to be 95 residential apartments and five commercial shop tenancies built at the site. The site was located at 1-5 Bermagui Crescent at Buddina on the Sunshine Coast.
RGB Constructions Pty Ltd were the principal contractor for this project and Nigel Waters was the project manager overseeing the project for the contractor. The site fronted both Bermagui Crescent and Lowanna Drive with the site office situated on the corner of Bermagui Crescent and Tumut Street.
Construction began in October 2017. The construction was completed in December 2018.
The Second Respondent is an organiser employed by the First Respondent. He has held this position since March 2009. His expertise is in the electrical trade and the members that he supports are electrical tradesmen. His role is to support members with disputes and disciplinary matters and to conduct safety inspections in workplaces that employ workers who are eligible to be members of his Union. He is also involved in negotiations for Enterprise Bargaining Agreements and he conducts meetings with members and recruits new members for the Union.
Robert Gould is also an organiser employed by the First Respondent. He has been in that position since July 2013. His expertise is in the plumbing trade and he performs the same duties as the Second Respondent but with the emphasis on plumbing tradesmen.
Legislative provisions
Construction sites are dangerous for obvious reasons. Entry to construction sites is the purview of the owner of the site or the principal contractor and entry is controlled by them. However, the law allows exceptions to this rule which are governed by provisions of the FW Act.
Section 512 of the FW Act provides that
The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.
The Queensland Parliament passed the Work Health and Safety Act 2011 (Qld) in 2011. That Act allows for entry on to construction sites by persons who have a WHS entry permit. Section 134 of the WHS Act allows for the Industrial Registrar to issue a WHS entry permit to a person if the Industrial Registrar has taken into account certain matters. Those matters include, pursuant to s 132, “the object of allowing union right of entry to workplaces for work health and safety purposes”.
The Industrial Registrar is not permitted to issue a WHS entry permit to an official of a union unless the Industrial Registrar is satisfied that the official is an official of the union, has satisfactorily completed the prescribed training and holds an entry permit under the FW Act.
Section 117 states that:
(1)A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act…
(2)The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.
Pursuant to s 119,
(1)A WHS permit holder must, as soon as is reasonably practicable after entering a workplace under this division, give notice of the entry and the suspected contravention, as prescribed by regulation, to –
a. the relevant person conducting a business or undertaking; and
b. the person with management or control of the workplace.
Both the Second Respondent and Mr Gould had entry permits pursuant to the Queensland WHS Act and the FW Act.
Section 499 of the FW Act provides:-
A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.
Section 500 of the FW Act provides:-
A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
3 July 2018
On 2 July 2018, the Second Respondent said that he was travelling by the construction site. He said that he could see straight into the work area and knew that there was a hole in the middle of the construction zone. He said that he noticed that the switchboard appeared to be mounted on a handrail and knew this to be a dangerous practice.
He said that he could see that there were no lunch sheds on the site. He said that he observed this as he was driving very slowly past the project but he did not stop or get out of his vehicle. He said that what he saw caused him to have the suspicion that there were safety contraventions occurring at the project.
He said that he then called Mr Gould as well as another person known as Michael Davis who was an organiser with the CFMEU. He said that he told those two persons about what he had observed from his drive past the project. He told Mr Gould that he was going to conduct an inspection the following day and Mr Gould said that he would also attend.
The Second Respondent said that because Mr Davis’ expertise was scaffolding, he thought that having Mr Davis present would be helpful in determining whether the scaffold was “safety compliant”.
Mr Davis did not have an entry permit under the FW Act and therefore did not have a permit under the WHS Act.
Both the Second Respondent and Mr Gould prepared entry notices pursuant to s 119 of the WHS Act. Those entry notices are instructive.
The entry notice of the Second Respondent lists the suspected contraventions as:
·inadequate amenities
·inadequate access and egress
·non-compliance with AS 3000/3012 (which related to the electrical set up)
The entry notice of Mr Gould lists the suspected contraventions as:
·management responsibilities
·Plant and equipment
·an unsafe work environment as a result of persons at the workplace not having the capacity or capability to respond to an “ancident”(sic)
·inadequate emergency and evacuation procedures
·inadequate amenities
·first aid/amenities
Notwithstanding that there were no workers on the worksite who were members of the Union, nevertheless, the entry permits of the Second Respondent and Mr Gould do allow them entry to the site. Mr Davis had no right to enter the site.
It is curious as to how Mr Gould was able to form a reasonable suspicion (under s 117(2) of the WHS Act) as to the contraventions he listed on his entry notice, given that he had no knowledge of the site other than what he was told by the Second Respondent. The suspicion of the Second Respondent was formed only by a slow drive past the site. The contraventions he has listed on his entry notice were justified based on what he had seen.
On 3 July 2018, at around 11:45 hours, the Second Respondent, Mr Gould and Mr Davis went into the site office. They were greeted by the site manager, Jason Burr. Mr Burr went and informed the project manager Mr Waters that the three men were there. Mr Waters then contacted Philip Mullins who was the safety and environment advisor for the project.
The three men introduced themselves to Mr Waters and showed him their entry permits as well as their section 117 notices. When asked for his Federal entry permit, Mr Davis replied “I’m here on an 81(3) - I don’t need a permit”. This would seem to be a reference to s 81 of the WHS Act. This section applies if a matter about work health and safety arises on a workplace and the matter is not resolved after discussion between the parties to an issue. Subsection 3 allows a representative of a party to an issue, to enter the workplace for the purpose of attending discussions with a view to resolving the issue.
Those circumstances clearly did not apply in this case. At that point, there was no “dispute at the workplace” and there had been no “discussions about the dispute that led to the matter not being able to be resolved”. Mr Davis was certainly not “a representative of any party”. Mr Davis was quite dishonest in attempting to gain entry to the workplace.
All three men signed into the Site Visitor Register when requested to do so by Mr Waters. The Site Visitor Information/Requirements sheet was also shown to the men who all acknowledged seeing that document. I marked this document as Exhibit 1. Mr Mullins pointed out the requirements which apply to all visitors on site as the three men were signing the register. Those requirements were that the visitor:-
·must be escorted by an inducted person at all times while on site.
·If at any time the visitor become separated from the inducted escort, the visitor must make their way to the site office
·must not enter exclusion zones
·must comply with s 29 of the WHS Act, namely:
·take reasonable care for his or her own health and safety
·take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons
·comply, so far as a person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking (i.e. RGD Constructions) to allow the person conducting the business or undertaking to comply with the WHS Act
Mr Waters gave evidence that he had met the Second Respondent before but had not met either Mr Gould or Mr Davis. When asked why he allowed Mr Davis to come on site, Mr Waters said that he wanted to “keep the peace” and work constructively with the unions over any problem that they may have.
Entry onto the site
To gain an appreciation of the site, the diagram which was annexed to the affidavit of Mr Waters is reproduced. I have made it Annexure 1 to these Reasons which is found at the end of these Reasons.
Around midday, the three organisers, together with Mr Waters, Mr Mullins and Mr Burr, went through the site entry gate and onto the construction site. Before entering the gate, Mr Waters said to the three organisers:
You must remain accompanied with us at all times. We will first view the entire site from the top of the stretcher stair where we will muster. We can look at the site, address any concerns, and if you wish to look at any particular section, we will accompany you to that point.
According to Mr Waters, the three organisers were nodding their heads in agreement as he said this and followed him onto the construction site heading in the direction of the muster area. Mr Gould acknowledged that Mr Waters had said these words during his evidence. The Second Respondent said that he did not hear Mr Waters say these words.
I accept the evidence of Mr Waters on this point. I do not accept that the Second Respondent did not hear these words.
As the group began to walk to the muster point/stretcher stairs, the Second Respondent stopped at a point perpendicular to the northern boundary of the construction site (I will refer to this location as the point of origin). He turned towards the first distribution board (known as DB1), which was along the northern boundary, and said “I want to look at that board”. This board was the same board that the Second Respondent had seen as he slowly drove past the site the day before. It was the basis for his belief that there had been a contravention of AS 3000/3012.
Evidence of Mr Waters
Mr Mullins responded to the Second Respondent with words to the effect “Let’s meet at the muster point and go through the issues, then we will look at them together”. The Second Respondent said “I want to look at the board now”. Mr Mullins said to the Second Respondent that “The board is 30 m away. What can you see from this far away that is such an immediate concern? We will go first to the muster point and go through the issues and then we can look at the board together”.
The Second Respondent then walked away from the group and walked towards DB1. Mr Mullins called out to the Second Respondent and said “You are unaccompanied, please come back to the muster point, we will talk about the issues and then inspect them together”. The Second Respondent replied “No, I want to see this board”.
