ABCC v CFMEU (Pacific Highway Upgrade Case) (No 3)
[2022] FedCFamC2G 388
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABCC v CFMEU (Pacific Highway Upgrade Case) (No 3) [2022] FedCFamC2G 388
File number(s): SYG 2015 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 23 May 2022 Catchwords: INDUSTRIAL LAW – where Union Officials who held entry permits, entered a building site to inquire into suspected contraventions of work health and safety laws, whether officials intentionally hindered or obstructed Seymour Whyte Constructions Pty Ltd (SWC) and/or KFC Construction Pty Ltd (KFC) from completing a concrete pour at the site of the construction of bridge number 22 (known as the ‘A22’ site) located approximately 12 kilometres north of an SWC compound located off the Pacific Highway in or near Glenugie at the corner of Wants Lane and Avenue Road, approximately 10 kilometres south of Grafton (Project Site contrary to s 500 of the FW Act – whether union liable for the conduct of its officials – pecuniary penalties (to be determined) imposed. Legislation: Fair Work Act 2009 (Cth) ss 500, 550, 793,
Fair Work Bill 2008 (Cth)
Fair Work Regulations 2009 (Cth) reg 3.25
Work Health and Safety Act 2011 (NSW) s 117
Cases cited: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) [2021] FCA 920
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473
BCG POS Pty Ltd v Construction, Forestry, Maritime, Mining & Energy Union (2019) 285 IR 43
Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64
Briginshaw v Briginshaw [1938] 60 CLR 336
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 302 IR 106
Darlston v Parker [2010] FCA 771
Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668
Jones v Dunkel (1959) 101 CLR 298
Manly Council v Byrne and Anor [2004] NSWCA 123
Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 740
Division: Division 2 General Federal Law Number of paragraphs: 163 Date of last submission/s: 9 May 2022 Date of hearing: 9 May 2022 Place: Sydney Counsel for the Applicant: Mr Chin SC and Ms Bulut Counsel for the Respondents: Mr Latham Solicitor for the Respondents: Mr Simic ORDERS
SYG 2015 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
MR DEAN LESLEY RIELLY
Second Respondent
MR PAUL FITZPATRICK
Third Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
23 MAY 2022
THE COURT ORDERS THAT:
1.Pursuant to s 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCoA Act) or s 545 of the Fair Work Act 2009 (Cth) (FW Act), declaring that the second respondent (Mr Rielly) and the third respondent (Mr Fitzpatrick) contravened s 500 of the FW Act in that they:
(a)intentionally hindered or obstructed Seymour Whyte Constructions Pty Ltd (SWC) and/or KFC Construction Pty Ltd (KFC) from completing a concrete pour at the site of the construction of bridge number 22 (known as the ‘A22’ site) located approximately 12 kilometres north of an SWC compound located off the Pacific Highway in or near Glenugie at the corner of Wants Lane and Avenue Road, approximately 10 kilometres south of Grafton (Project Site),
while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act at the Project Site on 22 August 2019 (Rielly’s Contravention).
2.Pursuant to s 141 of the FCFCoA Act or s 545 of the FW Act, declaring that the first respondent (CFMMEU) is taken to have contravened s.500 of the FW Act in that it was involved in Rielly’s Contravention and Fitzpatrick’s Contravention within the meaning of s 550 of the FW Act (CFMMEU’s Contraventions).
3.An order pursuant to s 546(1) of the FW Act imposing a pecuniary penalty, to be determined, against the CFMMEU for each of the CFMMEU’s Contraventions.
4.An order pursuant to s 546(1) of the FW Act imposing a pecuniary penalty, to be determined, against Rielly by reason of Rielly’s Contravention.
5.An order pursuant to s 546(1) of the FW Act imposing a pecuniary penalty, to be determined, against Fitzpatrick by reason of Fitzpatrick’s Contravention.
6.An order pursuant to section 546(3)(a) of the FW Act that the pecuniary penalties in Orders 4 to 6 be paid to the Commonwealth.
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 HUMPHREYS
INTRODUCTION
In an application filed on 16 November 2020, the Australian Building and Construction Commissioner (“ABCC”) seeks relief in the form of declarations and the imposition of pecuniary penalties against the first respondent, the Construction Forestry, Maritime, Mining and Energy Union (“CFMMEU”) and two of its employees, Mr Dean Rielly (“Mr Rielly”) and Mr Paul Fitzpatrick (“Mr Fitzpatrick”).
The ABCC alleges contraventions of s 500 of the Fair Work Act 2009 (Cth) (“the Act”) by Mr Rielly and Mr Fitzpatrick on 22 August 2019 at the Woolgoolga to Ballina Pacific Highway upgrade project. The proceedings against the CFMMEU proceeded on the basis of accessorial liability, by reason of the operation of ss 793 and 550 of the Act, in that Mr Rielly and Mr Fitzpatrick were employees of the CFMMEU at the relevant time.
It is broadly alleged that Mr Rielly and Mr Fitzpatrick entered a work site, as the holders of work entry permits, and positioned themselves in between the rear of a concrete truck and the site of a concrete pour, thereby preventing the truck from reversing towards a concrete pour area for the purpose of completing the pour. This caused the concrete pour to be abandoned and the contents of the concrete truck, amounting to 6 cubic metres of concrete, to be dumped, as it was no longer usable. It is alleged that one and a half days of work time was lost as a result of the actions of Mr Rielly and Mr Fitzpatrick.
THE LAW
Section 500 of the Act provides as follows:
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.
Sections 501 and 502 of the Act prohibit a person from refusing or unduly delaying a permit holder exercising rights of entry or engaging in intentional conduct that hinders or obstructs a permit holder’s exercise of the right of entry.
The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) provides some insight into the kind of conduct to which the section is directed. At [1193] it states:
Conduct by a permit holder that would hinder or obstruct a person includes action that intentionally prevents or significantly disrupts an employer or employee from carrying out their normal work duties. An example of this would be where a permit holder deliberately parks his or her car in the entrance to a building site with the intention of preventing access to the site by trucks scheduled to deliver concrete.
In BCG POS Pty Ltd v Construction, Forestry, Maritime, Mining & Energy Union (2019) 285 IR 43 at [26] the following was said:
The ordinary meanings of the words hinder and obstruct overlap. To hinder is to delay, interrupt or cause difficulty to do something or something to happen. To obstruct is to block or get in the way of something, but may refer to preventing or interfering with a physical action or the movement of something.
The following summary of the law is from Fair Work Legislation 2020-21 edited by Rinaldi, Lambropoulos, Millar and Neil at page 678. The wording of ‘hinder or obstruct’ is not defined in the Act. It has been held that in relation to ss 501 and 502 of the Act, that it refers to any act or conduct “that actually makes it more difficult” for the person who is hindered or obstructed to discharge his or her duties. The act must be not accidental nor trivial: (see; Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668 at [92] (“Bragdon”) quoting Darlston v Parker [2010] FCA 771 at [17]). Impropriety under ss 500 and 502 of the Act is assessed objectively. It requires an analysis of what a reasonable person with similar knowledge of the duties, authority and responsibility would have done in the circumstances. Intention on the part of the person allegedly acting improperly is irrelevant in this evaluation: (see; Bragdon at [97]).
In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473 per Tracey J with whom Allsop CJ agreed , at [122] stated:
[A] permit holder acts “in an improper manner” for the purposes of s 500 if he or she exercises a right, conferred on permit holders by Pt 3-4 of the [Act], without complying with one or more of the requirements of Subdivision C. The relevant impropriety is to be found in the failure of permit holders who hold privileged rights and associated responsibilities to satisfy the statutory obligations. If that failure is inadvertent or unintentional, liability will still arise but such ameliorative factors will be relevant in determining appropriate penalties for the contraventions.
Accessorial liability is defined in ss 550 and 793 of the Act. Pursuant to s 550(1) of the Act, “A person who is involved in a contravention of a civil remedy provision is taken to have contravened the provision”. Section 793 of the Act is relevantly as follows:
(1) Any conduct engaged in on behalf of a body corporate:
(a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
(2) If, for the purposes of this act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a)that the conduct was engaged in by a person referred to in paragraph(1)(a) or (b); and
(b)that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of with the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 302 IR 106, The Full Court found at [51]-[53]:
With those principles in mind, we turn to the particular accessorial liability which arises in this appeal. It has three features. First, it involves accessorial liability by the CFMMEU, a corporate person, for the direct, or principal, contraventions of the FW Act by its officials, all of whom are natural persons. Secondly, all but one of those officials (the third to eighth appellants) were concurrently permit holders under the FW Act. As earlier explained, only a permit holder can contravene ss 497 and 500 of the FW Act. The second appellant, who did not have a permit, was found to have contravened s 494, a provision that can only be contravened by an official. Thirdly, therefore, the natural persons who committed the principal contraventions, and the natural persons whose conduct and state of mind was attributed to the CFMMEU under s 793, for the purposes of s 550, namely its officials, were one and the same persons. This combination of features is, in our view, sufficient to find the CFMMEU accessorily liable for the contraventions. As Charlesworth J explained in McDermott (at [121]):
To the extent that it is necessary to show that CFMEU involved itself in some tangible way in the contraventions of its officials, there is no reason why s 793 should not facilitate proof of that requirement. Section 793 is premised on an accepted fiction that a body corporate is a separate legal entity from those who participate in it: Salomon v A Salomon & Company Ltd [1897] AC 22. Accepting that fiction, it does not matter that the deemed physical acts of the secondary participant are the same acts in fact engaged in by the primary contravener. CFMEU did not make any submission to the contrary. Accordingly, the physical acts of Mr McDermott and Mr Cartledge are, in each instance, taken also to be the acts of CFMEU. That is sufficient to demonstrate CFMEU’s participation in each contravention.
THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER’S EVIDENCE
Some 10 witnesses were called by the ABCC in support of their case. In most regards, their evidence was similar and/or corroborated other witnesses’ evidence.
It is common ground between the parties that Mr Rielly and Mr Fitzpatrick were Officials of the CFMMEU and held valid work right entry permits at the time of the incident leading to the current litigation. It is not disputed that Mr Rielly and Mr Fitzpatrick sought to exercise those workplace entry rights of the Act. It is conceded that Mr Reilly sought to recruit persons and hold discussions with workers. Issues were also raised pursuant to s 494 of the Act in relation to occupational health and safety issues pursuant to the Work Health and Safety Act 2011 (NSW) as provided for by reg 3.25 of the Fair Work Regulations 2009 (Cth) (“the Regulations”).
James Fleetwood (“Mr Fleetwood”), gave evidence. Mr Fleetwood was a project engineer in the employ of Seymour White Constructions Pty Ltd (“SWC”). SWC were contracted by Roads and Maritime Services (now, Transport for New South Wales) to construct several portions of the Woolgoolga to Ballina Pacific Highway upgrade project.
At approximately 11:50AM on 22 August 2019, together with Mr Shane Steger, an SWC supervisor, Mr Fleetwood arrived at Bridge A22 where a hand pour of concrete was taking place. Mr Fleetwood states that he observed two Union Officials, standing adjacent to the batter edge on the western shoulder of the pour talking amongst themselves. Mr Fleetwood knew they were Union Officials because he had seen them on site on previous occasions.
Mr Fleetwood approached the Union Officials and spoke to them saying, “Excuse me guys, what are you doing here? What’s going on? Can we help you with anything?” Mr Fleetwood received no answer to his questions. Mr Fleetwood then observed the Union Officials walk away from him, and position themselves behind a concrete agitator truck, restricting the concrete truck’s ability to reverse into the work area.
Mr Fleetwood was joined by another employee, Gareth Morison (“Mr Morison”). Mr Morison said to the Union Officials, “You can’t stand here. Your position is behind a concrete agitator in its blind spot. You’re in an exclusion zone and you need to move out of here”. The Union Official in an orange shirt said “No we’re not going to move. We’re going to stand here. We can fine you $10,000 and it’s a $50,000 company fine for obstructing Union Officials and denying them access to a work area”.
Mr Fleetwood said “We are not here to obstruct you, we are requesting that you move to a safe location so the relevant persons can address your issues”. The man in the orange shirt said “We don’t see any signs that say this is an exclusion zone”. Mr Fleetwood said “Have you signed onto the task card? If you sign on you can read the safety requirements regarding the exclusion zone.”
Mr Fleetwood deposed that he obtained the relevant task card from Paul Jordan, a leading hand with one of the contractors, KFC Constructions Pty Ltd (“KFC”). Mr Fleetwood then returned to the group and presented the task card to the union officials. Mr Fleetwood said “If you sign on to the task card you will understand that this area is an exclusion zone”. The man in the orange shirt said, “We have no interest in your paperwork and will be not be signing onto anything”. Eventually, the Union Official in a grey shirt said, “Fine, pass it here”. Mr Fleetwood said, “Okay, if you want to sign it you can come with me and stand over here and a safe location to review and sign it”. The grey shirted Official and Mr Fleetwood made their way to the concrete testing station, however the Union Official in the orange shirt refused to move and stayed behind the agitator truck. When the grey shirted Official saw that the man in the orange shirt was not following, he returned to the back of the agitator truck.
Both Union Officials took a number of photographs on their phones, as did Mr Fleetwood. Sometime later, Mr Fleetwood saw Nick Williams, General Superintendent of the Pacific Complete, arrive and approach Mr Morison and the Union Officials where they had a conversation. At around this time, a decision was made to dump the contents of the agitator truck that was being blocked by the Union Officials. Mr Fleetwood deposed that this decision was made collectively between himself, Mr Williams and Mr Lawson who had arrived sometime earlier. Mr Fleetwood stated that he formed the view the concrete had to be dumped because it exceeded the maximum permissible time to pour and was becoming what is known in the industry as a ‘non-conforming product’. It was necessary for a ‘stop’ to be put in place to save the concrete that had already been poured. At 1:11PM, Mr Fleetwood stated that the Union Officials left the site after the pour had been cancelled and the stop had been installed.
In cross-examination, Mr Fleetwood was unable to say how the Union Officials arrived at the site other than by suspicion. Mr Fleetwood confirmed that they showed their ID cards. Mr Fleetwood confirmed the agitator, when he first arrived, was stationary. In response to a question as to whether he asked the officials ‘to step away from behind the agitator’, Mr Fleetwood answered that he had done so and the response was “No, we want to stand here and is as it is not unsafe to do so”. Mr Fleetwood confirmed that the conversation with the Officials included questions as to where the toilet was, questions regarding the bunding of chemicals and the view by the Union Officials that there was an unprotected live edge of 400mm at the edge of the road. Questions were also asked about eye wash. In particular, there was discussion about the presence of a Spotter.
A Spotter is a person designated, through wearing a pink vest, to guide the concrete truck while reversing and to ensure that it is safe to do so.
It was put to Mr Fleetwood that one of the Officials said they were happy for the pour to continue if the work area was made safe. Mr Fleetwood replied that he was not sure. Mr Fleetwood denied that it was put to him they were trying to reverse the concrete truck with no one spotting. Mr Fleetwood denied that he was asked to get the Spotter out of the pour and that there was a need for a proper system so the concrete truck would not roll over the edge. Mr Fleetwood denied that one of the Union Officials accused him of trying to run them over. Mr Fleetwood denied that he was trying to exclude the Union Officials from the site. Mr Fleetwood remembered the Union Officials issuing a notice detailing their safety concerns, but he did not see it.
The next witness was Mr Gareth Morison. Mr Morison was employed for Seymour White Construction Pty Ltd as a leading hand in their paving division, which includes concrete pouring and placing. On 22 August 2019, a concrete pour was scheduled at the A22 bridge area. The pour site was 47m³ and required seven concrete trucks on site. At approximately 10:00AM, together with Mr Fleetwood, Mr Morison headed back to the A22 site to see how the pour was going. At this stage it was about three quarters complete and a concrete agitator truck was in the process of being tested prior to releasing its load. Mr Morison deposed that he approached two men who he did not recognise, to discuss movements and safety protocols to ensure that they did not impact on each other’s work.
Mr Morison deposed that he said “Hey guys”. A tall bearded man replied “We are from the Union. Who is the supervisor here? Are you the supervisor?” Morrison deposed that he said “Yes”. The bearded man said “We are here for OHS reasons. This isn’t right. That curing container is not bunded off”. The two men showed Mr Morrison their ID badges which indicated that they were Union Officials. The bearded man said “The safety of the work site is not adequate. There is not enough drinking water and there was not a toilet close enough to where the boys are working”. Mr Morison said “The Bostock Road crib hut is within 500m and the boys have vehicles to get there” In relation to drinking water, Mr Morison stated that the workers carry their own water bottles and in addition there were 225 litre water bottles in a vehicle close by. Morrison stated that he asked both Union Officials to sign a start card. They refused.
At around this point, the tester had finished examining the concrete agitator trucks load, and the truck was ready to be moved into position to commence the pour. Mr Morrison stated that prior to the truck moving, the Union Officials moved and positioned themselves directly behind the agitator truck, between the truck and the pour site where the concrete needed to be poured.
Mr Morison stated that he said “I’m happy to have the conversation with you guys. I’ve been pretty reasonable but I need you to move outside the exclusion zone”. The bearded man said “There is no signage to say this is an exclusion zone” Mr Morison said “That is because you have not signed on and seen the safety diagrams that we have set up”. At around this time, Mr Shane Stager joined him and the Union Officials and took over managing the situation. Mr Morison stated that he had no further interaction with the Officials after this point. Mr Morison further stated that he spoke to the concrete batching station and stopped them preparing further concrete for the A22 pour. Mr Morison then directed an employee to get some timber boards and form a concrete stop and to seal off the concrete that had already been poured to stop further wastage and loss.
In cross examination, Mr Morison agreed that issues were raised by the Officials in relation to chemicals not being bunded off. Mr Morison agreed but stated that the chemicals were contained in a watertight trailer. When the Officials started to discuss safety issues, Mr Morison stated that he was trying to get them to focus on signing a start card and to explain the safety protocols for the area, including where the exclusion zones were. Mr Morison agrees the Officials raised issues in relation to toilets, a live edge drop, and water. Mr Morison said that in relation to the issue of clearly identifying where the exclusion zone was, he stated it was delineated by witches hats and barrier tape. Mr Morison agreed that flags were part of the delineation together with some crowd barriers. It was put to Mr Morison that he really did not care what the Union Officials were saying. Mr Morison replied “No”.
It was put to Mr Morison that he had asked the truck driver to reverse back to continue the pour of the concrete after it was tested. Mr Morison replied that he was sure he did that. It was put to Mr Morison that one of the Union Officials became upset at that, and he replied that he was not sure. Mr Morison denied that he was trying to reverse the truck without someone spotting. Mr Morison denied that he was asked by one of the Union Officials to call the Spotter out of the pour. Mr Morison stated the spotter was standing where he needed to be, in order to be visible to the truck driver. Mr Morison denied that the Spotter was screeding the concrete. Mr Morison denied that any of the issues raised by the Union Officials were legitimate. Mr Morison agreed that he had not asked other Supervisors to sign the start card when they arrived.
