Australian Building and Construction Commissioner v Collier
[2019] FCCA 650
•18 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v COLLIER & ORS | [2019] FCCA 650 |
| Catchwords: INDUSTRIAL LAW – Application made pursuant to ss.499, 500 and 503(1) of the Fair Work Act 2009 (Cth) – whether the first respondent failed to comply with occupational health and safety requirements (“OHS”) – whether the first respondent hindered or obstructed workers from undertaking their work – whether the first respondent’s conduct involved actions which were exercised in an improper manner – whether the first respondent made deliberate or reckless misrepresentations that he was authorised to give directions to workers to stop work – Declaration made that first respondent contravened s.499 of the Fair Work Act 2009 (Cth) – applications seeking that the first respondent contravened ss.500, 503 of the Fair Work Act 2009 (Cth) dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 499, 500, 503, 551 Fair Work (Building Industry) Act 2012 (Cth), ss.4, 5 Evidence Act 1995 (Cth), s.140 Work Health and Safety Act 2011 (NSW), s.19 |
| Cases cited: Australian Building and Construction Commission v Collier & Ors [2017] FCCA 1964 |
| Applicant: | AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
| First Respondent: | LUKE COLLIER |
| Second Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Third Respondent: | CONSTRUCTION, FORESTRY, MINING, AND ENERGY UNION (NSW BRANCH) |
| File Number: | SYG 3426 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 7 June 2018 |
| Date of Last Submission: | 7 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Britt |
| Solicitors for the Applicant: | Bartier Perry |
| Counsel for the First Respondent: | Mr I. Latham |
| Solicitors for the First Respondent: | James Gervase Liddy |
| Solicitors for the Second Respondent: | Ivan Anthony Simic |
| Solicitors for the Third Respondent: | Taylor & Scott Lawyers |
THE COURT DECLARES:
On 5 March 2014 the first respondent contravened s.499 of the Fair Work Act 2009 (Cth).
THE COURT ORDERS:
The application be otherwise dismissed in relation to the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3426 of 2014
| AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
Applicant
And
| LUKE COLLIER |
First Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Second Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH) |
Third Respondent
REASONS FOR JUDGMENT
This is an application made by the Director of the Fair Work Building Industry Inspectorate, now the Australian Building and Construction Commission (“ABCC”) pursuant to the Fair Work Act 2009 (Cth) (“the Act”).
Background
The ABCC seek certain declarations involving the three respondents and consequent orders imposing civil remedy pecuniary penalties on the respondents.
The first respondent in these proceedings is Mr Luke Collier, a union official with the Construction, Forestry, Mining and Energy Union (“the CFMEU”), now the Construction, Forestry, Maritime and Mining Energy Union. The second respondent is the Construction, Forestry, Mining and Energy Union (NSW Branch) (“the CFMEU”). The third respondent is the CFMEU (NSW Branch). [The references to the union in the affidavit evidence set out below continue to be to the “CFMEU”.]
On 18 August 2017 I handed down judgment in relation to an Application in a Case filed by ABCC, in effect, seeking to reopen its case. That judgment is Australian Building and Construction Commission v Collier & Ors [2017] FCCA 1964. I made the following order:
“(1) Leave is granted to the applicant to re-open its case and adduce further evidence relevant to the issue of whether Mr Hackett is a “fully inducted project representative” as that term is used in the Visitor’s Induction document (AE3).”
The Statement of Claim
The Statement of Claim (“SOC”) filed in these proceedings is detailed. However the following assertions provide context, and background, for what follows.
Lend Lease Engineering Pty Ltd (“Lend Lease”) was the head contractor on a construction site at Hickson Road, Barangaroo, New South Wales (“the site”) on 5 March 2014.
The SOC asserts that on 5 March 2014 at about 8am to 9am Mr Collier entered the site, for work, health, and safety purposes (“OHS”). The particulars at [7] of the SOC are in the following terms:
“7. The purpose of the First Respondent’s entry on 5 March 2014 was for work health and safety purposes:
Particulars
The First Respondent:
(a)entered the Site;
(b)requested the production of documents relating to an alleged safety concern;
(c)asserted that he would undertake a “safety walk” and walked to an area where steelfixers and formworkers were performing work;
(d)presented his NSW WHS permit;
(e)identified and referred to alleged safety issues;
(f)directed workers to stop work and attend a meeting in relation to alleged safety concerns; and
(g)told Police that they were at the Site for safety reasons.
See the Statement of Ross Barker dated 11 March 2014, in particular, paragraphs 24, 25 and 37; see also the statement of Matthew Clothier dated 11 March 2014, in particular, paragraphs 26, 31, 33, 32, 34, 35, 37, 38, 41 and 53; see also the statement of Kieron Little dated 10 March 2014, in particular, paragraphs 42 and 64; see also the statement of Barry Murphy dated 11 March 2014, in particular, paragraph 71.”
The SOC alleges the following contraventions of the Act.
First, s.499 of the Act. The allegation is that Mr Collier failed to comply with OHS requirements. That section was at the relevant times in the following terms:
Section 499 Occupational health and safety requirements
A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.
Note 1: This section is a civil remedy provision (see Part 4-1).
Note 2: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).
The SOC alleges that on 5 March 2014, Mr Collier entered the site in an exercise of a right to do so under the Act, and relevant New South Wales legislation (Work Health and Safety Act 2011 (NSW) (“the WHS Act”)).
Mr Collier signed the “sign-on” book, acknowledging that he had read, and would comply with, the safety requirements set out in the Lend Lease visitor induction. These requirements were reasonable.
The SOC asserts that it is an occupational health and safety requirement that visitors to the site remain accompanied by a “project representative (see further below) of Lend Lease who has undertaken a “full site induction”. Conversely visitors are not to enter and remain on the site unaccompanied by such a representative.
The allegation in the SOC is that Mr Collier proceeded to walk onto, and around, the site unaccompanied by a “project representative” of Lend Lease. He was requested by a project representative of Lend Lease not to walk on the site so unaccompanied.
It is alleged that Mr Collier did not comply with this request. In all of the circumstances, therefore Mr Collier contravened s.499 of the Act.
Second, s.500 of the Act. That section was at the relevant times in the following terms:
Permit holder must not hinder or obstruct
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.
Note 1: This section is a civil remedy provision (see Part 4-1).
Note 2: A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.
Note 3: A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).
The allegation is that while he was on the site, Mr Collier spoke to workers from Wexdek Pty Ltd trading as BKH Formwork (“BKH”). BKH was employed by sub contract to Lend Lease, and these workers were undertaking work on the site.