As the Second Respondent walked away, Mr Mullins followed him telling him that he needed to return to the group. Mr Gould and Mr Davis then also followed the Second Respondent and Mr Mullins. Mr Waters also began to follow that group.
The Second Respondent stopped when he reached DB1. Mr Gould and Mr Mullins reached the Second Respondent. Mr Davis then left the group and started walking to another part of the site without asking and also unaccompanied. Mr Waters followed Mr Davis and told him that he needed him to return to the muster point. Mr Davis then walked back to DB1 and Mr Waters and Mr Burr followed.
Mr Waters said that when he reached DB1, the Second Respondent was inspecting the board and Mr Gould was looking at the sewer bypass. Mr Waters said that he then told the three organisers “Guys, this has become uncontrollable, you failed to remain accompanied with us and follow RGD policies, you’ve been uncooperative and abusive, if you fail to accompany us back to the muster point within five minutes, I’ll call the police”.
The three men ignored Mr Waters with Mr Davis telling him that “I don’t give a fuck, call the police, I’ll wait here for them”. Mr Waters kept repeating that they all needed to go to the muster point. When the five minutes had elapsed and the men had not moved, Mr Waters said “The site walk is over. This is your last chance. You need to accompany us back to the muster point so we can escort you off site or we will call the police”.
The Second Respondent refused and said that he was remaining where he was and he was going to continue to look at the distribution board. Mr Gould replied that he was going to keep looking at the sewer pit and asked about the approval that RGD had for the pit.
Mr Waters then called the police. Approximately five minutes later, the three men then left the location of DB1 and started to walk towards the muster point/stretcher stairs. The organisers were accompanied by Mr Waters, Mr Burr and Mr Mullins. As they were walking to the muster point, the Second Respondent was looking at another distribution board in the distance (DB3).
The Second Respondent asked Mr Waters “what’s that board?” Mr Waters replied that it was another distribution board but that the Second Respondent must remain at the muster point. Notwithstanding that Mr Waters had made the request to remain at the muster point, the Second Respondent kept walking past the muster point, unaccompanied and walked towards DB3.
Again Mr Mullins followed the Second Respondent and kept telling him to return to the muster point and reminding him that he was unaccompanied.
According to Mr Waters, in between the muster point and DB3 was an exclusion zone. That exclusion zone had a safety gate with a sign that said “DANGER. WATCH OUT FOR TRUCKS” with the word “DANGER” been surrounded by a red oval. According to Mr Waters, the Second Respondent ignored the signs and walked through the exclusion zone until he arrived at DB3.
The police arrived at about 12:45 PM. The three organisers refused to comply with the police officers’ directions to leave. Mr Waters said that Mr Davis asked one of the police officers whether they were giving an official “move on” order. When the police officer answered affirmatively, Mr Davis said that he refused to leave. Inspectors from WHS Queensland also arrived at site. Mr Waters eventually closed the site for the day. There was an agreement that there would be an inspection the next day. The three organisers then left.
The WHS inspectors inspected the site and had no immediate safety concerns surrounding any of the Distribution Boards.
Evidence of the Second Respondent
The Second Respondent disagreed with the evidence of Mr Waters in a number of respects.
The Second Respondent said that, as the group entered the construction site, he said to Mr Mullins that he wanted to have a look at the switchboard (DB1). It should be noted that this was a distribution board and not a switchboard. The Second Respondent said that the conversation with Mr Mullins proceeded in this way:
SR: I want to have a look at that switchboard
M: You can’t look at it. Tell me what’s wrong with it from here
SR: I can’t tell you from 30m away what I believe is wrong. I need to go and have a look at it
M: You are to stay with us. Tell me what’s wrong with that from here
SR: As I just told you, I can’t tell you what is wrong with that from here. Why can’t we just go and quickly look at it while we’re walking past?
M: No, tell me what’s wrong with it from here
SR: This is what I just told you I came to inspect. You are obstructing me from investigating the suspected contravention. Can we access that switchboard?
M: There is no access to the switchboard
SR: If there is no access to it, it can’t be in use. I can see several leads running out of it, which to me makes it look like it is in use.
As can be seen from the photographic exhibits, there had been rain the previous night and there was quite a deal of stagnant rainwater in the construction zone. The Second Respondent said that he saw that there were electrical leads tied around bollards to keep them above the pools of water. He said that he saw an electric saw plugged into the lead. He said that he became concerned that a worker, who was using the power saw, could get electrocuted if the lead fell off the bollard and landed in the water whilst the saw was in use.
He said that, from what he could see, the switchboard door faced into the construction hole and that there would be no way of turning off the power in the event of an emergency. He said he could see that the switchboard was attached to a handrail from where he was standing. (On his own evidence, he could see quite a lot wrong with the “switchboard” from where he was despite telling Mr Mullins differently.)
He said that he became concerned that there was a serious and imminent risk of a worker getting electrocuted and the power could not be disabled if there were such an event.
He said that he made a decision that he had to attend the switchboard to properly investigate his suspected contravention. He said he was concerned by the fact that he had just identified that there was an electrical cable plugged into a power tool near water. He said then he started to walk towards the switchboard.
The Second Respondent said that Mr Mullins came along with him as did Mr Gould and Mr Davis. He said that he remarked that because a switchboard cannot be accessed that it shouldn’t be in use and that there was no way of reaching the switchboard in an emergency. (Mr Waters gave evidence that the large black switch on the outside of the distribution board was a “cut off” switch.)
He said that just before he reached the switchboard, Mr Mullins told him that if he didn’t leave, Mr Mullins will call the police. He said that he replied to Mr Mullins that he was going to look at the switchboard.
The Second Respondent said that, as far as he was concerned, the “switchboard” was not compliant with AS 3000 or AS 3012.
The Second Respondent said that while he was looking at the switchboard, Mr Gould was looking at the sewer pit. The Second Respondent noted that the pit was a hole with plywood on top of it. He said that Mr Gould had said that he was going to call WHS Queensland. The Second Respondent said that Mr Mullins said that the two of them needed to accompany him to the muster point or he would call the police and Mr Gould replied that the WHS inspectors were on their way.
The Second Respondent said that Mr Mullins told the two of them that the switchboard was feeding the pump where the sewerage pit was and that’s why it could not be removed from service. The Second Respondent said that Mr Gould replied that they needed to stay on site until the inspectors come because the inspectors needed to see this.
The Second Respondent said that he and Mr Gould and Mr Davis started walking with Mr Mullins back to the muster point. He said that he noticed that Mr Waters had joined them by this time but he made no mention of where Mr Burr was. He said that, as he was walking towards the muster point, he saw another switchboard on the opposite side of the construction hole to DB1. He said that he could see an excavator parked near it and, from what he could see, it looked as though the excavator was resting on the switchboard. He said that he became concerned with what he saw.
The Second Respondent said he told Mr Mullins that it looked like the switchboard had been undermined by the excavator but that Mr Mullins made no reply. The Second Respondent said he kept walking towards that switchboard to have a closer look at it because he was concerned about the excavator becoming electrified.
At this time, he said that Mr Waters (or Mr Mullins) said words to the effect that the site walk was over. The Second Respondent said that he was not going anywhere until WHS inspect the switchboards.
The Second Respondent said that when he arrived at the site of DB3, he could see that the excavator was not actually parked on top of the switchboard but was very close. He saw that there were extension leads coming out of the switchboard and that they were strung up on temporary fencing. The Second Respondent said that he was concerned that these leads could be damaged because there were mobile plant tracks around them and that the excavator was parked near them. He said that he became concerned that the temporary fencing could become electrified.
He said that he was also concerned that another excavator was in operation right on the edge of the hole and that there were two workers standing between the edge of the hole and the excavator. The Second Respondent said that his concern was that if the ground gave way due to the excavator, both the workers and the excavator would have fallen into the hole and the excavator would have landed on top of the workers.
The Second Respondent said that he told Mr Mullins immediately about the dangerous aspect of the work that was being undertaken.
The Second Respondent said that it was about this time that the police arrived. As he was making his way to see the police, the Second Respondent said that he noticed a green pillar box that had the markings “Danger Electricity” on it. The Second Respondent considered that this was dangerous because the pillar box had been in the vicinity of plant operation. I will speak of this pillar box later in these Reasons.
The Second Respondent said that he told police that he was a permit holder and was present pursuant to the WHS Act. The police told him that he had to leave and that if he did not leave he would be trespassing.