Paul Jordan (“Mr Jordan”) gave evidence next. Mr Jordan stated that he was a qualified Carpenter and was employed as a leading hand with KFC working for the head Contractor responsible for the project, Pacific Complete and SWC. Mr Jordan deposed that, whilst the pour was taking place, he saw two men walking up the western bank from a side road to the concrete pour. At that point he did not know who they were. One was wearing an orange shirt and the other a grey shirt. One of the men walked up to and said “What kind of resin are you using to cure the concrete?” Mr Jordan said, “It is water-based with PVC”.
A few minutes later after Mr Jordan had finished spraying of the concrete, he stated that he approached the two men and asked them to sign the task card for the area. The man in the grey shirt said, “We won’t be signing that”. The man in the grey shirt said “We are Union Officials so we don’t need to sign that”. Mr Jordan stated that he then saw a supervisor, Mr Fleetwood and asked him to talk to the Union Officials.
At approximately 1:00pm a concrete agitator truck arrived. Mr Jordan stated that the Spotter however, could not signal the agitator to reverse into position to undertake the pour because a group of Union Officials and SWC managers were in the way. The agitator remained stationary during the time. Mr Jordan deposes that he heard Mr Lawson ask the Union Officials to move out of the way so the agitator could reverse into the pour. Mr Jordan stated that he heard a Union Official refuse to move saying words to the effect of “I don’t have to go anywhere”. The Union Official in the orange shirt said “I’ll stand here all day because this job is not continuing”. Mr Jordan deposed that this continued for about 20 to 30 minutes during which the Union Official in the orange shirt continually refused to move.
Mr Jordan deposes that at one point he heard Mr Lawson say “Why can’t you move”. The Union Official in the orange shirt said “This job can’t continue because it’s not safe. There was not enough water for the workers and there is no toilet in the area. There is not enough hoarding at the bank”.
Mr Jordan deposed that he was told to put a stop end in at the concrete and saw the truck leave. One of the Union Officials came up to him and the rest of the KFC crew and addressed all of them. He said “Are you in a Union”. They all said “No”. He said “Well you should be, Seymour Whyte don’t look after their workers or contractors. They are dogs. They just use cheap labour to get the job done as quickly and cheaply as possible. Do you agree with me?” Mr Lawson deposes that no-one replied.
In cross examination, Mr Jordan agreed that the issue of toilets was raised but could not recall the issue of eyewash being raised. The flagging used to delineate the work area was also complained about by the Officials as not being sufficient. Mr Jordan agreed that if the Spotter was not identifiable to the truck driver, the truck should not move. Mr Jordan disagreed that there was no Spotter on the job. Mr Jordan did not recall one of the people motioning to the truck to move backwards as the Union Officials were in the way and the truck could not start the pour. Mr Jordan disagreed that Mr Morrison tried to get the truck to start to move backwards and that one of the Union Officials complained that they would be run over. Mr Jordan did remember one of the Union Officials saying that they were “not moving anywhere”. Mr Jordan agreed that the Union Officials were complaining about the job not being safe. At one point Mr Jordan heard the Union Officials shouting “We are not going anywhere”.
The next witness was Stephen O’Brien (“Mr O’Brien”). Prior to retiring, Mr O’Brien was the Senior Safety Coordinator employed by SWC working on the Pacific Complete project. Mr O’Brien deposed had worked in the construction industry for around 42 years and in safety roles for the last 15 years of his career.
As at August 2019, Mr O’Brien deposed that he was the liaison person between the CFMMEU and SWC and Pacific Complete. Mr O’Brien stated that he had met Mr Rielly on a number of occasions in relation to the project. On 19 August 2019, the Union sent a broad right of entry notice to the Pacific Complete, for entry on 22 August 2019. It was then forwarded to SWC who gave it to Mr O’Brien. Mr O’Brien stated that he then became responsible for managing the Union attendance on site on that day.
On 22 August 2019, as SWC did not know which point of access the Union Officials would enter the site, Mr O’Brien waited at the Tynedale access point which was one of the two agreed entry points for the project. Mr O’Brien deposed that he was expecting Mr Fitzpatrick and Mr Rielly to attend Tynedale, sign on to the visitor register and then enter the site. Mr O’Brien stated that sometime between 11:30AM and midday, he received a call from Mr Lawson, who told him that Union Officials had come on site and were at bridge A22. Mr Lawson asked Mr O’Brien to attend.
When he got to bridge A22, Mr O’Brien saw a group of people next door concrete agitator truck between the on-ramp and the bridge end. Mr O’Brien states that he approached the group and heard Nick Williams, the General Superintendent at Pacific Complete, and Mr Rielly talking with each other. Mr Rielly spoke to Mr Williams about safety concerns and methods to resolve those concerns. Mr O’Brien stated he then had the following conversation with Mr Reilly:
I said: What’s wrong
Mr Rielly said: Water for the boys.
I said: There is water in the truck.
Mr Rielly said: What about the toilets. I need the toilets next to the boys.
I said: The toilets are just over the hill there. There are cars so the boys can use them. But that’s no problem we can just pick up the toilets and bring them over here.
Mr Rielly said: You need an eyewash.
I said: It’s in the truck.
Mr Rielly said: What about that unprotected live edge. That agi [agitator or concrete truck] could just roll over.
I said: We have a Spotter in place for that in a pink vest, as per our Seymour Whyte SMS and our Task card. We are following procedures put in place.
Mr Rielly said: What about shade for the guys?
I said: It’s still winter, we’re just coming into the warmer weather. The boys are happy to go to the shed for smoko. I don’t think there is imminent danger because of the cold weather.
Mr Rielly said: Oh Ok. That fence is not suitable for fall protection.
I said: It’s not a work area, as such. It’s an emu fence. Is there anything dangerous here or something presenting imminent danger?
Mr Rielly said: It’s dangerous. [Rielly was pointing at the live edge, near where the energy truck was stationary].
I said: We have procedures in place, it’s on our SWC SMS and on our task card. We realise there is a risk, but we have controls. Is the agi moving?
Mr Rielly said: No. The spotter wasn’t looking.
I said: Good that means it’s working. The agi doesn’t move when the Spotter is not directing him. We have procedures in place, we realise the risk here, but we have controls in place and are okay with that.
Mr O’Brien deposed that Mr Rielly and Mr Fitzpatrick refused to move from behind the agitator concrete truck and the pour could not be concluded. A concrete truck was sent away and its load disposed of.
In cross examination, Mr O’Brien outlined his qualifications in safety matters, including a Diploma of Occupational Health & Safety. Mr O’Brien stated that he was aware of the Union’s right of entry to hold discussions with employees and where they had suspicions involving Occupational Health & Safety issues, including “imminent danger” matters. Mr O’Brien conceded that the employer’s responsibility was to take reasonable steps to resolve issues raised by the Union.
In relation to issues involving the Spotter, Mr O’Brien stated that Mr Rielly raised a complaint that there was no Spotter in place facing the truck. Mr Rielly wanted the Spotter to stop screeding the concrete that had just been poured. A further complaint was that the concrete truck could reverse over the live edge of the road.
In answer to a question as to his knowledge of the term ‘imminent danger’, Mr O’Brien replied that it was something he needed to fix straight away. Mr O’Brien denied that there was no proper exclusion zone in place given they were on a site that was adjacent to a bridge. The only possible danger was from passing traffic. Mr O’Brien stated he did what was necessary, including bringing the toilet closer to the work site as requested by Mr Rielly. Mr O’Brien remembered Mr Lawson saying there were no serious safety issues.
Mr O’Brien later participated in a conversation with the Officials at a conference room at the main site office.
Shane Stegar worked as a Supervisor of Rigid Pavements employed by SWC on the project, including supervising employees of four different sub-contractors. Mr Stegar went to the site of the A22 Bridge to replace a rubber wheeled excavator driver who had a medical appointment.
Upon arrival, Mr Stegar saw two men wearing hard hats with CFMMEU markings on their helmets. Mr Morison was asking the men to move out of the way so a concrete truck could reverse down some steel ramps to continue the pour. Mr Stegar heard Mr Morison say “Can you please move, the concrete’s getting old. We’ve gotta get it in”.
The men were standing in the exclusion zone behind the concrete truck. Following a discussion with Mr Fleetwood, it was decided that they would stop the pour and form a stop end to allow the concrete that had been poured and formed to set properly.
Mr Stegar saw the Union Officials leave by walking back over bridge A22 and over the south bound active haul road. In Mr Stegar’s opinion this was an unsafe practice.
In cross examination, Mr Stegar could remember Mr Rielly asking if the Spotter could get out of the pour. Mr Stegar stated the exclusion zone was delineated by flags, crowd control barriers and a concrete barrier.
Nicholas Williams (“Mr Williams”) was employed by Pacific Complete as a General Superintendent. At approximately 12:15pm on 22 August 2019, Mr Williams deposed that he was driving through the work site at bridge A22 when he saw two people talking with James Fleetwood and Shane Stegar. Mr Williams recognised one of the men as a Union Official, Mr Dean Rielly, and another who he now knows to be Mr Paul Fitzpatrick.
At approximately 12:20pm, Mr Williams approached the two Union Officials. Mr Williams asked “What are you doing on site? You have no right to be here. You haven’t put your right of entry in.”
At around the same time, Mr Lawson approached the two Officials and said “You have no right to be here. What are you doing here” Mr Rielly replied “This site is an unsafe work area with major issues around delineation, lack of water, first-aid facilities, toilet facilities and storage of chemicals or fuel”. Mr Williams responded “You need to leave the site you don’t have a right to be here”.
Mr William stated that in front of the Union Officials, Mr Lawson said: “Nick since you’re a rep of Pacific Complete can you call the Police and the Australian Building and Construction Commission to have these guys removed from site?”
Mr Williams stated that he gestured for Mr Lawson to move away from the Union Officials where he said to him privately “I don’t have that authority. Michelle Salisbury and Pricey will be here shortly and will make a decision on whether these guys have a legal reason to be on site.”