The allegation is that Mr Collier approached the workers and directed them to stop work. He was not authorised by the Act or the WHS Act to direct such a cessation of work. Nonetheless some of the workers did stop work, and the work was “slowed down”.
The SOC asserts that Mr Collier’s conduct was deliberate, and hindered or obstructed BKH, Lend Lease, and their employees and subcontractors, within the meaning of s.500 of the Act.
Third, also in the context of s.500 of the Act, Mr Collier’s conduct involved actions which were an exercise in an “improper manner”, within the meaning of s.500 of the Act.
Fourth, s.503(1) of the Act. It was at the relevant times in the following terms:
503 Misrepresentations about things authorised by this Part
(1) A person must not take action:
(a) with the intention of giving the impression; or
(b) reckless as to whether the impression is given;
that the doing of a thing is authorised by this Part if it is not so authorised.
Note: This subsection is a civil remedy provision (see Part 4-1).
The SOC asserts that on 5 March 2014, Mr Collier directed workers on the site to stop work, and attend a meeting to discuss alleged safety concerns. The allegation is that Mr Collier “knew” that he was not authorised under the Act, or the WHS Act to direct workers to stop work, or to attend a meeting.
The assertion is that such conduct contravened s.503(1) of the Act in that it was “deliberate”, and done with the intention of giving the impression that he was authorised to give the directions he was said to have given.
The SOC also asserts, that in the alternative, Mr Collier was “reckless” as to whether he gave the impression that he was authorised to direct workers to stop work when he was not. This also is said to be a contravention of s.503(1) of the Act.
The Current Focus
As set out above, there are three respondents in this case. However, it was agreed that the immediate focus was on the alleged conduct of Mr Collier. If, or when, it is necessary, the allegations against the second and third respondents, will be the subject of a separate consideration.
Evidence
There have been a number of directions hearings in this matter, which have involved the filing of a number of affidavits and issuing of subpoenae.
Of the affidavits filed in this matter, the following are relevant to the immediate consideration concerning Mr Collier: [All, except Mr Maher, were the subject of cross-examination].
1 Mr Ross Barker, Safety Manager, made on 15 July 2015.
2 Mr Kieron Little, Construction Manager, made on 17 July 2015.
3 Mr Matthew Clothier, General Superintendent, (x2 affidavits) made on 17 July 2015 and 24 January 2018.
4 Mr Barry Finbarr Murphy, Project Director, (x2 affidavits) made on 21 July 2015 and 6 February 2018.
5 Mr Dermot O’Sullivan, General Manager, made on 15 July 2015.
6 Mr Mark Lanigan-O’Keeffe, 17 July 2015.
7 Mr Matthew Barr, Assistant Director & Fair Work Building Industry Inspector, made on 14 July 2015.
8 Mr Dean Hackett, Health and Safety Representative of Lend Lease Engineering Pty Ltd, made on 21 March 2017.
9 Mr Luke Collier, Organiser employed by the Construction, Forestry, Energy and Mining Union (NSW Branch), made on 21 March 2017.
10 Mr Kevin Joseph Maher, Industrial Relations Manager, made on 15 July 2015.
[Schedule 1 to this judgment sets out the objections to the admissibility of certain evidence and the disposition of the objections.]
Matters Not in Dispute
The following matters are not in apparent dispute between the parties (as they relate to the events of 5 March 2014):
1 Lend Lease was a Corporation within the meaning of s.12 of the Act and s.4 of the Fair Work (Building Industry) Act 2012 (Cth) (“FWBI Act”).
2 Lend Lease was undertaking a building project at the site: the Barangaroo Headland Park Project (“the Project”).
3 The Project is building work within the meaning of s.5 of the FWBI Act.
4 Lend Lease was a building employer within the meaning of s.4 of the FWBI Act.
5 At around 8am to 9am on 5 March 2014, Mr Collier entered onto the site.
6 This entry was for OHS purposes only, pursuant to a right of entry under Part 3-4 of the Act.
7 I note that the head contractor on the site was initially Baulderstone Proprietary Limited (“Baulderstone”). This entity was taken over by Lend Lease (see affidavit of Mr Hackett at [3] and evidence given by Mr Little before the Court). References in the evidence to Baulderstone for current purposes are to be read as references to Lend Lease.
Preliminary Notes
A number of matters require preliminary note.
First, the parties’ respective submissions reveal a number of key areas of dispute about what relevantly occurred on 5 March 2014. These are addressed below.
Second, however, as is clear from what follows, the matter of the credit of all the witnesses’ evidence, or more precisely, whose evidence is to be preferred, is central to the disposition of this matter.
Third, I note, so as to avoid doubt, that such “preference” does not necessarily involve a general finding that all of the evidence of one witness is to be preferred over all of the evidence of another, as appeared to be suggested in submissions.
Fourth, further, as is clear from what follows, there are important differences between the parties as to what occurred, or did not occur, as at the different stages of Mr Collier’s progression around the site on 5 March 2014. I have approached the matter of whose, or which, evidence is to be preferred, with reference to each of the claimed “incidents”, rather than a “blanket” preference of one witnesses’ evidence over another.
Fifth, in his submissions of 4 June 2018 (at [21] – [25]), Mr Collier takes issue with what he says, in essence, was ABCC’s attempt in its submissions to “re-cast its case”, and that the Court should not permit ABCC to do so.
I agree with ABCC’s subsequent submissions that this question was considered, and determined, by the Court in Australian Building and Construction Commission v Collier & Ors [2017] FCCA 1964. At [2] of its submissions of 7 June 2018 ABCC states:
“2. In respect to paragraphs 21-25 the First Respondent is seeking to re-run its earlier submission that was considered by the Court in Australian Building and Construction Commissioner v Collier & Ors [2017] FCCA 1964. In that decision, the Court determined:
(a) That one aspect of this allegation in respect to s499 was that the first respondent entered the Project site, proceeded around the Project site, and was not accompanied by a person who was a “fully inducted project representative”;1
(b) The first respondent chose to exercise the privilege available to him in this case the consequence that the applicant, in the absence of any other indicator to the contrary, could not know that the first respondent would put forward that Mr Hackett met the description of a “fully inducted project representative”.2”
[Footnotes omitted from the original.]
Sixth, for the avoidance of doubt, I note that there was no dispute between the parties that to make out the various elements of the contraventions of the Act, as alleged against Mr Collier, ABCC bears the onus of proof. (Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64 at [46]).
Seventh, that that onus is to be discharged, bearing in mind the standard explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (“Briginshaw”). In particular, that the “test” requires the requisite satisfaction in making findings of fact, given what are the serious allegations against Mr Collier, that they are not to be made based on “inexact proofs, inadequate testimony or indirect references” (Briginshaw at 362).