The Second Respondent said that he told the police that he was there legally and that “the builder doesn’t get to say when we are required to leave. We have grave concerns about what’s happening here and we will be waiting until WHS Queensland inspectors arrive”. The Second Respondent said that this discussion went backwards and forwards for over 20 minutes.
Eventually, the Second Respondent said that WHS inspectors arrived and he conveyed his concerns to those inspectors.
The Second Respondent said that Mr Waters shut the site down soon afterwards and he left the site.
Evidence of Mr Gould
Mr Gould said that he received a telephone call from the Second Respondent on 2 July 2018. He said that the Second Respondent had told him that he had driven past the Hedge project and he had concerns with the switchboards. He informed Mr Gould that there may be issues with plumbing and asked if Mr Gould wished to go to the site with him the next day.
Mr Gould said that he was available and that he would go with the Second Respondent. Mr Gould said that the Second Respondent mentioned that scaffolding may be an issue and that they should ask Mr Davis to accompany them because that is his area of speciality.
Mr Gould later received a text from the Second Respondent informing him that Mr Davis was going to accompany them. The next morning, 3 July 2018, Mr Gould said that he and the Second Respondent met at 6:30 AM and discussed the visit they would undertake. He said that they wrote out the notices at this time.
Mr Gould said that they arrived with Mr Davis at the project site at 11:30 AM. He said that they eventually spoke to Mr Waters and they handed their entry notices to him. He said that Mr Davis did not have a permit but purported to enter pursuant to s 81(3) of the WHS Act.
Mr Gould said that they signed the visitors register and were handed a separate document headed Site Visitor Information/Requirements. Mr Gould said that he was shown where the evacuation points were on the site map and that it was explained to him that he needed to be escorted around the site by an inducted person.
Mr Gould said that he (and Mr Davis and the Second Respondent) were told that they were to gather at the muster point and they would discuss what they would be seeing.
Mr Gould said that as they were being led to that area, the Second Respondent stopped and said that he wanted to inspect the switchboard (DB1). Mr Gould said that Mr Mullins told the Second Respondent to “Tell me what’s wrong with it from here”. He said the Second Respondent replied that he could not inspect it from where he was and that he needed to go and look at it. When Mr Mullins again replied that he wanted the Second Respondent to tell him what was wrong with DB1, the Second Respondent said “I just told you that I can’t see what is with from here. Why won’t you just let me have a look while we’re walking past? This is what I told you I wanted to inspect. I feel like you are deliberately hindering and obstructing me. How do we access that switchboard?”
Mr Gould said that Mr Mullins replied that there was no access to which the Second Respondent pointed out that DB1 was being used as there were cords coming out of it. Mr Gould said that the Second Respondent looked at the positioning of the cords and said that workers could be electrocuted.
Mr Gould said that the Second Respondent then walked towards DB1 and that Mr Mullins followed him. He said that Mr Mullins was saying words to the effect that “You are unaccompanied; come back”. The Second Respondent did not comply with the request and kept walking. Mr Gould said that he and Mr Davis then followed.
Mr Gould said that he stopped and took a panoramic “fish eye” photograph as he was walking to DB1 behind the Second Respondent. Mr Gould said that the workers were hostile to the presence of himself, Mr Davis and the Second Respondent. He took the photograph which shows a worker raising his middle finger to Mr Gould. This photograph was marked Exhibit 2. (As well a digital copy of this photo, there is a large physical copy of this photo.)
Mr Gould said that he noticed some flagging in the walkway to DB1 that appeared to be warning people about a shallow excavation in the area. He said that he and the Second Respondent checked to make sure the area was safe to walk through and continued walking towards the switchboard.
Mr Gould said that he recalls either Mr Mullins or Mr Waters saying words to the effect of “I am going to call the police. You need to leave. This site walk is over”.
Mr Gould said that while the Second Respondent was looking at DB1, he could smell sewerage and saw a sewerage pit with planks of wood over the top of it with a traffic cone. He said that he and Mr Mullins had an exchange as to whether this was legal or not.
Mr Gould said that he then contacted WHS officers and was told that inspectors would come to the site as soon as possible. He said that he informed Mr Waters of this fact and Mr Waters told him that the police were on their way.
Mr Gould said that they then started walking back towards the muster point where Mr Waters had originally wanted them to go. As they were walking, Mr Gould said that the Second Respondent saw another distribution board in the distance (DB3). He said that the Second Respondent said “Is that another switchboard over there? It looks like the excavator is parked on top of it. I am going to make sure it hasn’t been undermined”.
Mr Gould said that the Second Respondent walked past the muster point and Mr Mullins was calling out after him, “You need to come to the muster point; site walk is over”. Mr Gould said that he told Mr Mullins that WHS were on their way and that they were not going anywhere until WHS had inspected the switchboards.
Mr Gould said that police arrived a short time later. He said that he, Mr Davis and the Second Respondent were talking to the police for quite a while because the police had said that the three of them were now trespassing and that they were issuing a move on direction.
Mr Gould said that the stand-off continued for about 40 minutes where the police were telling the three of them to leave and the three of them were refusing. Mr Gould said that the WHS inspectors soon arrived.
Other evidence
An affidavit under the hand of Alexandra Jarrett annexes a list of details taken from the meta-data of photographs taken by the Second Respondent and Mr Gould on the day. Chronologically, the first photograph taken is a photograph of DB1. It was taken at 12:08 PM.
The meta-data details the time that each photo was taken and assists when establishing the chronology of the day. This has proved a very useful guide as to the timings of what has occurred as well as illustrating what was happening on this particular day.
At Annexure 2 of these Reasons, I have reproduced all the photographs in chronological order and given a brief description. I have marked on Annexure 1, the approximate position of the photographer when the photographs were taken.
The Applicant issued a notice to produce to the Office of Industrial Relations Queensland. Through this notice to produce, the Applicant obtained copies of pages from the notebooks of WHSQ inspectors Wayne Armstrong, Greg Karlsson and Neil Caldwell from 3 July 2018 as well as the Compliance Investigations System Employer History Report (“the CIS report”) for RGD Constructions.
These notebooks and reports are admissible in these proceedings as they are the business records of the Office of Industrial Relations. They are before me as annexures to the affidavit of Wayne Jenkinson.
Problems with the Evidence -General Memory
While I accept that the witnesses were generally attempting to be as honest as they could, there were certain areas where they were not reliable. This is unsurprising given that what occurred on 3 July 2018 was not the only occasion that there were confrontations at this particular worksite. It seems that there were as many as five site visits by the Second Respondent and/or Mr Gould over the space of a few months. All witnesses were asked to give affidavits in October 2020, more than two years after the incident of 3 July 2018. When asked to recall one particular day out of a number of days so long ago, there is a real risk of conflating incidents.
The evidence of Mr Gould illustrates this point. Mr Gould was adamant that after the WHS inspectors arrived at the site, the inspectors ordered that the site be shut down. The Second Respondent had originally deposed to this fact as well. However, it was Mr Waters who shut the site down on 3 July 2018. On 4 July 2018, Mr Gould and the Second Respondent were at the site again with Mr Waters and the WHS inspectors. It was on that day (4 July 2018), the WHS inspectors ordered Mr Waters to shut the site down.
The Second Respondent conceded that he had been mistaken about when it was that the WHS inspectors shut the site down and that it was Mr Waters who shut the site down on 3 July 2018. The notebooks of the WHS inspectors and the CIS reports confirm that the site was shut down by the WHS inspectors on 4 July 2018 and not on 3 July 2018.
Yet, Mr Gould swore that he was as certain of the fact that the WHS inspectors shut the site down on 3 July 2018 as he was of any other aspect of his evidence.
Mr Gould said that he remembers 3 July 2018 very well because of the arrival and discussions with the police. He said that this was not a common occurrence and this is why 3 July 2018 stood out. Yet, the CIS reports and the notebooks of the WHS inspectors show that the police were very much involved on 4 July 2018 as well. On that day, Mr Davis was refused entry because he did not have an entry permit. He refused to leave and was arrested by police and taken to the Maroochydore Watch House. One would think that this was a very memorable event.
Problems with the Evidence - Exclusion Zone
Mr Waters swore that the exclusion zone on Bermagui Crescent had an extended concertina gate with a sign that said “DANGER WATCH OUT FOR TRUCKS”. However, the photographs that were taken on the day do not show any gate or any signage that would clearly designate the area as an exclusion zone.
While it cannot be argued that this area was designated as loading zone and could be an exclusion zone, the evidence of signage on dates after 3 July 2018 makes it very difficult to accept that there was actually such signage on 3 July 2018.