While the Union Officials were on site, Mr Lawson sent a concrete agitator loaded with concrete away from the site as it was passed its time limit. Approximately 30 minutes later, Mr Price and Ms Salisbury arrived on site, at which point, Mr Williams handed the Safety Concerns Notice to Mr Price and he left the site to continue his duties.
During cross examination, Mr Williams conceded that he did not know whether or not the Union Officials were entitled to enter or not. Mr Williams denied that he was told to get the Union Officials off-site by others stating that he made this decision independently. Mr Williams denied that Union Officials had Occupational Health & Safety issues and denied that he had no right to tell them to leave the site. Mr Williams stated that he did not believe that the Union Officials entered under the Workplace Health and Safety Act 2011 (NSW) and believed that they needed to approach management in the first instance. Mr Williams agreed that he was showed permits but stated he did not have time to look at them. Mr Williams denied hearing any discussion with Mr Lawson regarding the Spotter and could not recall speaking to Michelle Salisbury prior to her arriving on-site.
Ms Ella Russell (now known as Ella Cross) (“Ms Cross”) deposed that she was employed as a Senior Human Resources/Industrial Relations adviser for WSP Australia Pty Ltd and was seconded to Pacific Complete to support employees working on the Woolgoolga to Ballina highway upgrade.
On 22 August 2019, at approximately 12:16pm Ms Cross became aware that two Union Officials were on site at bridge A22. She and Michelle Salisbury were asked to go down to the site. Ms Cross was picked up by Mr Williams and drove to the site. During the trip, Mr Williams called Mr Price on the speaker phone and said, “They are going to stop work”. In response, Mr Price said, “If there is no imminent risk to worker safety then work should continue as scheduled”. Mr Williams said, “The Union Officials will not sign in to site on the safety work method statement and they are disrupting our pour. SWC would like Pacific Complete to call the police”. Mr Price told Mr Williams, “Continue to hold the lines as we are three quarters of the way there”.
During the car trip, Ms Salisbury called Murray Curnow-Rose, the Pacific Complete Head of Human Capital on speakerphone. Ms Cross heard Ms Salisbury say “I wanted to let you know that two Union Officials are on site. Apparently they have given us a 117 notice but no employees are in danger.” Ms Cross heard Mr Curnow-Rose reply to Ms Salisbury “Go on site and ask the Union Officials to leave. Tell them we are happy to facilitate a conversation back of the compound regarding their concerns as from our perspective no one is in imminent danger.”
When they arrived on site a discussion took place between Ms Salisbury, Mr Williams and Mr Lawson. Ms Cross and Ms Salisbury then approached the Union Official, now known as Paul Fitzpatrick, and had a conversation to the following effect;
Ms Salisbury: Why are you guys on the site? I’ve had a bit of a chat with Seymour Whyte and Pacific Complete Safety and Seymour White have determined that there was no imminent risk to employee safety based on your concerns. We are happy to work with you guys if you come back to the main compound and follow Pacific Complete’s well documented sign in protocol process.
Mr Fitzpatrick: I want to see things fixed. You know what we think about your process and when it is a safety issue it is different.
Ms Salisbury: Well do you see any imminent risks to workers on site?
Mr Fitzpatrick: Yes definitely.
Ms Salisbury: Can you go back to the compound to discuss the issues?
Mr Fitzpatrick: We respectfully decline.
Ms Salisbury: Are you refusing to go back to the compound?
Mr Fitzpatrick: I am respectfully refusing to go back.
Ms Salisbury: Okay, so then please leave the site.
At this point, Mr Rielly joined the conversation and said, “You can’t ask us to leave”. At approximately 12:57pm, Mr Price joined the conversation and Ms Cross heard him say “We want to work this out with you and talk through what the concerns are but no one is in danger.” Ms Salisbury said “Do you perceive anyone to be in imminent risk of danger?” Mr Rielly replied “Yes, I have a number of concerns relating to the eye wash station, exclusion zones, toilet, water, shade and first-aid”. Ms Salisbury said “I am happy to go through your concerns but as no one is in imminent risk. If you would like to discuss this back of the compound where we can work through a solution”.
At approximately 1:00pm, Ms Salisbury said to Ms Cross, “Can you please check the Union Official’s (Mr Fitzpatrick’s) permit”. Ms Salisbury asked to see the permit which appeared to be both a WHS and Fair Work permits which appeared to be valid. Ms Salisbury then spoke to Mr Rielly and Mr Fitzpatrick again and said:
Ms Salisbury: I’m asking you both to respectfully leave the site, we are not facilitating a right of entry.
Mr Rielly: Our concerns need to be fixed before we leave.
Mr Price: What concerns do you want fixed?
Ms Salisbury: I’m going to ask you again to leave – we can discuss this back at the compound but I’m going to ask you to leave. If you do not leave I will be calling the Police.
Mr Rielly: I want the concerns fixed before I leave.
Mr Price: Okay, I will action your concerns about water and eye wash but let’s discuss the rest back at the compound.
At about 1:09pm Mr Rielly and Mr Fitzpatrick agreed to attend the compound for further discussions. Both Mr Rielly and Mr Fitzpatrick returned to their vehicles that were parked at the bottom of the bridge. To access their vehicles, both Officials walked down a scour or steep embankment from the bridge to the road below and under the bridge.
At the Tynedale compound a further discussion took place regarding the safety concerns raised by the Officials. No follow up action was received by Ms Cross or anyone else to her knowledge in relation to any of the matters raised by the Officials in the meeting in relation to the work site.
Annexed to Ms Cross’ statement is a Work Health and Safety Notice issued by the Officials to SWC dated 22 August 2019. It raises the following issues: access/regress, amenities/water, containers/cages, high risk construction SWMS, HR/HSC representation, risk management, traffic management, WHS duties, no toilets or water for workers, chemical storage, fuel storage, first aid and emergency response.
Also annexed to Ms Cross’ statement is a photograph showing two vehicles parked at the bottom of the steep embankment running down from the worksite to a road that runs under bridge A22.
In cross-examination, Ms Cross denied that a draft statement had been provided to her by Ms Salisbury and that she copied her statement from that statement.
Ms Cross denied that she knew there was no right to ask the Officials to leave. Ms Cross stated it was not explained to her what the term ‘imminent danger’ meant. However, the Officials were obstructing work at the site.
The next witness called by the ABCC was Michele Salisbury. Ms Salisbury affirmed two Affidavits dated 22 February 2021 and 9 April 2021. Ms Salisbury is currently employed as the People Head for Lang O’Rourke has been in that role since 11 December 2017.
From September 2018, Ms Salisbury commenced looking after industrial relations at the Woolgoolga to Ballina Highway upgrade project. On 19 August 2019, Ms Salisbury received an email from a person at the Union attaching right of entry notices for Dean Rielly and Paul Fitzpatrick. On the same day Ms Salisbury responded outlining the processes to be followed when entering the site. This email is set out as an attachment to Ms Salisbury’s Affidavit of 9 April 2021. That email set out site entry procedures including that the Union delegates would be met at the main site compound and then escorted to designated meeting places. Following any meetings, the Union representatives would be escorted back to the main site compound to finalise site exit procedures.
Ms Salisbury deposed that at approximately 12:16 pm, she was advised via telephone by Stephen O’Brien that, ‘Two Union Officials were on-site at bridge 22 and they holding up a concrete pour’. In a conversation, with Ian Chaffey, regarding what was going to be done, Ms Salisbury said to him, “Pacific Complete has a process to follow and we would have to speak with the Union Officials and understand their concerns and reason for entry before we could assess whether there was a valid reason to call the police”. Ms Salisbury then travelled to the bridge site.
At the bridge site the following conversation took place with the Union Officials:
Ms Salisbury: I see you’ve raised some safety concerns in the s117 Entry Notice. We have reviewed the concerns and there are no workers in imminent danger. We are happy to work with you if you can come back to the main compound and follow Pacific Complete’s well documented signing procedures.
Mr Fitzpatrick: you know what we think about your processes when it comes to safety.
Ms Salisbury: would you guys please come back to the main compound and we can discuss your concerns.
One of the Union Officials: No we’re not going anywhere until the issues are addressed.
Mr Price said: can you please explain and elaborate on the issues you have with the site
Mr Reilly said: the site has insufficient water, eye wash station, toilet issues, exclusion zone, and the location of the spotter.
Mr Price said: None of the workers are in imminent danger. I am supportive of addressing the concerns if you both come back to the compound, where we can discuss this properly.
One of the Union Officials said: We believe there is an imminent safety risk and will not be going to your office with you to speak through these concerns. We know that work will commence again the minute we leave, so we are not leaving the site until the concerns are resolved.
Ms Salisbury: You have not followed Pacific Complete’s signing protocol we are happy to work with you if you come to the office and sign in. We have now asked you to leave three times and will be calling the police if you do not leave the site.
Following a conversation with other Managers, at approximately 1:10PM, Mr Rielly said, “We will meet you back at the compound”. They then started walking off towards their cars. At the main compound, the meeting took place between the Union Officials and Management for the project. Concerns were raised that the Officials were able to walk right in to the exclusion zone, the edge of the concrete was about 500mm high and if there was a concrete truck reversing along it, the Spotter was not going to be able to stop it, that the rock fall protection was unacceptable and that workers were using orange containers which should not be used for fuel, fuel spilling everywhere and they didn’t have a hose or bunding around anything.
Mr Price described the concerns as not being an “imminent risk”. Mr Rielly replied that, “The agi situation and the spotter were imminent risks. Our point of view is that it needed to be fixed before work continued”. Discussion then took place as to each of the issues raised by the Union Officials. Mr Price said that none of the issues were of imminent risk, to which, the Union Officials disagreed.