Eighth, there was no dispute between the parties that what was required in the current case was the application of the rules of evidence and procedure for civil matters given these proceedings involve allegations of contraventions of a civil remedy provision. (See s.551 of the Act).
Ninth, Mr Collier stressed in his submissions, that in the context of the civil onus falling on ABCC, s.140 of the Evidence Act 1995 (Cth) also requires that when making findings of fact the Court must have regard to the gravity of what ABCC alleges (Australian Building and Construction Commissioner v Hall [2018] FCAFC 83), and as that relates to the Briginshaw “standard”.
Tenth, there did not appear to be any disagreement between the parties as to the relevant elements in relation to each of the contraventions alleged, pursuant to ss.499, 500 and 503 of the Act.
I note, as a general guide, that in his submissions Mr Collier has set these out in respect of each of these sections:
1 Regarding s.499:
“5. What must be proved?
(i)That the person is permit holder;
(ii)That the person exercises a State or Territory OHS right;
(iii)that there is an occupier of the premises;
(iv)that there is an occupational health and safety requirement that applies to the premises;
(v)that there is a request to comply with the occupational health and safety requirement;
(vi)that the request is reasonable.”
[Errors in the original.]
2 Regarding s.500:
“12. What must be proved?
(i)That the person is permit holder;
(ii)That the person is exercising or seeking to exercise rights in accordance with this part;
(iii)That the person hinders or obstructs another person;
(iv)That the person does so intentionally; or
(v)That the person otherwise acts in an improper manner.”
3 Regarding s.503:
“15. What must be proved?
(i)That a person took action;
(ii)That in taking that action that the person had the intention (or was reckless) of giving the impression that doing of a thing was authorised under the Part;
(iii)Where the doing of that thing is not authorised by the Part;
(iv)Where the person does not reasonably believe that the doing of the thing is authorised.”
Eleventh, the hearing of this matter took place some three years after the events of 5 March 2014. The issue of memory, and recall, therefore, must be factored into the assessment of the evidence given by the respective witnesses. For this reason, generally, consideration should be given to according appropriate weight to documents created, or in existence, at the relevant time, or any contemporaneous notes as to the relevant events. Having said that, however, the weight to be accorded to evidence, and its comparison to other evidence before the Court, should not be determined by some general formula arising from the notion of the vagaries of memory. Each piece of evidence is to be considered and weighed having regard to its own character and presentation and the character of other relevant evidence.
Twelfth, in his submissions of 4 June 2018 (at [51] – [57]), and before the Court, Mr Collier complained that ABCC did not pursue contraventions against Lend Lease. He asked the Court to not let this “conduct pass unnoticed”.
What is of note is not any alleged failure by ABCC, but that Mr Collier believed it was appropriate to make lengthy submissions about a matter not raised by the SOC, and irrelevant to any matter that requires the Court’s consideration in the disposition of the application actually made to the Court.
The Witnesses
Given the distinct differences in the evidence between witnesses, and the importance of whose evidence is to be preferred in relation to these differences, it is of benefit to set out an overview of the evidence given, and the critical evidence relevant to the findings of fact necessary to determine the application.
ABCC
The following evidence was given for ABCC. I have set out the evidence in the following order so as to start with an “overview” of the relevant events of 5 March 2014 and then to focus on evidence about specific events.
ABCC: Mr Barker
Mr Ross Murray Barker, who was, at the relevant time, a Safety Manager, employed by Lend Lease. He reported to Mr Barry Murphy, the site project director for Lend Lease. His role was to manage and facilitate safety and to ensure compliance with relevant legislation. He held certificates in OHS and Residential Building studies and had a diploma in WHS.
Mr Barker’s affidavit evidence was to, in effect, put before the Court a statement dated 11 March 2014 which he had given to a Fair Work Building Industry Inspector (“RMB-1”).
For current purposes, Mr Barker’s evidence (in his statement) was that on 5 March 2014 he “heard” that Mr Collier (and another union official – Mr Sloane) were on site. He was unable to attend to Mr Collier as he was involved in discussions with auditors. He received a call from Mr Little at 9:45am. He was told to leave the audit discussions and “assist” Mr Clothier (“Matt”) as: “things are starting to get nasty with the union...”.
He went to the site office where he saw Mr Clothier, Mr Collier and Mr Sloane, and Mr Dermot O’Sullivan, the general manager of BKH.
Mr Barker’s evidence was that he understood Mr Collier and Mr Sloane were on site to address concerns about “manual handling” by BKH workers on the site.
Mr Barker’s evidence is that after looking at certain documentation (Safe Work Method Statement – “SWMS”) Mr Collier said he was not satisfied that BKH was “addressing the issue”.
His evidence then stated that there was no requirement for “manual handling” to be produced in a SWMS, and that BKH was compliant with relevant work, health and safety requirements.
Mr Collier said that this was not “enough”. He and Mr Sloane wanted “to see evidence of training records”. Mr Clothier responded that these would be produced upon a “…formal request of the specific documentation required and within a reasonable framework”.
Mr Barker’s evidence was that the union officials took exception to this response, and Mr Collier stood up and said in a “stern” voice: “…We’re going on a safety walk with or without you regardless…”. Mr Clothier said: “No, you’re not. Manual handling isn’t a significant safety issue. I’m going to have to ask you to leave the project”.
Mr Collier and Mr Sloane walked out of the office. Mr Clothier followed them and Mr Barker followed Mr Clothier. Mr Clothier asked them to leave the project, adding: “Otherwise, I’ll be forced to contact the authorities”. Mr Barker’s evidence is that Mr Collier replied: “We’re going on a safety walk. Call the authorities.”.
Mr Barker’s evidence is that he saw Mr Hackett, who was described as “LLE’s CFMEU Site delegate”, approach Mr Collier and Mr Sloane and say: “Look guys, he’s asked you to leave the site”. Mr Barker’s evidence is that Mr Collier and Mr Sloane continued to walk onto the site.
He saw Mr Clothier and Mr Hackett follow them. He then went and reported these events to Mr Little and Mr Murphy, and then he and Mr Murphy “caught up” with Mr Clothier, Mr Hackett, Mr Collier and Mr Sloane, who had reached an area of the site known as “Building Area Basement 2”. He then followed them to “BAB 3”.
Mr Barker’s evidence was that on a number of occasions Mr Clothier told Mr Collier and Mr Sloane that: “The police have been called. I’d like you to return back to the site office”.
Mr Barker saw Mr Sloane, Mr Collier, and Mr Hackett approach four BKH workers who were “manual handling” material. His evidence was that he and Mr Clothier and Mr Little “…were a short distance behind”. He could not hear what was being discussed with these workers. However, he did hear one of the workers say: “…well we don’t stop unless our supervisor instructs us.” These workers continued working.