If there were signage on 3 July 2018, I would have expected to have seen that signage on Exhibit 2 as well as Exhibit 8 (which was a short video showing the length of the exclusion zone). Given how prominent the signage is in the exhibits that depict the site after 3 July 2018, I cannot accept that such signage was present on 3 July 2018.
Again, this is not dishonesty on the part of Mr Waters but rather a failure of memory or a conflation of many events.
What facts can be gleaned using the collateral information?
Because the recall of the three witnesses was unreliable, for the reasons of which I have already spoken, it is best to look at what the Court can deduct from the collateral information in piecing together the chronology of events.
The visitor register shows that the Second Respondent, Mr Gould and Mr Davis signed in at 11:55 hours. By that time they had “read, acknowledged and understood the information detailed” in the Site Visitor Information/Requirements which was “on the opposite page” to the sign in register.
At 12:08 hours, Mr Gould has taken a photograph of DB1.
At 12:10 hours, Mr Gould has moved to a position which would seem to be halfway between DB1 and the point of origin on the Bermagui Crescent side of the site and taken a zoomed in photo of the opposite side of the excavation site. From the same position, Mr Gould has taken the “fish eye” photograph (Exhibit 2) at 12:11 hours. At this time, the photo shows the Second Respondent and Mr Davis with Mr Burr at the point of origin area on the Bermagui Crescent side of the site.
At 12:12 hours, Mr Gould has moved back to the area near DB1 and taken a photograph of the covering over the sewer pit and a photograph of the electrical box underneath DB1. According to the evidence, Mr Gould has then made a telephone call to WHS which was received by WHS.
There is a notation in the WHS information that, at 12:14 PM on 3 July 2018, WHS received a complaint from the Union. The notation reads:-
The plumbers and the ETU entered under 117. The CFMEU entered under 81. The PC allowed entry but then requested they leave after hazards were identified and requested to be rectified. The PC has called the police. The issues are? Open excavation pit full of water? Extension leads in water? Incomplete scaffold? No first aid or facilities.
At 12:14 hours, Mr Gould has moved to the Bermagui Crescent side of the site, near the muster point, and taken a photograph of DB2.
At 12:16 hours, Mr Gould is still in the vicinity of the muster point and has then taken a photo of the port-a-loo and drinking fountain. A photo of the pillar box with a witch’s hat on top of it was also taken this time. Both of these photos are taken with the photographer looking to the north of the worksite.
I note that the Second Respondent claimed to have taken the photo that depicted the pillar box with the witch’s hat upon it. That photograph was taken at 12:16 hours. Mr Gould does not claim to have taken that photograph.
At 12:17 hours, Mr Gould and the Second Respondent are at the south-western corner of the site. A photograph of the southern boundary and a photograph of the excavator are taken at this location. Both Mr Gould and the Second Respondent gave evidence that they took these two photographs. (These photographs appear as annexures in both the affidavit of the Second Respondent and the affidavit of Mr Gould with both claiming to have taken the photos. This anomaly was not made any clearer during the evidence before me.)
At 12:20 hours, Mr Gould, Mr Davis and the Second Respondent were still at the south-western corner of the site. Mr Gould took a photograph from that spot looking towards the south-eastern corner which depicted the large excavator.
At 12:21 hours, Mr Gould took a video which lasted about 31 seconds. It depicted the same area seen in the photograph (taken one minute earlier) and video swings around to show Mr Davis and the Second Respondent. It also depicted a person by the name of Mr Aiken who was an assistant to Mr Waters. In the video, the voice of Mr Gould can be heard haranguing Mr Aiken to assist workers in the south eastern corner who are “in imminent danger” according to Mr Gould. The video follows Mr Aiken as he walks from the south-eastern corner to the muster point. The video has been marked Exhibit 8.
At 12:27 hours, another photo was taken which depicted a cable lying close to a fence on the Bermagui Crescent side of the site. It is unknown who took that photo or who else was around the vicinity when the photo was taken.
It can be inferred that the police arrived after 12:27 hours. The police had been present for some time before the WHS inspector arrived at 13:00 hours.
This collateral evidence contradicts some of the evidence given by the three witnesses.
The Pleadings
The Applicant has pleaded that, by his conduct, the Second Respondent has contravened s 499 and s 500 of the FW Act.
There are four main elements that must be satisfied in order to prove a contravention of s 499 of the FW Act. These are:-
·that there is an occupational health and safety requirement that applies to the premises
·that the occupier of the premises made a request to comply with that requirement
·that the request was reasonable
·that the permit holder did not comply with the request
Occupational Health and Safety requirement that applies to the premises
In the Statement of Claim at paragraph 9, the Applicant alleges that the particular occupational health and safety requirements that applied to the premises was that:-
·a visitor to the site must be escorted by an inducted person at all times whilst on the site; and
·a visitor to the site must not enter exclusion zones on the site
The Respondents have argued that these two requirements did not amount to “an occupational health and safety requirement that applies to the premises” as that phrase is understood in s 499 of the FW Act.
The term “occupational health and safety requirement that applies to the premises” is not further defined. In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) [2020] FCA 1727, Snaden J said at paragraph 103:-
On the natural meaning of its words, the phrase “occupational health and safety requirement that applies to the premises” contemplates (at the least) obligations:
(1) that are genuinely calculated to reduce the risks to health or safety to which those in attendance at particular premises might be exposed;
(2) that are imposed by the occupier of the premises upon those who gain access there to; and
(3) upon the observance of which the occupier conditions (or, absent statutory right of entry, good condition) its grant of such access, or who has (or would normally have) some other means of enforcing.
It seems to me that what His Honour has said makes perfect sense and I accept this interpretation.
The Respondents have argued that the last few words “that applies to the premises” are the words by which the phrase must be understood. In other words, the requirement must “apply to the premises” rather than “apply to an individual”. The Respondents argue that a requirement must apply to the premises, and therefore apply to everyone on the premises, to be a requirement that fits s 499 of the FW Act. On this argument, an occupational health and safety requirement that applies to visitors would not be a “requirement” that would activate s 499 of the FW Act.
I am of the view that such an interpretation of the section is not available on a plain reading of the statute. The premises will obviously have occupational health and safety requirements depending upon the layout of the premises and the condition of the worksite. These are naturally requirements that apply to the premises. Occupational health and safety (“OHS”) requirements that apply to premises can differentiate between different classes of persons who visit premises. Different premises will have different OHS requirements.
As an example, the Commonwealth Law Courts Complex are premises. The OHS requirements of these premises differentiate between different persons who use the premises. If a fire alarm rang in the middle of a Court hearing, the OHS requirements are that the lawyers and laypeople in the Courtroom must exit through a particular fire exit. The judges and staff must exit through another fire exit. The judges are to marshal at a different location to that of the other Court staff.
If it were that a visitor were to refuse to leave the building and was subsequently told that they had failed to comply with “an OHS requirement that applies to the premises”, it would be ludicrous to argue that the requirement (to leave the building upon a fire alarm being activated) was not “an OHS requirement that applied to the premises” because there were different requirements for different persons.
It is plain upon a simple reading of the words that the requirements in question are OHS requirements that apply to the premises. This, in no way, means that the phrase “apply to the premises” is otiose; in fact, it is because of those words that the particular OHS requirements must be complied with by permit holders.
For this reason, I find that the requirement that visitors, to the Hedge construction site premises, be escorted on site, is an occupational health and safety requirement that applied to the premises on 3 July 2018. Similarly, I find that the requirement that visitors, to the Hedge construction site premises, not enter exclusion zones, is an occupational health and safety requirement that applied to the premises on 3 July 2018.
What were the requests to comply with the requirement according to the pleadings?
The Applicant has pleaded that there were both standing requests and particular requests made by the occupier of premises (in this case, Mr Waters and Mr Mullins) for the Second Respondent to comply with the requirements.
The occupational health and safety requirements were written in the Site Visitor Information/Requirements document that was given to the Second Respondent. The Second Respondent signed the visitor register which ensured that he had “read, acknowledged and understood the information detailed on the opposite page”. As noted previously, that information included the requirements that:-
·you must be escorted by an inducted person, at all times, while on site - if at any time, you become separated from your inducted escort, make your way to the site office
·you must not enter any exclusion zones
This request was pleaded at paragraph 10 of the Statement of Claim.
The other “standing request” was an oral request delivered by Mr Waters just before he led the Second Respondent (and others) through the gate and onto the worksite. Mr Waters said to the group that,
You must remain accompanied with us at all times. We will first view the entire site from the top of the stretcher stair here where we will muster. We can look at the site, address any concerns, and if you wish to look at any particular section, we will accompany you to that point.
Mr Mullins did not give evidence in this trial, however the Second Respondent conceded that, before they went out to the site, Mr Mullins said words to the effect “stick with the group”.