In cross-examination, Ms Salisbury stated that she created some notes which were then used to draft a witness statement. The notes were saved to a folder to which Ms Cross had access.
The final witness on behalf of the ABCC was Mr Aaron Lawson (“Mr Lawson”). Mr Lawson was employed by Seymour White Construction as a Civil Superintendent. Mr Lawson’s duties, amongst other things, was to manage Union attendance at the Pacific Complete worksite. On the morning of 22 August 2019, Mr Lawson was conducting a site drive through during which he received a phone call from Shane Steger advising him that two Union Officials were on-site and had stopped a concrete pour at bridge A22. Mr Lawson was asked to attend the site. Mr Lawson stated that he called Mr O’Brien and asked if the Union Officials had signed onto a visitor register and attended during designated break times. Mr O’Brien stated, “No”. On arrival, Mr Lawson noticed a blue Ute which he knew to be Mr Rielly’s vehicle, parked under the A22 Bridge on Somervale Road. Mr Lawson recognised both Mr Rielly and Mr Fitzpatrick from earlier dealings with them.
Mr Rielly raised a number of safety issues with Mr Lawson, which included chemical storage, insufficient water for the men, an eye wash station, fencing, fire extinguishers on-site, unsafe concrete edges where agitator concrete trucks reverse, no toilets available and exclusion zones around the area. Each of these concerns was addressed by one of the other management people in attendance from the Contractors. In relation to the exclusion zone, Mr Rielly stated that the area was not secure. Nothing could stop Mr Rielly from walking into the exclusion zone. Mr Lawson said, “To reach the exclusion zones, you had to walk up the scour rocks. People don’t normally climb up scour rocks to enter the area. If you had come to see us, signed in and had the induction, we would have taken you there and you wouldn’t have had to climb up the rocks to get here”.
In relation to the live edge, Mr Rielly stated, “The edge is dangerous and the truck could fall and rollover”. Mr Lawson said, “This issue is covered in our safe work methods statements. The company has strict safety policies that prevent incidents occurring when agi trucks are operating”. At one point, Gareth Myerson offered to show the Union Officials the relevant paperwork but Mr Rielly replied, “No”. At approximately 12:15pm, Mr Rielly was standing directly behind the agi truck, between the truck and the pour area where the concrete was being unloaded. The truck had to stop pouring concrete as a result of Mr Rielly standing in that position. A conversation took place between Mr Rielly and Mr Lawson to the effect that he would not move as there were no toilets. Mr Rielly stated, “Fix this issue and I will move. I’ll wait till the police get here.”
At around 12:30pm, Mr Lawson stated that he directed that the concrete that was in the truck that could not be put into the pour site, needed to be disposed of as it had gone over forming time. A stop end was put in place as the workers were unable to finish the concrete pour and could not use the concrete that was in the incoming truck to mix with concrete that was already in the ground.
In cross-examination, Mr Lawson agreed that he had a different view in relation to whether not the safety issues raised by the Union Representatives were serious. While he agreed that some issues had merit, those raised, had controls in place. Mr Lawson agreed that he asked Nick Williams and others to call the Police to the site as he believed the Officials had entered the site unlawfully. In relation to the issue of eye wash, Mr Lawson told the Officials they had eye wash bottles on-site in the first aid kits. It was put to Mr Lawson that Mr Morison never offered to show the Officials the paperwork. Mr Lawson denied that he saw Mr Morison motion to the agitator to reverse back. Mr Lawson agreed with his decision to stop the concrete pour. Mr Lawson agreed that he told the Officials they needed to leave. Mr Lawson agreed that the exclusion zone was controlled by the Spotter but there was no other delineation of the exclusion zone. Mr Lawson agreed that some concrete that was due to be delivered to the site was able to be redirected to other pour sites. When asked what Mr Lawson meant by imminent danger, he said that it meant there had to be no immediate risk to anyone in the worksite.
THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION’S EVIDENCE
Each of the respondent’s initially exercised their right to silence. Following the presentation of the ABCC’s case, the Court was advised that the respondents proposed to call evidence. Affidavits from Mr Reilly and Mr Fitzpatrick were filed in mid-December 2021.
The day before the resumed hearing, on 1 February 2022, an amended Defence was filed on behalf of Mr Rielly and Mr Fitzpatrick. This was followed by an amended Defence on behalf of the CFMMEU. No good reason was advanced as to why the amended Defence was filed the day before the resumed hearing. Had an adjournment been sought by the applicant to consider the amended Defence, the Court would have had no option, as a matter of fairness, but to grant an adjournment. The issue of costs would then have needed to be explored. In this case, the applicant indicated that an adjournment was not required as they were capable of dealing with the issues raised in the amended Defence.
Whilst the respondents are entitled to rely upon their right to silence, this does not mean that they are entitled to act in a cavalier manner in relation to the timing of the filing of consequential documents, such as an amended Defence. The conduct of the respondent may well have met the test of unreasonable conduct, such as to warrant the making of a costs order under s 570 the Act. Legal representatives in such matters should consider themselves on notice that such conduct may well have significant consequences in the future.
The first witness to be called was Mr Dean Lesley Rielly. Mr Rielly affirmed an Affidavit on 13 December 2021. At that time, Mr Rielly was a state organiser with the CFMEU and then the CFMMEU. During the course of his duties, Mr Rielly frequently attended the Pacific Complete road project in northern New South Wales. Mr Rielly claimed that he had repeated difficulties in exercising his right of entry onto the project and was involved in litigation under s 505 of the Act to resolve right of entry issues.
A Notice of Intention to exercise a right of entry was given to the relevant employers for 22 August 2019. Arrangements were made to meet workers at 2:00PM that day.
While driving towards the Tyndale compound to have that meeting at around noon at the A22 bridge site, Mr Rielly stated that he could see what appeared to be a small concrete pour going on. Mr Rielly said that, “He could see an agitator reversing towards a group of workers who appeared to be in the concrete poor area”. Mr Rielly could not see any edge protection and he was concerned about the agitator driving backwards along the alignment towards a group of workers.
Mr Rielly stated that he stopped, then sat in his Ute and began to prepare a s 117 notice, under the Work Health and Safety Act 2011 (NSW). Mr Rielly agrees that he and Mr Fitzpatrick walked up an abutment, or steep slope onto the worksite. As they got to the top, Mr Rielly claims that he saw no signs or barriers between Somerville Road where they parked their cars and the abutment that they walked up. As they arrived at the top of the batter, a concrete agitator was driving off and another agitator appeared to be arriving, reversing to stop next to a concrete testing Ute. Mr Rielly claims that the agitator he saw arriving, is shown in Exhibit 6, a photograph tendered to the Court.
Mr Reilly stated that when he got to the pour area, there was a worker in a pink vest amongst the concrete workers. About five or six other workers were performing work in or around the pour area. Mr Rielly stated the worker wearing the pink vest never come out of the pour area the whole time he was on-site until the pour stopped. Mr Rielly states that his concern was that there was no barrier and no Spotter in place. The concrete workers would have no warning to get out of the way of reversing agitator. Mr Rielly agrees that he was asked to sign a task card but stated that he was not performing any work in the area and did not need to sign a task card.
Mr Rielly claims that he was approached by a man whom he now knows to be Gareth Morison. Mr Rielly was asked why he was there. Mr Rielly responded “Are you the Supervisor”. Mr Morison stated “You can’t be here, you have to leave”. Mr Morison told Mr Rielly that they had a Spotter in the pink vest.
At paragraph 84 of his Affidavit, Mr Rielly claims that he became aware that the agitator that had been up at the testing Ute when they arrived was reversing towards where he was standing. Mr Morison stated, “Can you get out of the way, the concrete is going off”. Mr Rielly claims that he said “Hold on, your Spotter is still in the pour. You have to get your safe systems of work in place. If the agitator stops moving we can sort this out this issue. I’m happy for the pour to continue if we can resolve the issues make a safe place to work”. Mr Rielly goes on to state “I did not move into a position behind the agitator. The agitator reversed onto where I was standing having conversations with Seymour White Management. The worker in the pink vest was still in the pour while this conversation was happening”. Mr Reilly stated that further Seymour White Management arrived at the site and a further conversation took place between he and Seymour White Management.
In terms of claims that he was blocking the agitator reversing, at paragraph 102 of his Affidavit, Mr Rielly claims that he did not say “No, as soon as we move out of the way you will continue the pour”. Mr Rielly claims that he repeatedly made statements to the effect “No there is a serious risk here. You need to get your Spotter out of the pour. I’m more than happy to move forward but let’s get safe systems of work in place”. Mr Rielly states that whilst the agitator driver reversed the agitator towards them, the Spotter was still in the pour. Mr Rielly deposed that a further extended conversation took place with various Seymour White employees. Mr Rielly agrees that he replied to the effect that they were not leaving the site until the safety issues were fixed. Mr Rielly stated that he said to John Price, “You’ve got a problem here and you need to fix it. This is the imminent risk here.” At a later point, Nick Williams returned to the group and made a statement to the effect, “They’re going to stop the pour”. The agitator that had reversed towards Mr Reilly had left by that stage and no more agitators had arrived. Mr Rielly states that he knew he had a meeting with other workers at the Pacific Complete site at 2:00pm.
Mr Rielly agreed that they left the pour site and then had a meeting with various Management Representatives at the Tyndale compound.
In cross examination Mr Rielly stated that they were driving to the Tyndale compound for a meeting at 2:00pm with workers when they drove under the A22 bridge site at about 12:00pm. Mr Rielly agreed that it would have taken about 15-20 minutes to drive from the A22 bridge to the Tyndale compound. Mr Rielly stated that he only stopped at the bridge as he could see safety issues with the pour. These related to edge protection and the agitator. Mr Rielly agreed he walked up a steep slope to access the pour site. Mr Rielly disagreed that this was an unsafe manner to enter the site. Mr Rielly denied that his Affidavit was incorrect in that photographs tendered, showed one jerry can, not more than one jerry can, as indicated at paragraph 50 of his Affidavit.