Mr Barker’s statement at page 8 – 9 of 15 is in the following terms:
“28. At the time there were four BKH workers who at the time were manual handling material. Sloane, Collier with Hackett in tow approached these workers. Clothier, Little and I were a short distance behind. I could not hear what they were discussing with the workers.
I heard one of the workers say, “well we don't stop unless our supervisor instructs us.” These workers continued working.
Sloane, Collier with Hackett in tow Collier proceeded to Basement 3. Clothier, Little and I were following. At the time there were around four (4) BKH contracted workers, and around six BKH formworkers.
Collier approached the workers that were on the scaffold to the wall and said loudly, “Stop work. Down tools. We're having a mass meeting because of safety. Go to the sheds for a meeting.”
The workers looked at the organisers and said, “What are the safety concerns?” They didn't understand what was going on.
Collier said: “We're having a mass meeting at the sheds.”
The workers looked toward Clothier, Little and I and Clothier said, “These guys have been asked to leave site.”
One of the workers said to Collier: "Will you guarantee our wages?"
Collier did not say anything. The workers stopped work and waited to see if any other worker would follow the demands of the organisers. It appeared to me that they were confused and didn't know what to do.
Collier and Sloane with Hackett in tow returned to B2 and approached a crew of about eight (8) BKH contracted steelfixers who were working on the Southern wall. Clothier, Little and I followed.
Collier said: “Stop work. We're having a mass meeting.”
Sloane also said: “Stop work.”
One of the steelfixers said: “Our supervisor tells us when to stop work. Talk to our supervisor.”
I could recognise the steelfixer again if I saw him.
Collier said: “Who is your supervisor?”
The steelfixers told him the name of the supervisor, which I cannot recall, and continued to work.”
[Errors in the original.]
Mr Barker then returned to the site office, as he had been told that Fair Work Inspectors had arrived. He then accompanied the inspectors to the location on site where Mr Collier and Mr Sloane had progressed.
The inspectors produced their identification. Mr Barker’s evidence is that (but for an initial handshake by one of either Mr Collier or Mr Sloane with one of the inspectors) they ignored the inspectors, and with Mr Hackett, continued their walk to the “building works”.
They approached five BKH “…contracted steel fixers and scaffolders”. Mr Collier said: “it’s not safe for you to be working here. Stop work”. They continued working.
At this point four police officers arrived. Everyone returned to the site office where the police questioned all present (including the Fair Work Inspectors) as to whether the entry (onto the site) of Mr Collier, and Mr Sloane, was lawful.
Mr Barker’s evidence is that during this questioning, one of the police officers asked Mr Collier: “Did you ask workers to stop work on the site”. Mr Collier answered: “We did not. It was the elected health and safety representative”. Mr Collier pointed to Mr Hackett.
Mr Hackett said nothing. Mr Clothier said: “That’s not correct. It was you Luke [Mr Collier] that was directing the workers to stop work”.
Mr Barker’s evidence then is:
“37. The Fair Work Inspectors told the group what was lawful and unlawful and that manual handling is not reasonable grounds to enter the site and undertake a site inspection or stop workers. The Fair Work Inspectors also discussed the 'Right of Entry Permits', but I didn't fully understand what they were talking about.
The Police Officers asked both Collier and Sloane to produce their 'permits'.
Sloane produced his permit which was queried by Fair Work Inspectors over the size of the permit. Something should have been A4, but it was A5.
Collier produced one permit, but said, “my other permit is in the car.”
The Fair Work Inspectors told the Police Officers that the permits must be with them at all times when on site.
The police determined the entry to be unlawful and advised Sloane and Collier that they were trespassing.
Collier said: “I'm here lawfully under health and safety reasons.”
Collier continued to challenge his right to be on site.
The Police Officer said: “We are telling you now that you are here unlawfully and asking you to leave the site.”
Collier said: “What are you going to do if I don't leave.”
The Police Officer used an official phrase and said, “I am (mentioned his title), ....” the inspector then proceeded to say words that included, “I will now have to forcibly remove you from the premises.”
Collier challenged his right of entry once again.”
[Errors in the original.]
The police were then said to have “forcibly removed” Mr Collier from the site. Mr Sloane was “escorted” from the site.
As is evident, I have set out Mr Barker’s affidavit evidence (his statement) as to the events (from his perspective) of 5 March 2014. It is a generally coherent account, which provides a basis on which to understand the evidence of the other witnesses as to what occurred. In particular, to “compare” Mr Collier’s evidence.
I note that in his statement Mr Barker stated:
“2. I have also been informed by Inspector Siciliano that this statement may be used in proceeding or prosecution under State or Federal Law.”
Mr Barker was cross-examined on his evidence. Mr Collier now submits that Mr Barker’s evidence, as ultimately given before the Court, in effect, was not of assistance to ABCC. He notes the following from the cross-examination.
One, that Mr Barker confirmed that he could not hear what Mr Collier, Mr Sloane, and Mr Hackett were saying to the workers.
Two, Mr Barker gave evidence that the workers at the “Basement 3” area were told to stop work because they were going to attend a “mass meeting about safety issues”. However, he could not recall who spoke these words (either Mr Collier, or Mr Sloane, or Mr Hackett).
It is the case that in his evidence before the Court, Mr Barker stated that he could not recall which of the three uttered the words to the workers to stop work. However, his evidence was clear that at least one of the three did tell the workers at the “Basement 3” area to stop work.
This issue is dealt with below in comparing Mr Barker’s statement with his subsequent oral evidence.
Other aspects of Mr Barker’s evidence, which were not successfully challenged in cross-examination, were that Mr Clothier variously told Mr Collier, while in his office, to leave the project, and subsequently after he had progressed onto the site, to return to the site office, or leave the site.
Mr Barker did confirm in his evidence that when asked by the police as to whether he told workers to stop work, Mr Collier replied that he did not, but that it was the “elected health and safety representative” who had done so. (That is, Mr Hackett).
Further, he remembered that the Fair Work Inspectors told Mr Collier that the matter of “manual handling” was not a reasonable basis on which to enter the site and undertake a site inspection, or to tell workers to stop work. He also remembered Mr Collier’s response that he was on-site “lawfully under health and safety reasons”. (For reference, Transcript of Court hearing (“T”) 61 Lines 10-11 of 20 March 2017 transcript).
ABCC: Mr Little
Mr Kieron Dominic Little, who was employed by Lend Lease as a Construction Manager. Mr Little also provided a statement to the Fair Work Building Industry Inspector. The statement was dated 10 March 2014. It was annexed to his affidavit filed in these proceedings
(“KDL-1”).