At paragraph 21 of the Statement of Claim, the Applicant pleaded that “immediately prior to entering the site, Mr Waters and Mr Mullins requested that (the Second Respondent) comply with the OHS requirements alleged in paragraph 9”. The particulars given were that “the requests were oral and were made by each of Mr Waters and Mr Mullins at or around the entry to the site, including by Mr Mullins drawing specific attention to the site visitor information/requirements document”.
The Applicant pleaded that a specific request was made when the Second Respondent walked off in the direction of DB1. At paragraph 22 (a) of the Statement of Claim, the request was particularised as “Mr Mullins told (the Second Respondent) that he was unaccompanied, that they should go to the muster point and then inspect the board together”.
The Applicant pleaded that a specific request was made when the Second Respondent walked past the muster point and headed towards DB3. This request was pleaded as “(the Second Respondent) refused a request of Mr Mullins that he not enter the exclusion zone” at paragraph 22(b) of the Statement of Claim.
The Applicant pleaded that a specific request was made when the Second Respondent walked past the muster point and headed towards DB3 (which is the same incident as particularised in the last paragraph). At paragraph 22 (d) of the Statement of Claim, the request was pleaded as “(the Second Respondent) refused a request of Mr Waters to remain at the muster area and not walk off unaccompanied” and “Mr Waters told (the Second Respondent) that he needed to stay with him at the muster point”.
The Respondents argue that the Applicant is confined to the requests that were specifically made at paragraph 22 (a), (b) and (d). The Respondents argue that these were specific requests which the Applicant contends were not complied with and that the “standing” requests are not to be given that same status as they were not part of what was pleaded in paragraph 22 of the Statement of Claim.
I do not accept this argument because the Applicant has pleaded at paragraph 23 that the requests alleged in each of paragraphs 10, 21, 22 (a), 22 (b) and 22 (d) were “reasonable”. There would be no reason to plead in this way if the Applicant were not alleging that the requests particularised in paragraphs 10 and 21 were not part of its case that proved a contravention of s 499 of the FW Act.
As the Applicant has said, paragraph 22 contains allegations both of requests made and non-compliance with those requests. It is the non-compliance that is the basis of a contravention of s 499 of the FW Act. At paragraph 26 of the Statement of Claim, the Applicant alleges that. by reasons of matters alleged in a number of paragraphs (which include paragraphs 10, 21, 22 and 23), the Second Respondent, by acting as alleged in paragraphs 22 (a), 22 (b) and 22 (d), contravened s 499 of the FW Act.
It seems to me that a proper reading of the pleadings shows that this has always been the case of the Applicant. I note that this was the way that the case was opened to me on the first day of the trial and it was also the way in which the litigation proceeded.
Were the requests made?
There is clear evidence that the requests to comply with the requirements were made in the Site Visitor Information/Requirements document. The document is annexure NW4 to the affidavit of Mr Waters and it is clear that the Second Respondent signed the register and by doing so stated that he had “read, acknowledged and understood” requirements.
I accept that this request was made and that the Second Respondent knew and understood that this request was made.
With respect to the verbal requests of Mr Waters as the group was about to enter the worksite, I have already found that these words were uttered by Mr Waters and I accept that the group acknowledged what he had said by nodding their heads. I find that the Second Respondent heard and acknowledged this request.
With respect to the request particularised at paragraph 22(a), I accept the evidence of Mr Waters who said that he heard Mr Mullins say to the Second Respondent that “we will go first to the muster point and go through the issues, then we can look at the board together”. I also accept that when the Second Respondent walked away, Mr Mullins said “you are unaccompanied, please come back to the muster point, we will talk about the issues and then inspect them together”.
The Respondents argue that the pleading alleges that Mr Waters said “we will go first to the muster point and go through the issues, then we can look at the board together” whereas Mr Waters, in his affidavit, deposes to Mr Mullins saying this. It was put to Mr Waters, by Counsel for the Respondents, that it was he who had said those words. Mr Waters agreed (T 40 L 4) but it was not put to Mr Waters that those words were also uttered by Mr Mullins as Mr Waters had proposed in his affidavit.
The Respondents contended that “on balance, the Court should not be satisfied that a request was made as particularised”. I do not accept that submission. It is clear that the request was made. Whether it was made by Mr Waters or Mr Mullins (or both of them) really makes no difference. The pleading does not fail simply because there is evidence that both have uttered the request. It was not put to Mr Waters that he did not make the request.
I am satisfied that the request was made as particularised in paragraph 22(a) of the Statement of Claim. I am satisfied that the Second Respondent heard the request but ignored it.
With respect to the requests particularised in paragraph 22(d), I accept the evidence of Mr Waters when he said that he told the Second Respondent that he needed to remain at the muster point.
This was put to the Second Respondent in cross examination. At T151 L 40, this question was asked:
Counsel for ABCC: And do you recall been asked to remain at the muster point, or remain where you were at the stretcher stairs?
Second Respondent: From then, no. There was - there was no point in them asking us to remain in the muster point when they actually wanted us outside the gate
The Second Respondent denied that Mr Waters asked him to remain at the muster point because, on his timeline, the police had been called and Mr Waters had already said that the site walk was over. The logic of the answer of the Second Respondent is that if Mr Waters wanted them off the site, he would hardly be asking them to remain at the muster point.
However, what Mr Waters said was “The site walk is over. This is your last chance. You need to accompany us back to the muster point so we can escort you off site, or we will call the police”. Clearly, Mr Waters wanting the Second Respondent to remain at the muster point is totally consistent with what he has said about wanting the Second Respondent to be removed from the site.
As these were the words by which Mr Waters told the Second Respondent that “they actually wanted us outside the gate”, it is clear that Mr Waters did tell the Second Respondent that he needed to go to the muster point. On the undisputed evidence, the Second Respondent did go to the muster point, even though he didn’t remain at the muster point. I am satisfied that Mr Waters told him to remain at the muster point.
The Exclusion Zone Request
Much has been made as to whether there was an exclusion zone in place on 3 July 2018. As I have earlier noted, I am satisfied that there was no clear demarcation of where the exclusion zone was actually situated.
The Respondents submit that, because paragraph 22 (b) particularised that “the exclusion zone was demarcated from the areas surrounding it by temporary fencing and had a sign affixed to it reading ‘DANGER. WATCH OUT FOR TRUCKS’”, if the Court could not be satisfied that there was such a demarcation, then the allegation, as pleaded, cannot be made out.
I do not accept this submission. The allegation is that the Second Respondent entered an exclusion zone. If the exclusion zone existed, then it does not matter whether or not it was demarcated for the allegation of “entering an exclusion zone” to be made out.
The allegation is that the Second Respondent refused a request of Mr Mullins that he not enter the exclusion zone. The manner in which paragraph 22 (b) is pleaded requires that the request is made shortly before (if not at the time) the Second Respondent enters the exclusion zone.
The only evidence that Mr Mullins made the request comes from a question asked in re-examination of Mr Waters.
In his affidavit and evidence in chief, Mr Waters did not ever contend that Mr Mullins had made the request. It was not put to the Second Respondent, during his cross examination, that Mr Mullins had requested him not to enter the exclusion zone which he subsequently entered. It was, however, put to Mr Gould that “do you recall Mr Mullins also saying to (the Second Respondent) that he was entering an exclusion zone?” to which Mr Gould replied “No”.
At T112 L 40, Mr Waters was asked in re-examination:-
Q - Do you recall what he was shouting?
A - He was just - from memory, he was continually telling them to come back; they weren’t allowed and that they were in an exclusion zone
I must be satisfied that this request was made by Mr Mullins for the pleaded allegation in paragraph 22 (b) to succeed. I note that, whilst the allegation was made in the pleadings, there was no evidence of this request in the affidavits that were read by the Applicant in proof of their case.
While I gave leave for some further evidence to be adduced in evidence in chief from Mr Waters, this particular evidence was not elicited in that exercise. The Respondents were deprived of the opportunity to cross-examine about this evidence (which is the only evidence that establishes a significant element to the allegation in paragraph 22 (b)).
Taking all matters into consideration, I am not satisfied that the request particularised in paragraph 22 (b) was made.
Were the Requests Reasonable?
The requests left for consideration for the Court are the requests particularised in paragraphs 10, 21, 22 (a) and 22 (d). To decide whether the requests were reasonable, one has to take into account all of the surrounding circumstances. The Respondents submit that there is a temporal aspect to the determination as to whether requests are reasonable. The submission is that there are times where a request will be reasonable and other times that it will be unreasonable.