Mr Rielly was asked extensive questions about where the agitator first stopped. Mr Rielly claimed it was next to the testing Ute and then reversed back to a position shown in various photographs. Mr Rielly denied that the agitator simply turned left from the access road, parked and reversed a short distance back to stop some distance from the pour and the testing van as shown in various photographs. Mr Rielly agreed discussions with various Officials from Seymour White took place with him and Mr Fitzpatrick standing behind the agitator, between it and the pour site. Mr Rielly agreed that he wanted the Spotter to get out of the pour site. Mr Rielly agreed that he deliberately stopped the pour and that is why he said he would be happy if the Spotter got out of the pour area. Mr Rielly denied that he was not allowing the pour to go ahead by remaining between the pour site and the agitator.
The second witness for the respondents was Paul Fitzpatrick, an Organiser for the first respondent. In an Affidavit affirmed 13 December 2021, Mr Fitzpatrick stated that as a result of Mr Rielly seeing something as they drove down Somervale Road, they turned their vehicles around, parked and walked up an abutment from the road onto the pour site on the A22 bridge.
At paragraph 29 of his Affidavit, Mr Fitzpatrick stated that they could see five or six workers in a concrete pour and an agitator waiting. Mr Fitzpatrick claims that apart from the agitator, there were no other vehicles on site. Mr Fitzpatrick stated there were various safety issues including a lack of proper fuel storage, a lack of exclusion zones. Mr Fitzpatrick could not see any fire extinguishers, first-aid or eyewash.
At paragraph 37 of his Affidavit, Mr Fitzpatrick stated that he did not have any conversation as alleged by Paul Jordan. A worker told Mr Fitzpatrick that, “We’ve got a Spotter he’s in the pink vest”. Mr Fitzpatrick states he replied to the effect, “He can’t be a Spotter if he is in the mud”.
After some time, a man who Mr Fitzpatrick now knows to be Gareth Morison, arrived. A conversation took place over the next 20 or 30 minutes. A number of other Seymour White staff arrived and had conversations with Mr Fitzpatrick and Mr Rielly. Mr Fitzpatrick stated that he took a number photographs of the site at paragraph 57 of his Affidavit. Mr Fitzpatrick claims Mr Morison said to him, “You are in an exclusion zone”. Mr Fitzpatrick does not recall being asked to sign a task card. Mr Fitzpatrick recalls a Seymour White Manager making a statement to the effect, “I need you to leave” to which Fitzpatrick responded, “We are here lawfully”.
In paragraph 69 of Mr Fitzpatrick’s Affidavit, he stated that he did not agree to a proposal made by Michelle Salisbury to discuss the issues at the back of the compound, because he wanted to observe whether any steps were being taken onsite to address the safety concerns that had been raised.
After it became clear that the concrete pour had been stopped and a stop end had been put in, Mr Fitzpatrick stated that there was less concern about imminent risk to the workers involved in the concrete pour that day. Mr Fitzpatrick and Mr Rielly agreed to go back to the compound to have a meeting with Pacific Complete Officials.
The Court noted at this point that, Mr Fitzpatrick made no mention in his Affidavit of a concrete agitator reversing at any stage, or indeed of the agitator that was present moving at any stage from the position it is shown in the photographs in evidence.
In cross-examination, Mr Fitzpatrick agreed that when travelling towards the Tyndale compound and that Mr Rielly and him were anticipating arriving for a 2:00pm meeting. Mr Fitzpatrick had no recollection that the reason why they arrived at the A22 bridge site at around 12:00pm was that they were anticipating having lunch at the Tyndale pie shop prior to the meeting.
Mr Fitzpatrick agreed that Mr Rielly was the one that decided to stop and he followed Mr Rielly onto the site. It was put to Mr Fitzpatrick that he saw only saw one jerry can, not several, and he agreed that his statement at paragraph 28 of his Affidavit was an exaggeration. Mr Fitzpatrick agreed that he did not check the jerry can to ascertain if it was full or empty. Mr Fitzpatrick disagreed that the concrete testing van was present when he first arrived. Mr Fitzpatrick agreed that the distance between the beginning of the concrete pour and the agitator shown in the photos was about 25m. Mr Fitzpatrick disagreed that he refused to sign a safety task card. Mr Fitzpatrick disagreed that this was because Mr Rielly refused to sign the safety card and he decided not to sign it as well. Mr Fitzpatrick agreed that he and Mr Rielly did not comply with a request to leave from the area behind the concrete agitator, but denied that repeated requests were made. Mr Fitzpatrick agreed that the agitator was sent away around 12:30pm, and that he and Mr Rielly agreed to leave as the concrete pour had been abandoned.
Mr Fitzpatrick agreed that the s 117 safety notice that was filled in and provided to representatives of the employers, made no mention of a Spotter, and made no mention of the availability of a vehicle on site. Mr Fitzpatrick agreed however, that the notice did refer to the lack of toilets, water, chemical storage fuel storage first-aid issues and emergency response. Mr Fitzpatrick claimed that the spotter in the pour was not noticed, until after the notice had been given.
EVIDENCE IN REPLY
Following the close of the respondent’s case, an application was made by the ABCC to call evidence in reply. This application was granted: (see; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) (Pacific Highway Upgrade Case) [2022] FedCFamC2G 62).
In an Affidavit affirmed on 1 February 2022, Paul Jordon, who worked as a form worker at the site stated that the process on 22 August 2019 for all concrete pours was as follows:
a.The agitator would enter the area via the dirt driveway and turn left towards the testing ute. It would not drive all the way to the testing ute. On that day, the agitator trucks were parked near the dirt driveway sometimes just in front of it and sometimes just behind it. After the agitator parked, it would remain stationary while being tested.
b.The person acting as the concrete tester would walk over from the testing ute to conduct the test at the parked/stationary agitator. Any test undertaken on 22 August 2019 were undertaken next to the agitator truck.
c.Once the tests were completed, the drivers would sound their horns or get out of the vehicle to let the spotter know it was time to reverse into the pour area.
d.Once the tests were completed, the agitator would reverse 25 m or so back (with the assistance of a spotter) for merits parked near the dirt driveway into the pour area. A spotter was not utilised initially while the agitator truck was parking and being tested. A spotter only assisted once the test was completed and the agitator was about to reverse into the pour area.
Mr Jordan stated that he had been shown Exhibit 6, which is a photograph he was advised was taken on the morning of 22 August 2019. This photo was before the Union Officials arrived on site. The agitator shown in Exhibit 6 is already in the pour area having reversed, about 25m away from the testing area with the assistance of a Spotter. In terms of the statement by Mr Rielly at paragraph 51 of his Affidavit that “another agitator appeared to be arriving, reversing to stop next to the concrete testing Ute” this is incorrect as the concrete testing did not take place next to the testing Ute. The agitators would not reverse from the testing Ute.
Standard practice while Mr Jordan worked for Pacific Complete was for a sample of concrete from the agitator to be taken from it using hand equipment such as a bucket. The test did not need to be conducted next to the testing vehicle and was not conducted on 22 August 2019 in that way. Annexed to his Affidavit is a photograph taken at approximately 12:12pm showing Union Officials standing in the 25m section between the agitator and the pour. The agitator truck for the midday pour, never moved from that position, it simply drove off once a stop end had been put in place after the pour was cancelled.
At paragraph 84 of Mr Rielly’s Affidavit he stated, “I became aware that the agitator that had been up the testings Ute when we arrived and was reversing towards where I was standing”. This is incorrect, as the agitator truck for the midday pour never reversed from the testing location.
In cross examination, it was put to Mr Jordan that he could not give evidence as to what happened at all times. Mr Jordan replied that he would have heard the trucks reversing. Mr Jordan conceded that he did not necessarily see them coming in. Mr Jordan was not sure if the truck was being tested when the Union Officials arrived. It was put to Mr Jordan that there was a need for a Spotter at any time the trucks were being reversed. Mr Jordan replied that it was when they are in the pour area. Mr Jordan disagreed that the position that the truck was in, was in the pour area. There was no requirement, in Mr Jordan’s view, under the safe work management system for a Spotter, until and unless the concrete truck came into the pour area.
CONSIDERATION
It is appropriate to deal with a number of general considerations first, before going on to consider the liability of Mr Rielly and Mr Fitzpatrick in detail.
Unsurprisingly, there are aspects of the various witnesses’ evidence that vary in terms of detail and recall of times. Memories can and do differ even though witnesses may have been present at the same time. The Court has taken account of this and looked to establish facts based on what it considers to be the best evidence available. Further, the fact that some detail may be incorrect in a witness’s evidence is not, by itself, a reason to reject the whole of that witness’s evidence.
THE PLEADINGS SUBMISSION
Counsel for the first respondent submitted that the applicant had chosen to conduct the matter in a different manner than that which was pleaded. Reliance was placed on Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 at [50] where the following was said:
[T]he respondents were entitled to be told clearly and precisely in the Commissioner’s ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone. Plainly, this latter exception did not permit the Commissioner to make a significant addition to, or departure from, the pleaded case, in counsel’s opening or closing submissions and then seek to justify that course by pointing to the respondents’ failure to object as evidence of their acquiescence in that course. If that were the test, this departure from the basic requirements of procedural fairness would not occur by the deliberate choice of the party entitled to fair notice but rather at the self-serving behest of his or her opponent. If such an approach were permitted, the requirement to give fair notice would be made redundant, trial by ambush would become a legitimate tactic, and the issues in dispute at trial would become a movable feast.