Mr Little’s relevant affidavit evidence, including the statement that he gave soon after the events of 5 March 2014, is as follows.
There had been an “impromptu” meeting with CFMEU officials, which included Mr Collier, on 4 March 2014. Mr Collier returned to the site on 5 March 2014.
Mr Little received a call from Mr Murphy, in context, sometime around 10:30am, who told him that CFMEU officials had been refused entry to the site. He was told that the “issue” was training for BKH employees in manual training.
He was told by Mr Murphy that the union organisers should be told to leave the site. Mr Little was of the view that this was not an issue that warranted intervention by the union.
Mr Little “located” Mr Barker and Mr Clothier, who were “with” Mr Collier and Mr Sloane. He approached Mr Clothier, and asked him whether Mr Collier and Mr Sloane had been advised to leave the site.
He saw Mr Clothier approach Mr Sloane and Mr Collier, and asked them to leave the site, or else the authorities would be called. One of the union organisers said that they would not be leaving.
After making a telephone call to Mr Murphy, Mr Little told Mr Sloane and Mr Collier that the authorities had been called. Mr Collier asked which authorities, Mr Little replied that it was the police. He further told Mr Collier that they would be provided with the information relevant to the manual handling matter. Mr Little told him that they would address any “gaps” in training, but the issue did not justify “external training” as Mr Collier had insisted.
Mr Collier and Mr Sloane then stated that Lend Lease had not adequately addressed issues identified at a meeting on the previous day.
By this time, Mr O’Sullivan and Mr Hackett had arrived at that location. Mr Collier and Mr Sloane then approached BKH employees “directly”. Mr Little was standing near Mr Collier. He heard him talking with a group of BKH employees. Amongst other things, he heard him say that “…We want you to stop work”. Although the workers appeared hesitant, they stopped work.
Mr Little’s evidence was that Mr Collier then said to him: “Are you going to stop the rest of the BKH guys at the other end of the site or do I have to walk around the rest of the site to speak to them?” Mr Little replied: “I’m not going to be stopping any work”.
Mr Collier, Mr Sloane, and Mr Hackett then proceeded towards the southern end of the site. He followed them. Mr Collier and Mr Sloane walked up to groups of workers in various locations around the site.
At one point he saw Mr Collier, Mr Sloane, and Mr Hackett walk over to a group of BKH workers (15 or 20). Mr Collier spoke to them. He did not hear what was said. But the BKH workers then stopped work. In all, Mr Sloane and Mr Collier had by this time stopped about thirty (30) workers from working.
By this time they were joined by Mr Clothier. Mr Collier asked that they return to the office and continue the discussion there. Mr Little agreed. On the way back they encountered Fair Work Inspectors, who were being escorted by Mr Barker.
By this time police had also arrived on the site, and he saw them speak to Mr Collier and Mr Sloane. Mr Murphy, Mr Clothier, and Mr Barker were also present.
Discussions were then held outside the site office. Present were four police officers, Mr Sloane, Mr Collier, Mr Clothier, Mr Barker, Mr Murphy, Mr Maher, the Fair Work Inspectors, and Mr Little.
Mr Collier advised that he and Mr Sloane were at the site because of a safety breach under the Act. Mr Collier said: “The delegate has directed the workers to stop work in accordance with the powers under the Act”.
The Fair Work Inspectors told the police that Lend Lease was “handling” the matter appropriately and if “they” wanted the union officials to leave the site they (the union officials) should do so. One of the inspectors also told the police that Mr Collier and Mr Sloane should have shown their relevant Federal and State permits on arrival. The police asked to see the permits. Mr Collier said: “Mine’s in the car”.
Given some of the matters alleged in the SOC, the following is of note from Mr Little’s statement:
“69. Maher then spoke to them for few minutes and was summarising the situation and the course of events on the day.
Maher then said: “And then you stopped the workers?”
Collier denied it and said: “No, the HSR stopped the work which he’s entitled to do.”
70. There was some discussion between Maher and Collier as to who’d given instructions, but at that stage the details of who said what to whom was a low priority at the time. I just wanted to get on with my work.
71. The Police Officer asked us if we wanted them removed from the site and we told him we did. I think it was Murphy or Clothier who said they wanted him removed from the site.
Collier said: “I’m not going to leave, so what do we do next?”
72. The Police Officer then identified himself formally and asked him to leave the site.
Collier said: “No, I’m not going.”
73. The Police Officers then proceeded to remove Collier physically from the site. It wasn’t aggressive or violent. It was more like they were escorted from the site. There was one on each side and I think they held their arms, but they walked freely out. There was no noticeable resistance from Collier. The Police Officers then returned for Sloane and escorted him out in the same manner.”
[Errors in the original.]
I note that Mr Little’s statement dated 10 March 2014 was drafted with reference to file notes which he drafted on 5 March 2014. (See the statement at [75]).
In cross-examination, Mr Little confirmed that he could not say “exactly” what Mr Collier told the BKH workers, but he did speak to them and they stopped work. He did not know whether Mr Sloane and/or Mr Hackett also spoke to the BKH workers.
ABCC: Mr Clothier
Mr Matthew Owen Clothier was, at the relevant time, employed by Lend Lease as a General Superintendent. He also provided a statement (dated 11 March 2014) to the Fair Work Building Inspector (Mr Mark Lanigan-O’Keeffe), which was annexed to his affidavit filed in these proceedings (“MOC-1”). The statement asserts that Mr Clothier made notes of the events of 5 March 2014 the following day. (See [58] of the statement).
At about 8:50am on 5 March 2014, he received a telephone call from Mr Hackett, who advised that union organisers were at the front of the site and wanted to see him. He went to the entry gate and saw Mr Sloane and Mr Collier.
When asked why he had come to the site, Mr Collier told him he had received some complaints from “steel fixers and from workers about manual handling issues” (see Mr Clothier’s affidavit of 17 July 2015 at [9]):
“9. I refer to paragraph 26 of my statement. In that paragraph, I refer to a conversation I had with Collier. The conversation was to the following effect:
I said: What is the reason for being on site?
Collier said: I’ve received some complaints from steel fixers and form workers about manual handling issues.”
Mr Clothier’s evidence is that (see [28] of Mr Clothier’s statement:
“28. I brought them in through the gate. I didn’t ask for permits at that stage. They signed into the visitor’s sign in book when they entered the site office... A copy of the visitor’s induction is placed on the counter next to the sign in book.”
They then entered his office. He asked Mr Barker and Mr O’Sullivan to come into the meeting. At this time, Mr Collier “…voluntarily showed his WHS permit” (see [32] of the statement).