The Respondents argue that a request that interfered with the exercise of the right of entry (under s 117 of the WHS Act) is not reasonable. The Respondents argue that Mr Waters and Mr Mullins wanted to delay the Second Respondent’s inspection of DB1. The Respondents argue that the request, which would give effect to delaying the exercise of the right of entry, was unreasonable.
The reasonableness of the requirement, that all visitors to the worksite be escorted, is obvious. The builder has an obvious and legitimate interest in ensuring the safety of any visitors to the worksite. Mr Waters, as the person in charge of worksite, must do what he can to protect persons from the snares and dangers that are present in any construction site. In this regard, I respectfully adopt the words of Nicholls J who said in ABCC v Collier & Ors [2019] FCCA 650 at paragraph 396:-
The reasonableness of the requirement is self-evident in the circumstances. On a busy and hazardous building site the necessity of being accompanied by a person who is a project representative, that is of the entity with ultimate responsibility for ensuring safety on the site (in this case, Lend Lease), with relevant knowledge and understanding gained by a “full induction”, is compromised if a visitor does not stay within close proximity to the person (“within the group”), and not “wander off”.
When the Second Respondent himself was cross-examined, he was asked (at T135 L 35) whether he could be on an active construction site without having seen a single document or being told anything about what the site rules are. His response was “Yes - as long as you’re accompanied by - escorted by someone”.
Mr Gould, during cross examination (at T178 L 36) conceded that, in the document he was shown, that there was a requirement to be escorted at all times by an inducted person whilst on site. He was asked whether, in his experience, such was also a common requirement on many construction sites. He answered that it was. He was asked whether he agreed that such was a requirement that was often imposed for health and safety reasons. He answered “Yes, that’s correct”.
Whilst it may be that the evidence of the Respondents illustrates the point which the Applicant makes (that such a request is self-evidently reasonable), the actual argument of the Respondents is really that a reasonable request can become “unreasonable” if it interferes with the right that the permit holder is exercising.
Contentions of the Second Respondent
The Second Respondent gave evidence which, it would seem, he now relies upon to argue that the request, that would stop him from immediately proceeding to DB 1, was not reasonable. The Second Respondent was, in effect, saying that there was such an imminent danger posed by DB1 that he needed to access it immediately because of safety concerns to workers. The Second Respondent said that he became concerned that there was a serious and imminent risk of a worker getting electrocuted and, from what he could see, there was no way to access the switchboard to disable the power if that happened.
This evidence is difficult to accept. The Second Respondent did not run or even walk briskly to DB1. There was no urgency in any of his actions. Mr Waters gave evidence that the large black switch on the side of DB1 was a cut-off switch. Given that the concern of the Second Respondent seemed to be that there was no way to disable the power, it is extremely surprising that he did not assess whether the power could be disabled (T162 L5-20).
At T160 L 40, the Second Respondent effectively resiled from the notion that he did not comply with the request because of imminent danger. His final statement on the matter is that he felt that Mr Mullins wasn’t going to take him to that board and so he made his way over there himself.
The contention made is that the requests of Mr Waters and Mr Mullins amounted to an obstruction of the rights of the Second Respondent to enter the premises pursuant to s 117 of the WHS Act. Because of that, the contention is that the request was not “reasonable”. The Respondents contend that both Mr Waters and Mr Mullins wanted to delay the Second Respondent’s inspection of DB1. That delay, and therefore the request that would give effect to such a delay, is said by the Respondents to be unreasonable.
Similarly, the Second Respondent has given evidence which, it would seem, he now relies upon to argue that the request that would have stopped him from proceeding to DB3, was also not reasonable. The Second Respondent said that he was concerned that the excavator was undermining the cable that was connected to DB3 such that any worker in that area may be electrocuted. In other words, there was an imminent need for him to ensure that the area was actually safe.
His evidence is that, as soon as he noticed the precarious position of the excavator near DB3, he walked directly to the area because of the possible danger. In other words, the same concerns and considerations that he had earlier with DB1 also applied to DB3. Mr Gould corroborated this belief as being the reason that he and the Second Respondent proceeded to DB3 (T209 L 10-20).
The contention of the Respondents regarding the inspection of DB3 is the same as the contention regarding the inspection of DB1. The requests were an interference with the exercise of the rights of the Second Respondent (pursuant to s 117 of the WHS Act) and so therefore are “unreasonable”.
Did the circumstances render the reasonable requests as now “unreasonable”?
In my view, the argument of the Respondents is fundamentally flawed because it is based upon the premise that the requests to comply with the OHS requirements that apply to the premises can only be reasonable if they do not interfere with the rights that the permit holder has pursuant to s 117 of the WHS Act. This is a classic case of putting the cart before the horse. The rights that are conferred upon a permit holder, pursuant to s 117 of the WHS Act, are subject to the compliance with s 499 of the FW Act. The wording of this section of the Federal statute is clear that a permit holder must not exercise the s 117 WHS Act rights unless the permit holder complies with the reasonable requests.
On a strict reading of s 499 of the FW Act, there are no rights to be exercised under s 117 of the WHS Act unless there is compliance with reasonable requests. To interpret that a determinative factor in deciding whether a request is “reasonable” is interference with a right that cannot be exercised unless there is compliance with a request that is reasonable, would be bizarre.
The Respondents have argued that the request to proceed to the muster point, once the “group” had entered the worksite, could not be seen as being “reasonable”. The contention is that such a direction interfered with the rights that were being exercised.
The circumstances were that the three union officials (Mr Gould, Mr Davis and the Second Respondent) all had different agendas. Mr Gould was interested in the plumbing aspects of the worksite, Mr Davis was (apparently) interested in the scaffolding aspects of the worksite and the Second Respondent was interested in the electrical aspects of the worksite. The areas, in which those interests were located, were all different and were spread over a large worksite which was dangerous to persons who were not inducted.
The directions by Mr Waters that they proceed to the muster point was extremely sensible. From that point, the group would have a very good overview of the whole worksite. The areas of interest of each of the three union officials could be easily identified and then an orderly inspection by the group could occur. It would be counterintuitive to the whole notion of safety at the worksite to simply let three union officials wander willy-nilly wherever their desire may take them.
The evidence of the Second Respondent, that he believed that Mr Mullins would not take him to DB1, does not have any basis in the objective evidence. There was never any refusal to go to DB1; instead, DB1 would be visited when the group decided on the priorities as to which parts of the worksite would be visited and in what order. However, this never occurred because of the actions of the Second Respondent.
I am satisfied that there was no imminent risk or danger to any worker which would justify non-compliance with the requests or would render the requests “unreasonable”. The actions of the Second Respondent illustrate that there was no imminent danger and his own evidence is conclusive of that.
His evidence as to the danger posed by DB3 is contradicted by the collateral evidence. His evidence that, as he was leaving DB1 and walking to the muster point, he could see the excavator near DB3 and became concerned, does not fit with what can be seen in the photograph which is Exhibit 2. Exhibit 2 was taken three minutes after the first photograph of DB1 was taken. That first photograph (taken at 12:08 hours) shows no persons near DB1. This means it was taken either before the Second Respondent inspected it or after the Second Respondent had inspected it.
Whichever it is, at 12:11 hours the Second Respondent is at the at the point of origin are, from which he first walked off, and is standing still and talking to Mr Davis and Mr Burr.
If the first photograph of DB1 was taken before the inspection, this means that the Second Respondent has arrived at DB1 (at 12:08 hours at the earliest), made the extensive observations that he said that he had made and then made his way back to where he first started and is standing still and talking within the space of three minutes.
If the first photograph of DB1 was taken after the Second Respondent had completed his inspection, it has taken the Second Respondent (as well as Mr Davis and Mr Burr), at the very least, three minutes since leaving DB1, walking back to the point of origin and stopping and conversing at the point where they are standing still and talking when Exhibit 2 is taken at 12:11 hours.
None of this speaks to any evidence of there being any imminent danger.
Because of this collateral evidence, it can be ascertained where the Second Respondent was at 12:11 hours. At 12:16 hours, the Second Respondent is at the area near the muster point. This can be ascertained because it was the uncontradicted evidence of the Second Respondent that he took the photograph of the pillar box with a witch’s hat upon it. That pillar box is located at the vicinity of the muster point (which can be clearly ascertained from a perusal of Annexure 1).
At 12:17 hours, the Second Respondent is at the south-western corner where DB3 is located. He is still there at 12:21 hours as seen on the video which is Exhibit 8.
The evidence of the Second Respondent was that he was walking back from DB1 towards the muster area when he saw the area around DB3 which caused him concern. His evidence is that he went straight to that area because of the concern.