On behalf of the respondents it was submitted that the applicant, on the basis of the pleadings, needed to prove that Mr Fitzpatrick and Mr Rielly in exercising their rights of entry, hindered, or obstructed or otherwise acted in an improper manner. If the applicant was unable to prove any element then the entire case fails. That is, the case was cumulative. In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) [2021] FCA 920 at [126]-[128] the following was said:
In closing submissions, however, Mr White confirmed that the allegation in para 73 was that it was the combination of the several events that constituted the contravention, referring to the subparagraphs as being a “continuum of acts”. That is consistent with the natural reading of para 73. The absence of a conjunction, such as “or” or “and/or”, between subparagraphs or of any introductory phrase in the chapeau to the paragraph to suggest otherwise, indicates that the subparagraphs were intended to be cumulative…
It therefore follows, as the union officials submitted, that to succeed on the obstructing or hindering allegations the Commissioner had to prove each of the elements listed in subparas (a)–(e). Consequently, if any one of the subparagraphs is not proved, then the Commissioner’s case falls over.
In this case however, at paragraphs 28 and 29 of the pleadings, separate contraventions were alleged in respect of Mr Rielly, in respect of intentionally hindering or obstructing (see paragraph 28) and acting in an improper manner (see paragraph 29). The same separate pleading applies to Mr Fitzpatrick (see paragraphs 32 and 33).
Counsel for the applicant confirmed that should the Court find that the respondents intentionally hindered or obstructed, then it would not be necessary for the Court to consider whether or not they otherwise acted in an improper manner. The Court rejects the submission that is necessary for the Court to be satisfied that the respondents both hindered or obstructed or otherwise acted in improper manner. The pleadings are disjunctive and make two separate allegations. The Court is fortified in this view that in each case, the pleadings make reference to separate paragraphs in the pleadings as being supportive of the allegation of intentionally hindering or obstructing as compared to otherwise acting in a proper manner.
The allegations in this case are not cumulative but are separate discrete allegations.
CONTAMINATION OF WITNESSES EVIDENCE
Counsel for Mr Rielly and Mr Fitzpatrick submitted that it was plain that there was coordination of the evidence of witnesses employed by Pacific Complete and Seymour White pointing to the evidence of Ms Russell (who is now known as Ms Cross) who stated in cross examination that “from my memory, we worked together on the witness statement afterwards to ensure that we had a recollection events”. This applies to Ms Salisbury’s evidence.
There was also evidence contained in emails that were provided to the Court that indicated that Mr Murray Rose, who was not called as a witness by the applicant, viewed and possibly edited a document entitled “post right of entry feedback” at the behest of Ms Salisbury. It was also suggested that Ms Salisbury and Ms Cross coordinated the making of witness statements by three of the witnesses called by the applicant, being Mr O’Brien, Mr Lawson and Mr Williams. The Court has considered this submission, and has carefully scrutinised the evidence called on behalf of the applicant, and given the potential for contamination, factored this into the weight to be given to their evidence. The Court is not satisfied that the evidence is wholly unreliable.
TECHNICAL PROBLEMS WITH THE HEARING
Counsel for Mr Rielly and Mr Fitzpatrick complained that there were practical difficulties with the hearing, in that, witnesses gave evidence via video conferencing rather than in person. This was due to pandemic restrictions that impacted on travel. Counsel complained that witnesses, mainly Mr Rielly had difficulties in hearing the questions asked, and Counsel for the applicant had difficulty in hearing the answers given. This difficulty did not appear to affect other witnesses.
The Court over the last 2 years has gained considerable experience in the use of video conferencing facilities. Overall the experience has been positive in that, it has not impacted on the capacity of the Court to consider the reliability of witness’s evidence including issues relating to credibility. In considering the evidence of all the witnesses in this matter, the Court is conscious not to readily draw adverse conclusions, based on attempts of witnesses to answer questions fully, in circumstances where their evidence was given remotely and the impact that this may have had on their evidence.
THE JONES AND DUNKEL ISSUE
Counsel for the respondents submitted that there were a number of curious absences from the applicant’s witnesses. These included Mr Price, a Supervisor who apparently had a telephone conversation with some of the other witnesses as they were driving to the A22 bridge site. While the conversation was given in evidence by other witnesses, Mr Price was not called. It was submitted that the agitator driver, who was unknown to the respondents, should have been called as a witness. Further, Mr Padriag Smith, who was the wearer of the pink Spotters vest at the site during the relevant time, and Mr Murray Rose, were not called as witnesses, despite their presence at the site or the role in the events. Reliance was paced on Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 740 at [25] per Moore J:
if a party did not call a witness with knowledge of the relevant facts, that the party might be expected to call, the inference could be drawn that the witness’ evidence would not assist that party’s case. As Menzies J said at 312:
i.the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence;
ii.that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give that evidence;
iii.that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstances that the defendant disputing it might have proved to the contrary had he chosen to give evidence is properly taken into account as a circumstance in favour of drawing the inference.
It was submitted that the absence of Mr Price was particularly significant. As they drove to the A22 site, Mr Price told Mr Williams who was on the site, “If there is no imminent risk to worker safety then work should continue as scheduled.” It was submitted that Ms Salisbury told Ms Russell, Mr Price and Mr Scott, “Our plan is to get the Union Officials off-site and hold discussions back of the compound as no one is in imminent danger”.
It was submitted that Padraig Smith, was a crucial witness as he was the person who might have been called upon to do the spotting duties. Despite that, Padraig Smith was never called upon to be a witness.
In relation to Mr Rose, he was also potentially an important witness. It was submitted that he apparently gave instructions as to how to deal with the Union Officials.
The concrete truck/agitator driver might have been the most crucial witness, as he could have given evidence as to when he turned up, what he did when he was there and when he left. It was submitted that he might have been able to give evidence as to the role and position of the Union Officials, but was not called
It was submitted that the Court was entitled to make a Jones v Dunkel (1959) 101 CLR 298 inference that the evidence of those witnesses would not help the applicant. The Court was also further entitled to make a second form of Jones v Dunkel inference, as expressed in Manly Council v Byrne and Anor [2004] NSWCA 123 at [51] being that the tribunal of fact might draw with greater confidence any inference unfavourable to the party that failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should be properly drawn.
Counsel for the applicant responded that the Court would be unsure what inferences should be drawn from the witnesses that had not been called. It was submitted that, the matter does not rise or fall on these witnesses evidence.
In coming to the conclusions of fact that it has, the Court has considered this submission. The Court is of the view that there is no requirement on the applicant to call every witness who might potentially be able to give evidence. If the matter is capable of being proven on the direct evidence of the witnesses called, the Court is entitled to find for the applicant, notwithstanding that there may be other witnesses who might potentially have been called who were not.
The Court has appropriately cautioned itself in the terms of the drawing of appropriate inferences as set out above in Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 740.
The Court has also been mindful of the observations of Katzmann J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) [2021] FCA 920 at [27] where the following was said:
While there was a good deal of common ground, there were also significant differences between the parties witnesses about crucial events. But there were also differences in the accounts given by the witnesses on each side of the controversy. Since the onus of proof lay with the Commissioner, the difference in accounts of his witnesses was the focus of particular attention.
Likewise, the Court in this matter has been mindful of the differences between the various witnesses, particularly, those called by the applicant. In so doing, the Court has been cognisant of the need for the applicant to prove each and every element of the contravention to the requisite Briginshaw v Briginshaw [1938] 60 CLR 336 standard.
LIABILITY OF MR RIELLY AND MR FITZPATRICK
Consideration of liability in relation to Mr Rielly and Mr Fitzpartick (the Union Officials), can be conveniently dealt with together.
The Court accepts that the following factual matters are correct, are uncontroversial and/or are common ground between the parties:
a.On 22 August 2019, a crew of KFC workers were pouring concrete at the A22 bridge site. The crews were using concrete from concrete agitator trucks.
b.At approximately 12:04PM, the Union Officials parked their cars under the A22 Bridge and climbed an embankment of scour rocks as depicted in Exhibit 22 and Exhibit 19. The Union Officials entered the site without following the protocol for entry onto site, as communicated to them by Pacific Complete in Exhibit 17. In so doing, the Union Officials exercised their rights under the Work, Health and Safety Act 2011 (NSW) (WHS Act).
c.Prior to entering the site, Mr Rielly commenced filling out a notice of entry form pursuant to s 119 of the WHS Act.
d.On the way up the embankment, the Union Officials spotted a red plastic container they described as a jerry can used for fuel. It had a lid on it. They assumed the container had fuel in it and were concerned about a lack of bunding. The container was not inspected to ascertain if it was full or empty.
e.Shortly after 12:04PM, after climbing the embankment, the Union Officials approached KFC employees working on the project site and spoke with Paul Jordon.
f.Shortly thereafter, James Fleetwood and Gareth Morrison arrived.
g.The Union Officials proceeded to position themselves in between the rear of the agitator and the site of the concrete pour. At this time, Mr Rielly claims the concrete truck was some distance away being tested and subsequently reversed back towards him.
h.The Union Officials did not move from that position. Mr Fitzpatrick confirmed they did not move away from that position until he commenced taking photographs at around 12:30PM.
i.While standing in the area between the rear of the truck on the site of the concrete pour, Mr Lawson and Mr Williams arrived. Discussions took place as to various safety concerns raised by the Union Officials.
j.Mr Reilly completed the WHS Act notice he had commenced filling out in his vehicle prior to entering the site and after it was signed by Mr Fitzpatrick it was handed to Mr Williams.
k.The pour was abandoned at about 12:30PM. The Court is satisfied on the totality of the evidence that the pour was abandoned as the concrete in the agitator that was parked was no longer useable. That concrete was subsequently dumped as not useable. This amounted to six cubic metres of concrete
l.At approximately 1:10PM the Union Officials left the pour site and proceeded to the Tyndale compound where further discussions regards safety concerns took place between the Union Officials and various employer representatives.
m.There is no evidence before the Court as to further follow up by Mr Rielly or Mr Fitzpatrick following the meeting at the Tynedale compound as regards the safety concerns they raised regarding the A22 worksite.
n.It is common ground between the parties that the incident involved only one agitator/concrete truck and that there were not two concrete trucks at the pour site during the relevant time period.