The context for what follows in Mr Clothier’s evidence (as taken from other evidence before the Court) is that an issue had arisen between the union and BKH about training in manual handling procedures of BKH employees on site. The union wanted to see relevant documentation, including training records.
Mr Clothier’s evidence was that he told Mr Collier and Mr Sloane that he needed 24 hours to obtain those records from BKH. Mr Collier and Mr Sloane were: “…not happy with that” ([34] of the statement). The following conversation was then said to have occurred:
“34…Collier said: “Let’s go and have a safety walk then.”
I said: “We’re not going for a safety walk for unrelated issues. We’ve addressed the manual handling issues and we need more time to get the records.”
Collier said: “We are going to conduct a safety walk. What you’ve provided doesn’t address the issues.
I said: “I’m asking you to leave the project. We’re not going on a safety walk on unrelated matters and we need 24 hours to give you the training records you’ve asked for.””
Mr Clothier’s evidence was that Mr Collier and Mr Sloane left the office and “…walked out onto the project unescorted” ([35] of the statement). He and Mr Barker followed them. Mr Collier and Mr Sloane were about 40 metres ahead of them. He saw them speaking to a number of BKH workers. Mr Collier was “…doing most of the talking” ([11] of the affidavit). He could not hear what was said ([37] of the statement). In his affidavit, Mr Clothier’s evidence was that Mr Collier was “yelling at” the workers. But he could not recall what Mr Collier was saying.
Mr Clothier’s evidence (in his statement) was that when he and Mr Barker arrived at, in context, the location where Mr Collier was talking to the BKH workers, some of the workers told him that the “CFMEU Organisers had told them to stop work” (statement at [38]). The workers “were just standing around”.
Mr Clothier continued to follow Mr Collier and Mr Sloane who then separated. Mr Collier “was yelling out to workers in the basement area”. He saw some of the workers begin to exit the “building” (the location where they were working). He could not hear what Mr Collier was yelling. But some workers remained at the work location.
Mr Collier then walked down into the basement area. Mr Little had joined the group. Mr Clothier asked Mr Collier and Mr Sloane to leave the project. He told them that if they did not leave the authorities would be called. He could not recall who of Mr Collier or Mr Sloane said: “we’re investigating a safety breach and we haven’t finished”.
The group then walked to the basement area at the northern part of the site. He did not recall Mr Hackett telling anyone to stop work. He only saw Mr Collier speaking to the workers.
When returning to the southern part of the site, they encountered Mr Lanigan-O’Keeffe and Mr Barr (the FW inspectors). They were escorted by Mr Barker. Mr Sloane, Mr Collier and Mr Hackett “walked off”, and Mr Clothier remained with Mr Little and the inspectors.
Mr Clothier then went to the southern entrance of the building and saw that the majority of the BKH workers were working.
At this point Mr Murphy arrived with the police, who had a discussion with Mr Sloane and Mr Collier about why they were on the site. Everyone then walked back to the site office, which was near the entrance to the project. Of relevance is that Mr Clothier’s evidence is that Mr Collier denied telling workers to stop work, and said that it was Mr Hackett who told them to stop work.
The following evidence relates to Mr Collier’s and Mr Sloane’s “permits”: [paragraph 49 of the statement]:
“49. Collier and Sloane were asked by the Police Officer to show their permits. Collier and Sloane produced their WHS Permits. There were discussions about whether they had the correct permits, whether they showed them or not. Collier and Sloane both produced their WHS permits. Sloane produced a copy of a federal permit but it was a smaller size.
Collier said: “I left mine in the car”.”
In all, Mr Clothier’s relevant evidence (from the first affidavit and the statement) is that he told Mr Collier not to walk onto the site, beyond the site office (near the entrance). He then saw him talking to and “yelling" at various groups of BKH workers. He could not hear what was said. Some workers “immediately” stopped work. He presumed (“formed the opinion”) that Mr Collier had told them to do so, because some workers told him that that was the case, and because some workers had stopped “immediately” after being spoken to by Mr Collier.
In cross-examination, Mr Clothier confirmed that Mr Collier “voluntarily” showed his permit to enter “the site”. In re-examination, this was further explained as the permit to come onto the site to investigate any work, health, and safety (WHS) issue.
Mr Clothier also filed a second affidavit in these proceedings dated 24 January 2018. This deals with the matter of “fully inducted project representative” which was the subject of an order made by the Court on 18 August 2017. (See further below).
ABCC: Mr Murphy
Mr Barry Finbarr Murphy, who at the relevant time was employed by Lend Lease as a Project Director, provided an affidavit dated 21 July 2015, to which also was annexed a statement (“BFM-1”) dated 11 March 2014, which he had previously provided to the Fair Work Building Inspector. He also attached to this statement a further statement he gave his personal assistant on the afternoon of 5 March 2014.
His evidence was that at 9:46am, 5 March 2014, he was “made aware” by Mr Clothier of “safety concerns” raised by Mr Collier and Mr Sloane, who were on site. This followed various exchanges with union officials on the previous day about safety concerns on the site. The issue on 5 March 2014 was about manual handling. This had not been raised on the previous day.
Mr Barker then joined the discussion between Mr Murphy and Mr Clothier. Mr Barker told them that the union officials’ contention was that manual handling was a high risk activity. Mr Murphy’s evidence was that this was “not correct”. It involved a “risk”, but not a “high risk”.
Mr Barker told him that the union officials wanted to “procure” the records of individuals’ training. These were not kept by Lend Lease, but by BKH.
His evidence was that a visit by union officials onto the site was “unusual”, and had “occurred two days in a row”.
He obtained documents from the project manager of BKH and noted that “manual handling was identified as a risk and mitigation measures were addressed”.
Mr Clothier, Mr Barker and Mr Murphy agreed that they would “prove” to the union officials that manual handling issues had been addressed by BKH on the documents that were immediately available. There was “no indication” that there would be any escalation of this matter. He was concerned that the issues identified by the union officials “were unusual”.
At 10:15am, Mr Barker told him that “the union officials” (in context, Mr Sloane and Mr Collier) were “demanding access to site for a safety walk”. This had been refused by Mr Clothier, but the union officials were “looking to access the site anyway”.
He then sought out, in context, Mr Collier and Mr Sloane, and saw that Mr Hackett was with them. Mr Clothier was “behind” them. He was about 20 metres behind when he heard Mr Clothier “shout out” to the union officials to not access the site because there was no reason to do so. He asked them to go back to the site office to “deal with this”. He did not hear the union officials’ response.