This does not fit with the collateral evidence. The Second Respondent did stop at the point of origin at 12:11 hours. It has taken him six minutes to get from that point to DB3. This hardly speaks of any urgency.
His evidence was that he walked straight through the muster point and did not stop yet the evidence is that the Second Respondent must not only have stopped, but taken the time to take a photograph of the pillar box.
And given that the photograph is taken to the north and that the Second Respondent was walking to the south, it means that the Second Respondent has stopped, and turned around to take such a photograph. This would mean that the Second Respondent had his back to DB3 at 12:16 hours. This hardly speaks of any imminent danger posed in the area of DB3 and is quite inconsistent with the urgency of which the Second Respondent spoke.
I find that all the circumstances do not, in any way, render the requests “unreasonable”. The corollary of this finding is that the Second Respondent could not exercise his rights under s 117 of the WHS Act, unless he complied with the requests that were particularised in paragraphs 10, 21, 22 (a) and 22 (d) of the Statement of Claim.
Did the Second Respondent comply with the requests?
A rather extraordinary submission was made that the Second Respondent did comply with the requests because he was escorted by an inducted person when he walked to DB1 and to DB3. The reasoning behind this submission is that when the Second Respondent walked to, and was at, DB1, he was in the very close proximity of Mr Mullins and maybe even Mr Waters and Mr Burr who had started to follow him. When he walked to, and arrived at, DB3, the Second Respondent was also, again, in the very close proximity of Mr Mullins.
The contention is that the Second Respondent did not ever refuse to be accompanied; he just wanted Mr Mullins to take him where he (the Second Respondent) wanted to go. The contention is that there was nothing that the Second Respondent did that evidenced any unwillingness to be accompanied by either Mr Waters or Mr Mullins.
On the evidence that is before me, the Second Respondent was never accompanied or escorted to either DB1 or DB3. He was pursued by Mr Mullins who was exhorting the Second Respondent to return to the muster point and haranguing the Second Respondent about the fact that he was “unaccompanied”. Not even the Second Respondent gave any evidence that he believed that he was escorted or accompanied.
With all due respect to Counsel for the Respondents, this is a submission that reeks of desperation. It is clear that there was no aspect of “escorting” or even “accompanying” in what was being done by Mr Mullins and, to a lesser extent, Mr Waters. This was a chase of the Second Respondent by Mr Mullins. This was a pursuit of the Second Respondent by Mr Mullins.
The only description that befits such a notion (that the actions of Mr Mullins, or even Mr Waters, would amount to escorting or accompanying the Second Respondent) is the same description used by Snaden J at paragraph 196 in The Monash Freeway Widening Case (supra) which is that the notion is “patently absurd”.
The Exclusion zone
Even though I was not satisfied that the request pleaded in paragraph 22 (b) was made, there had been a “standing request” that visitors not enter exclusion zones. I have already found that I was not satisfied that there was any demarcation that displayed that the area, in effect, between the muster point and DB3, was an exclusion zone. Nevertheless, the lack of demarcation does not necessarily mean that an exclusion zone did not exist.
If the exclusion zone did exist, the Second Respondent certainly entered it. The question is whether the exclusion zone did exist on 3 July 2018. There is no doubt that Exhibit 1 illustrated that this area was a loading zone. The annexure to these Reasons has a blue shaded area which roughly corresponds to what the Applicant contends is the exclusion zone (though I note the exclusion zone did not include the green pillar box or DB2 even though these areas are shaded in the annexure).
A loading zone can be an exclusion zone though I am not satisfied that a loading zone must be an exclusion zone. I accept that when there are vehicles that are going to use that loading zone, the area must then become an exclusion zone at that time. However, if vehicles are not going to use that loading zone, there is little need for that area to be an exclusion zone.
If, on a particular day, there are going to be comings and goings of trucks, it will be necessary for that area to be an exclusion zone. But if there are no such movements, it seems unnecessary for the area to still be an exclusion zone.
On 3 July 2018, it seems to me that the loading zone was not being utilised for the movement of vehicles. The photographs do not show any open fencing that would allow the ingress and egress of vehicles. There are no traffic control workers (who would be controlling the movement in and out of the worksite) depicted in any of the photographs.
It is for the Applicant to satisfy the Court that the exclusion zone existed on 3 July 2018.
I note that it is only the evidence of Mr Waters before the Court that could prove that the exclusion zone existed on this day. However, his evidence on this point is not reliable. He has made errors, in his affidavit, as to the existence of photographs that depict the area on the day and may, like Mr Gould, have mixed up different days.
I also note that Exhibit 1 did not label the loading zone area as “an exclusion zone” and I also note that (as I have already found) there is no marking or gate such that would allow anyone in the area to understand that this area was an exclusion zone.
For these reasons, I am not satisfied that an exclusion zone existed in the area between the muster point and DB3 from 11:55 hours to 14:30 hours on 3 July 2018.
Did the Second Respondent contravene s 499 of the FW Act?
The Second Respondent was given a reasonable request by Mr Waters (and Mr Mullins) to remain escorted at all times during the site visit. The Second Respondent did not comply with those reasonable requests when he walked unaccompanied to DB1 and later to DB3.
What constitutes a contravention of s 500 of the FW Act?
The Applicant has pleaded, at paragraph 26 (b) of the Statement of Claim, that the Second Respondent contravened s 500 of the FW Act because he acted in “an improper manner”. The actions that were alleged in paragraph 22 of the Statement of Claim are alleged to be the actions that amount to “acting in an improper manner”.
The actions that are alleged to amount to a contravention of s 500 of the FW Act are as follows:-
·the Second Respondent refusing to comply with reasonable requests and walking away from the group towards DB1
·the Second Respondent refusing to accompany Mr Waters back to the muster point and then off the site
·the Second Respondent not complying with reasonable requests and walking away from the muster point towards DB3
·the Second Respondent failing to comply with requests from police to leave the site
I have spoken extensively already about the first and the third of these four dot points and, for the reasons already given, I have found those allegations proved. I now turn to the other allegations.
Allegation relating to the muster point
As has already been canvassed, in these Reasons, Mr Waters has given evidence as to what occurred whilst at the vicinity of DB1. Mr Waters said that when he reached DB1, the Second Respondent was inspecting the board and Mr Gould was looking at the sewer bypass. Mr Waters said that he then told the three organisers
Guys, this is become uncontrollable, you failed to remain accompanied with us and follow RGD policies, you’ve been uncooperative and abusive, if you fail to accompany us back to the muster point within five minutes, I’ll call the police.
The three men ignored Mr Waters with Mr Davis telling him that “I don’t give a fuck, call the police, I’ll wait here for them”. Mr Waters kept repeating that they all needed to go to the muster point. When the five minutes had elapsed and the men had not moved, Mr Waters said “The site walk is over. This is your last chance. You need to accompany us back to the muster point so we can escort you off site or we will call the police”.
The Second Respondent did not comply with this request. The question is whether this behaviour can objectively be seen has improper or can objectively, together with other proved behaviour, be seen as amounting to improper behaviour.
The Respondents contended that this request was not a reasonable request with which the Second Respondent was obliged to comply. The Respondents contended that the Second Respondent was entitled to exercise his rights of inspection. The Respondents contended that, therefore, it cannot be said that the Second Respondent has acted in an improper manner.
What I have found is that the Second Respondent had failed to comply with a reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applied to the premises when he left the group and walked to DB1. Mr Waters told the Second Respondent (and the others) that they had five minutes to comply with the reasonable request to return to the muster area. They did not do so.
Under the provisions of s 499 of the FW Act, the Second Respondent was now prohibited from exercising his right under s 117 of the WHS Act because he had failed to comply with that reasonable request. The Second Respondent was no longer “entitled to exercise his rights of inspection” as the Respondents have claimed.
The Second Respondent refused to comply with a legitimate and proper request. The Second Respondent did not have any protection under s 117 of the WHS Act because he had quite obviously contravened s 499 of the FW Act.
I accept all that was said by Flick J in Director of Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668 at paragraphs 96 and 97 as to what constitutes “acting in an improper manner”. In my view, the objective facts illustrate that the Second Respondent acted in an improper manner with respect to this request.
Allegation relating to the police
There is no contest that the police, having been contacted by Mr Waters, asked the Second Respondent to leave the premises. There is also no contest that the Second Respondent refused to comply with that request of the police. The Respondents contended that the police had no authority to ask the Second Respondent to leave the premises and so the Second Respondent could never be said to have acted in an improper manner.