The Court is satisfied that the Union Officials were permit holders and exercised a valid right of entry to the A22 worksite pursuant to the WHS Act. The question for determination is whether in doing so the Union Officials first intentionally hindered or obstructed another person or secondly otherwise acted in an improper manner in contravention of s 500 of the Act.
Section 118 of the WHS Act sets out the rights of a permit holder who enters a workplace pursuant to s 117 of the WHS Act. They are as follows:
(1) While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act —
(a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention,
(b) consult with the relevant workers in relation to the suspected contravention,
(c) consult with the relevant person conducting a business or undertaking about the suspected contravention,
(d) require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that—
(i) is kept at the workplace, or
(ii)is accessible from a computer that is kept at the workplace,
(e) warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk.
It is to be emphasised that the right extends as to warning a person who may be exposed to an imminent risk.
Given these are civil penalty proceedings the Court, as set out above must apply the relevant evidentiary principles as set out in Briginshaw v Briginshaw [1938] 60 CLR 336 at [362], with the onus of proof lying on the ABCC.
Further, the intention to hinder must be proven. This has been interpreted that the offender meant to produce the particular result: (see; Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64 at [68]).
On behalf of the respondents it was submitted that all they intended to do was ensure that the workplace was safe. It was submitted that they did not intend to obstruct or hinder. They only sought that Seymour White perform its ordinary duties to ensure the safety of the site: (see; ABCC v CFMMEU (Kiama Aged Care Centre Case) [2021] FCA 920 at [168]). It was further submitted that there was no pleading that the Union Officials acted in an improper manner, other than the alleged failure to sign the task card. It was submitted that this was not a requirement of the site and was therefore not reasonable. There was no requirement that visitors must conduct a task review before each task.
With these matters in mind it is appropriate to turn to the evidence and the various versions of events put forward by the parties.
Mr Rielly and Mr Fitzpatrick gave differing evidence as to the reason why they were at the A22 site at approximately 12:00PM on 22 August 2019. They had booked to attend the Tyndale compound at 2:00PM. That is uncontested. Why they would have driven by the worksite so early, is puzzling. Mr Rielly gave evidence that he planned to have lunch with Mr Fitzpatrick at a pie shop prior to the 2:00PM meeting at Trynedale. Mr Fitzpatrick was unable to recall that reason. Evidence was that the Tyndale site was some 15 to 20 minutes away from the A22 site. The fact that Mr Fitzpatrick and Mr Rielly arrived at the site while a pour was being undertaken and observed, while driving from a considerable distance, safety concerns such that they felt the need to immediately stop and enter the site, may be viewed as rather convenient. It raises some credibility concerns with their evidence but it is not conclusive of itself.
Evidence was given, over objection of ongoing disputes between the Union Officials and Seymour White and Pacific Complete regarding access by then to the project. There is also unchallenged evidence of one of the Officials making derogatory remarks as to Seymour White as an employer. There is clear evidence that Seymour White had views that the Union Officials were trying to enter the site improperly. It is in this already tense atmosphere that the events the subject of the litigation took place.
The Union Officials admitted that they positioned themselves behind the concrete agitator. They claimed that this was in an attempt to force the safety concerns regarding a Spotter being addressed. Mr Jordan stated that he could not signal the agitator to reverse into the pour position as a group of Union Officials and SWC managers were in the way. Further, Mr Jordan stated that he heard the Union Official in the orange shirt state “I do not have to go anywhere”. The Court accepts this evidence.
Mr Rielly claims that he did not know the area where he was standing was an exclusion zone. That claim is difficult to accept. Mr Rielly was standing behind an agitator that was waiting to reverse into a position where it could undertake the pour. That it was a dangerous position to the Court’s mind, is a matter of common sense. That it was an exclusion zone is also a matter of common sense. Further, Mr Rielly was asked by Mr Morison to move. Mr Rielly refused, and also refused to look at documentation, being the task card that he was asked to sign, that would have shown where the exclusion zone was. The Court however, does accept that there was no requirement for the Union Officials to sign the task card, as they were not workers on the site. The Court also notes that the task card is not before the Court in evidence.
The Court accepts Mr Morison’s evidence that Mr Rielly replied when asked to move from behind the agitator as it was an exclusion zone, “No as soon as I move, you’ll continue the pour”. The Court also accepts Mr Lawson’s evidence that he also asked Mr Rielly to move away from behind the truck. The Court accepts Mr Lawson’s recollection of Mr Rielly stating, “There’s no toilets. Fix this issue and I will move”.
Any justification that there being no toilets within a reasonable distance from the pour being a matter of imminent danger, cannot be sustained.
In accepting this evidence, the Court finds as a fact that, it was the intent of both Mr Rielly and Mr Fitzpatrick to stand where they were. In so doing, they obstructed or hindered the concrete pour such that it had to be abandoned.
Mr Rielly claims that the concrete truck/agitator reversed on a number of separate occasions while he was present at the site, without a Spotter, including in a dangerous manner, placing himself and workers in imminent danger. Mr Rielly is alone in that evidence. The Court rejects that evidence. Mr Fitzpatrick gives no such evidence as to the vehicle reversing while they were present. The absence of any support by Mr Fitzpatrick on this issue gives rise to considerable credibility concerns as to the entirety of the evidence of Mr Rielly. The Court, notwithstanding one answer from Mr Morison, is satisfied that the agitator did not move at any time from the position it was photographed in. It did not reverse from the testing Ute.
The Court prefers the evidence of Mr Jordan as to the work method for the site as set out in his second Affidavit and his observations on the day. The Court is satisfied that the concrete truck turned left onto the pavement depicted in the photographs from the access road and then reversed back a short distance well short, about 25 metres of the pour site. Testing of the concrete took place in that position, with the tester coming from the testing vehicle to the truck.
The Court rejects the claim by Mr Rielly that the truck first drove up to the testing ute some distance away as depicted in the photographs and then reversed some considerable distance back to the concrete pour site. The Court also rejects the evidence of Mr Rielly that the truck reversed on any other occasion.
Photograph PJ02 was taken at 12.16 pm. By reference to the particular markings on the road surface, and comparing those markings to all subsequent photographs, clearly indicates that the truck did not move from the position it was in, when photograph PJ02 was taken. It was still in that position when the pour was abandoned.
Mr Fleetwood also specifically denied any complaint by Mr Rielly about the vehicle reversing without a Spotter and nearly running him over.
The Court draws further comfort in this conclusion in that the s 117 WHS Act Notice served on Seymour White, makes no mention of a truck reversing without Spotter or that it nearly ran Mr Rielly over. This would have been such a significant matter that it would reasonably have warranted specific attention in the Notice. Instead, the best that can be said is a box relating to “traffic management” is ticked. The Court does accept however, that there was reference to the reversing in the subsequent meeting notes at the Tyndale compound.
The Court accepts without reservation, the evidence of Mr Jordan, as to the usual work practice for the pour that day, being that, the tester came to the truck and the truck did not reverse into the pour without a Spotter. The Court has noted however, a clear error in Mr Jordan’s evidence as to times. Mr Jordan is one hour later in his recollection than what is the common ground of the time of the events. This error does not affect the reliability of Mr Jordan’s other evidence.
The Court has considered evidence by Mr Morison in cross examination that appears to indicate that the truck reversed back after the concrete had been tested (see Transcript p136.26-30, 44-45 2 Nov 21). The Court considers that evidence to be that, Mr Morison initially accepted that the truck reversed back without a Spotter. However, later on, Mr Morison clearly clarifies that, it did not happen. The Court accepts that, properly understood, the truck was ready to reverse if called to do so but could not due to the Union Officials being behind it.
Mr Fitzpatrick accepts that he did not move from behind the agitator till about 12.30pm, when he commenced taking photographs. It was at this stage that the concrete pour had been abandoned. The Court is satisfied that Mr Fitzpatrick also intended to stand where he did, with the result that the concrete pour was abandoned.
The Court has noted that some possible witnesses were not called by the applicant. The Court is satisfied that it can safely make the factual findings it has, without those witnesses being called.
Accordingly, the Court finds that both Mr Rielly and Mr Fitzpatrick breached
s 500 of the Act, by intentionally hindering or obstructing Mr Jordan and Mr Morrison in conducting the concrete pour.
ACTING IN AN IMPROPER MANNER.
Given that the Court has found liability has been proven in relation to hindering or obstructing it is not necessary to consider the alternative allegation of breaching s 500 of the Act by acting in an improper manner.
LIABILITY OF THE CFMMEU
No formal written submissions on liability were filed with the Court in respect of the CFMMEU. The legal representative for the CFMMEU, in a communication with the Court, stated that liability of his client was purely derivative in that it would rise and fall with the ABCC case against the individual respondents, Mr Rielly and Mr Fitzpatrick. It was confirmed that the CFMMEU adopted the submissions of Counsel for Mr Rielly and Mr Fitzpatrick.
In these circumstances, the Court finds the CFFMEU liable for the breach of s 500 of the Act on the basis of accessorial liability pursuant to s 550 and s 793 of the Act: (see; Construction. Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (the Bruce Highway Caloundra Sunshine Upgrade Case) (2020) 302 IR 106).
DISPOSITION
Having come to the conclusions it has, evidence will now need to be presented to the Court on any penalty payable by the respondents’.
I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 23 May 2022
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