The union officials then walked out of his sight. He agreed with Mr Clothier that Mr Clothier would follow them. He then “instructed” Mr Barker to “support” Mr Clothier. He then “pulled [Mr] Little out of a meeting”, briefed him on what had occurred, and told him to go and assist Mr Clothier.
At 10:46am, Mr Little advised him (in context, by mobile phone) that Mr Collier and Mr Sloane were still refusing to return to the site office, even though they had been told the police would be called.
At 11:33am, two Fair Work Inspectors arrived. He asked Mr Barker to escort them to where the union officials were located. At 12:00pm he escorted the police to a location adjacent to the south western corner of the “cultural space”, where the union officials were “located”.
His evidence then states (at [70] – [76] and [88] – [94] of his statement):
“70. When I arrived with the police officers and Maher, the police asked the Union Officials:
'What's going on, what are you doing?'
71. Collier responded: 'We are here to investigate a safety breach under the Act. We have the right permits and authority to do this'.
72. I said: 'Look sorry guys you don't'.
73. The police officersa said: 'How can we confirm this?'
74. I said: 'We have two Inspectors on-site from Fair Work. We could pose the questions to them'.
75. The police officers agreed.
76. It was agreed that we would convene a meeting at the site office and request that the Inspectors provide advice to the police on the legality of the Union Officials' access to site.
…
88. There was also a discussion regarding the stoppage of work.
89. Collier said: 'If there's a safety issue on-site we are entitled to go out there'.
90. Someone then replied: 'You're entitled to go out there but you're not entitled to stop men working'.
91. Collier said: 'It wasn't me who stopped work it was the HSR (Hackett) who stopped work'.
92. Clothier said: 'No Luke that's wrong. It was you who approached the workforce and stopped work. Not the HSR'.
93. Collier said: 'Do you have any proof?'
94. I can't recall if Clothier responded.
[Errors in the original.]
During examination in chief Mr Murphy was taken to a document which was said to be a “visitors’ induction to the Barangaroo Headland Park site”. The document had been filed in these proceedings as an annexure to the affidavit of Mr Peter Darlaston, and which accompanied the SOC (see [18], tab 12).
There was an objection from Mr Collier. The objection was essentially that Mr Collier did not understand that document to be part of the case pressed against him. In this regard, ABCC pointed to [10] of the SOC where reference is made to this document.
I allowed the tender of the document. Mr Collier was on notice of the existence of the document from the time of the filing of the SOC, and its reference in, and relevance to, ABCC’s submission that at the time of the tender Mr Collier had not filed his Defence, nor had he had that time filed his affidavit evidence. Ultimately the objection was withdrawn. (For reference, T 29 Line 34 of 20 March 2017). The document was marked “AE 3”.
In cross examination, Mr Murphy agreed that the manual handling matter was such that Lend Lease thought it important to include it in its own SWMS.
Mr Murphy agreed that Lend Lease regarded proper training in manual handling as “essential”, Lend Lease trained its own workers in manual handling, and that the union request, related to the concern about manual handling, was a “serious request”.
A number of questions were put to him concerning whether BKH had trained its workers and whether the training had occurred after 5 March 2014. He said he could not recall what had occurred in that regard.
For reasons relating to the reopening of its case Mr Murphy and Mr Clothier filed further affidavits in these proceedings, and were cross-examined on them. However it is convenient to first review the other evidence as this relates to the matters set out above.
ABCC: Mr O’Sullivan
Mr Dermot O’Sullivan was at the relevant time the General Manager of BKH. He also made a statement dated 21 May 2014 about the events of 5 March 2014, which he provided to the Fair Work Building Inspector (Mr Matthew Barr). This was annexed to his affidavit (“DO-1”).
On 5 March 2014 he received a telephone call while in his office (off site) and was told “the union” were on site. He had a number of telephone conversations with “Baulderstone” and BKH executives.
He was told that there was a “problem”. He then received a telephone call from Mr Clothier, who told him the union had “forced” their way onto the site, and police and Fair Work Building Inspectors had been called.
Mr O’Sullivan arrived at the site at about 10am. He spoke to a number of BKH employees (while he was waiting to be “inducted” onto the site) (at [44] – [45] of his statement]:
“44. I then spoke to groups of BKH workers who told me a number of things that had occurred on-site.
45. Some workers told me that they were sick of being yelled at. Other workers told me that it was close to smoko break so they adhered to the union’s request to stop work and had smoko. Other workers told me that the union told them to stop work but as soon as the union walked away, they went back to work.”
[Error in the original.]
About half-an-hour later (after the police had left) he spoke to Mr Clothier at the site office (see [50] – [52] and [55] of Mr O’Sullivan’s statement):
“50. Clothier said: ‘They (the union) were out there because apparently there have been a number of complaints from BKH workers with respect to manual handling. Darren Taylor, Tony Sloane and Luke Collier were here’.
51. I know Darren Taylor (Taylor), Tony Sloane (Sloane) and Luke Collier (Collier) to be CFMEU officials.
52. This seemed ridiculous to me as I had not received any complaints and because in four years of being General Manager for BKH I have never had any issue of this nature at all.
…
55. I then received a request from Clothier and Barker to produce a number of safe work method statements (SWMS) relating steel-fixing and scaffolding and risk assessments for manual handling by the next day as the union were coming back to go through these documents.”
His statement records that at no time did he see the CFMEU union officials on the site. Nor does it identify the union official that the BKH workers told him told them to stop work.
In examination in chief, Mr O’Sullivan gave evidence (to the best of his recollection) about the actual words used by the BKH employees when he spoke to them on site. This did not add much of substance to the thrust of his statement.
In cross-examination Mr O’Sullivan (with reference to “smoko” as it appears in his statement at [45]) was asked to explain what was meant by this term. What emerges from his evidence was that some workers stopped work because they were having a “smoko”, another group stopped work but then resumed work, and others continued to work.
Further, that Mr Hackett “could have been” with Mr Collier and Mr Sloane when they walked out onto the site.
ABCC: Mr Mark Lanigan-O’Keeffe
Mr Mark Lanigan-O’Keeffe was at the relevant time an Inspector with the Fair Work Building Industry Inspectorate. He filed an affidavit annexing a file note made on 5 March 2014.
His evidence was that he and Mr Barr attended the site office on 5 March 2014. They met Mr Little at the Lend Lease office who “briefed” them on the background as to why they were called to the site. He and Mr Barr were taken by another employee onto the site. They “met up” with Mr Clothier who “was accompanying” Mr Sloane and Mr Collier.
Mr Sloane and Mr Collier walked away from them. He asked Mr Clothier whether they had showed their permits. Mr Clothier said he asked them, but they said they did not have them.