At T163 L10, I asked the Second Respondent why it was that he didn’t comply with what the police had asked him to do. His response was this:-
There has been some ongoing issues over the years about whether the police are fully across the workplace health and safety legislation and our rights under section 117. In my encounters with the police that do come to site from time to time, they have little knowledge of that section, and, believing that I was there legally and was quite within my rights to stay on site until the division of workplace health and safety turned up, I told the police officers that attended that, “I’m here peacefully. The division of workplace health and safety are on their way. They should clear all this up when they get here”.
For some reason, the Respondents have focused upon whether the police had the authority to issue a “move on” direction. The Second Respondent did not say that the police had said anything about a “move on” direction to him. His evidence was that the police said to him “You have to leave. They want you to leave so you need to leave now or you are trespassing”.
Mr Gould talks about the police mentioning “move on” directions but the evidence does not make much sense. Mr Gould said that the police told him (and the Second Respondent and Mr Davis) that they were all trespassing and that the police were issuing a move on direction. He said that he debated the lawfulness of that direction with the police. He said that the police would not listen to him and kept saying “We aren’t here for safety. We are here because you are trespassing”.
Mr Gould said that after some time a more senior police officer arrived and said “We are issuing you with a formal move on direction. You need to leave immediately. We will arrest you immediately for trespassing if you don’t leave. The move on direction is valid for 24 hours”.
When Mr Gould gave evidence, he did not mention the “move on” direction. He spoke of not obeying the police directions because he believe that there was a memorandum of understanding between the State Government Office of Industrial Relations and the Queensland Police Service about the interaction of organisers on worksites. (There was no evidence of any such memorandum produced in this trial.)
Mr Waters spoke of Mr Davis having a conversation with police where a “move on” direction was mentioned.
It is trite to say that a “move on” direction applies to public places. The Hedge construction site is not a public place. I find it very hard to accept that police would have even mentioned the words “move on” when speaking to the Second Respondent. This is especially so when the Second Respondent did not say, either in his affidavit or his evidence at trial, that the police had used those words. The fact that Mr Gould did not say that they used those words in his evidence at this trial is also very telling.
Whilst it may be that Mr Gould, in his affidavit said that the police used those words, his affidavit does have substantial errors as to what happened on 3 July 2018.
I do not accept that the police said that they would be issuing a move on direction but I am satisfied that the police told the Second Respondent that he was trespassing and that they would arrest him for trespassing if he did not leave.
The Respondents contended that the police had no power to do this because any such power would interfere with the rights that the Second Respondent had pursuant to s 117 of the WHS Act. But, as already pointed out, the Second Respondent was prohibited from exercising any rights under the WHS Act because he had not complied with a reasonable request pursuant to s 499 of the FW Act.
This means that the Second Respondent was, in fact, trespassing and the police had every right to tell him to leave the premises. The Second Respondent was extremely lucky that the police did not, in the end, arrest him. This illustrates the very sensible and reasonable approach of the police which is in stark contrast with the behaviour of the Second Respondent.
But even if the police did not have the power to tell the Second Respondent to leave and mistakenly believed that they did have the power, the stance of the Second Respondent would still be improper. The police have a duty to maintain order and peace in the community. Even if the Second Respondent had an unshakeable belief that the police were wrong and that he was right, that did not mean that he should wilfully and stubbornly disobey the police requests for him to leave.
If the police were wrong and the Second Respondent did comply with their request to leave, the error of the police may have been corrected elsewhere and some form of reparation or apology given to the Second Respondent. That is how a civilised society works.
The test here is not whether the police were right or whether the Second Respondent was right. The test here is whether the actions of the Second Respondent, in refusing to comply with the requests of police, were improper; that is, do the actions of the Second Respondent fall below that standard which can reasonably be expected of those who occupy positions of responsibility.
To be in the very respectable position of union organiser is a position of responsibility. The fact that only persons of good character can be issued with entry permits pursuant to the WHS Act and the FW Act is illustrative of the position of responsibility held by the Second Respondent. For a person in such a position to wilfully disobey a police officer, no matter how wrong that police officer may be, could not be described in any other way than as being “improper”.
Was there a contravention of s 500 of the FW Act?
In looking cumulatively at the actions of the Second Respondent, he has:
(a)failed to comply with reasonable requests of Mr Waters to comply with occupational health and safety requirements that apply to the premises and proceeded unescorted to DB1;
(b)failed to comply with reasonable requests of Mr Waters to comply with occupational health and safety requirements that apply to the premises and proceeded unescorted to DB3;
(c)refused a request of Mr Waters to accompany him back to the muster point and then off site; and,
(d)failed to comply with several requests from police to leave the site.
In my view, the Second Respondent, in seeking to exercise his rights under s 117 of the WHS Act, has acted in an improper manner.
The First Respondent
The Second Respondent is the employee of the First Respondent. The conduct of the Second Respondent is taken to have been in engaged in also by the First Respondent pursuant to s 793 of the FW Act.
This means that the First Respondent was directly or indirectly knowingly concerned in the contraventions committed by the Second Respondent. Pursuant to s 550 of the FW Act, the First Respondent is taken to have contravened the FW Act on each occasion that the Second Respondent contravened the FW Act.
Conclusion
I find that the Second Respondent contravened s 499 of the FW Act when he refused to comply with the reasonable requests by Mr Waters (and Mr Mullins) and walked to DB1.
I find that the Second Respondent contravened s 499 of the FW Act when he refused to comply with the reasonable requests by Mr Waters (and Mr Mullins) and walked to DB3.
I find that the Second Respondent contravened s 500 of the FW Act when he attempted to exercise his rights pursuant to s 117 of the WHS Act and acted in an improper manner.
There is no argument that these findings mean that the First Respondent has also contravened s 499 of the FW Act and s 500 of the FW Act on each occasion of which the Second Respondent contravened those sections of the FW Act.
Having made those findings, I will allow the parties to formulate the wording of declarations that they wish me to make in accordance with these findings. I will adjourn the matter for a penalty hearing to a date I will fix upon delivery of these Reasons.
I certify that the preceding two hundred and forty-eight (248) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 17 May2022
Annexure 1
Stars indicate approximate areas from where photographs were taken.
Diamond indicates point of origin.Annexure 2
The first photograph was taken at 12:08 hours. It depicts DB1which is situated above a railing. A black electrical cable runs from DB1 into a power box on the concrete slab. In the foreground is the witch’s hat that is on top of the wooden plank that is covering the sewage pit.
Second photograph taken at 12:10hrs. Photographer is midway between DB1 and point of origin and the photo is taken by zoom. Depicted is the large excavator at south-eastern corner of the worksite.
This third photograph is Exhibit 2. It was taken at 12:11 hours using the panoramic effect giving a “fish eye” view of the worksite. The photographer is midway between DB1 and the point of origin. At the left of the photo, DB1 can be seen. At the right of the photo, Mr Davis, Mr Burr and the Second Respondent can be seen in the vicinity of the point of origin.
The fourth photograph was taken at 12:12 hours. It is taken in the vicinity of DB1 and depicts the sewer hole covered by a wooden plank with a witch’s hat on top of the plank.
The fifth photograph was also taken at 12:12 hours. It depicts the power box which is situated below DB1. The large black cable at the rear of the box feeds directly into DB1 which is situated above the box but not within the photograph.
The sixth photograph was taken at 12:14 hours. It depicts DB2 which is situated in the vicinity of the muster point and stretcher stairs. The photographer is looking to the north west with Bermagui Crescent in the background.
The seventh photograph depicts the port-a-loo and drinking fountain which is situated on the Bermagui Crescent western boundary of the worksite. This is to the west of the muster point and stretcher stairs. The photographer is facing north. This photograph was taken at 12:16 hours.
The eighth photograph was also taken at 12:16 hours. It depicts the pillar box with witch’s hat on top. This is located in the vicinity of the muster point andstetcher stairs. The photographer is looking north.
The ninth photograph was taken at 12:17 hours. It depicts the southern boundary of the worksite with the photograher situated in the south western corner of the worksite looking to the east.
The tenth photograph was also taken at 12:17 hours. It depicts the small excavator in the south western corner of the worksite. Behind the “arm” of the excavator in front of the tempoary fencing is DB3.
The eleventh photograph was taken at 12:20 hours. The photographer is at the south western corner of the worksite and is looking across the worksite to the south eastern corner and depicts the large excavator.
This video which has been marked as Exhibit 8 was taken at 12:21 hours the video is taken from the southwestern corner of the worksite and depicts the southeastern corner of the worksite and then swings to the western boundary of the worksite.
The twelfth photograph was taken at 12:27 hours and depicts the fencing somewhere along the Bermagui Crescent (or western) border of the worksite. An electical cable can be seen.
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