After going to the site office, on the way back he saw Mr Sloane and Mr Collier with BKH workers.
Mr Sloane and Mr Collier had been brought back to the office area by police. His affidavit evidence is as follows (at [12] and [13] of Mr Lanigan-O’Keeffe’s affidavit of 17 July 2015):
“12. It was there that Barr addressed the police, in front of Sloane and Collier and a number of other Lendlease employees from management as to why Sloane and Collier were on Site unlawfully.
13. I recall saying words to the effect “also to access Site for safety you need to show State and Federal permit”. I do not recall now whether or not I specifically said that a State and a Federal safety permit would need to be shown if so requested. It is my practice to say “union officials must show State and Federal permits upon request.” This is the practice that I adopt as it is my understanding that a State and Federal permit needs to be shown only if requested. If I omitted to say the words “if requested”, which I cannot now recall, this was not deliberate. Earlier on I had asked the Lend Lease employees, being Murphy and then Clothier whether permits had been requested. The comment I made in front of the police was to my mind in the context of the earlier discussions I had about that issue.”
[Errors in the original.]
His file note is in the following terms:
“…Today, Sloane and Luke Collier of the CFMEU attended the project again for safety issues. When they arrived they held meetings in the site offices and went through manual handling procedures, including safe work method statements (SWMS). Sloane and Collier stated that the SWMS dealing with Manual Handling should be classified as ‘a high risk procedure’.
Baulderstone believe that they deal with manual handling appropriately and it is not a high risk procedure. All workers are aware of the SWMS dealing with manual handling on induction and it is a standard part of all SWMS. Sloane and Collier allegedly claimed that these SWMS were not acceptable...”
[Errors in the original.]
In cross-examination, Mr Lanigan-O’Keeffe confirmed that at the time of drafting his affidavit (some three years after 5 March 2014), he did not have access to his file notes. He drafted the affidavit from memory.
He could not recall Mr Little’s answer as to whether Mr Sloane and Mr Collier had been asked for their permits. He could not recall details about a conversation concerning entry permits on return to the office. Although he did remember that Mr Barr stated that Mr Sloane and Mr Collier were on site unlawfully, because they did not produce their entry permits.
Mr Lanigan-O’Keeffe also gave evidence that a union official entering a site for the purpose of a safety inspection is not required to produce an entry permit, unless requested to do so by the employer. He did not know whether this had occurred. Nor did he remember whether he had been told that such a request had been made.
Mr Lanigan-O’Keeffe also gave evidence that the file note he attached to his affidavit was drafted by Mr Barr.
The cross-examination of Mr Lanigan-O’Keeffe also revealed that although he stated the file note was “accurate”, his knowledge of relevant events, for the most part, and generally derived from what he was told, not, relevantly, what he observed or heard directly.
What he did see and hear was that Mr Hackett was with Mr Collier and Mr Sloane, and that Mr Collier “was alleging” that Mr Hackett, as the Health and Safety Representative (“the HSR”), “could shut down the site”. He confirmed that the HSR could do this, and was entitled to do so.
It is not necessary to set out in detail Mr Lanigan-O’Keeffe’s evidence given in cross examination. His admitted lack of first hand observation of most of the relevant events, and his answers to questions about events where he was not present revealed that his evidence is of no assistance to ABCC. If anything (on the issue of Mr Hackett and the matter of the HSR), it assisted Mr Collier.
ABCC: Mr Barr
Mr Matthew Barr was at the relevant time a Fair Work Building Inspector. His affidavit of 14 July 2015 annexes a statement about the relevant events of 5 March 2014, and was made on 13 March 2014, and a supplementary statement dated 12 May 2014.
His evidence is that on 5 March 2014, at 11:15am, he and Mr Lanigan-O’Keeffe arrived at the site. They met Mr Murphy. He and Mr Lanigan-O’Keeffe signed “the sign in register”. He noticed that above his name, Mr Collier and Mr Sloane had also signed this register.
Mr Barr also stated:
“11. Murphy said: ‘Yesterday Tony Sloane and another CFMEU official came to the site under a safety breach notice. They were here because of safety. They came up with 18 safety issues that needed to be rectified. These issues were not of a serious nature and were not a threat to the immediate safety of workers. We took these safety issues on board and rectified them immediately. I haven’t been involved in what has happened today and this is second hand but this what I have been told about what’s happened today. This morning, we had Tony Sloane and Luke Collier come to site and they stated that they were here again for safety. They both made a point of showing their permits’.
12. Lanigan-O’Keeffe or I then asked what permit this was. Murphy replied: ‘I’m not sure, I wasn’t involved’.
13. Murphy said: ‘Their issue was with high risk manual handling and that they wanted to see high risk SWMS (safe work method statements). When they (Collier and Sloane) were told that these could be provided they said that it was not acceptable. They (Collier and Sloane) then said that they wanted to access the site and to stop work. When they (Collier and Sloane) were told that they couldn’t go onto the site, they went onto the site anyway despite Baulderstone telling them not to. They (Collier and Sloane) walked out unaccompanied and started addressing workers, telling them that the job is unsafe. Work has stopped in one section and they (Collier and Sloane) are still on-site. I understand that the police were called an hour ago but have not turned up as yet.’”
[Errors in the original.]
What is of note is that this evidence is essentially a report of what he was told, not what he observed for himself.
At [40] – [56] of his evidence Mr Barr stated:
“40. I then addressed everyone and said: ‘They have come here to exercise a state OH&S right. The site occupier told them (Collier and Sloane) that they could not access the site. They (Collier and Sloane) then went onto site against that instruction unescorted, going against the OH&S requirements of the site. They (Collier and Sloane) then went to a section of the site and stopped work which they cannot do.’
41. Lanigan-O’Keeffe then said: ‘Also, to access site for safety, you need to show a state and a federal permit’.
42. Luke then addressed Collier and Sloane and said: ‘Did you show your permits?’
43. Collier and Sloane both said: ‘Yeah’.
44. Someone (I cannot recall who) said: ‘No you didn’t’.
45. Clothier then said to Collier: ‘You went onto the site without our permission and without showing both your permits’.
46. Collier replied: ‘No that’s an allegation’.
47. Clothier replied: ‘I witnessed it!’
48. Luke said: ‘Luke do you know that you have to show both permits?’
49. Collier said: ‘They didn’t ask for both’.
50. Luke then asked both Collier and Sloane: ‘Where are both your permits?’
51. Sloane produced a plastic pouch and pulled out an A5 piece of paper and said: ‘There it is’.
52. Lanigan-O’Keeffe said: ‘It’s usually A4’.
53. Sloane said: ‘It shrunk in the wash. You can read the numbers’.
54. Luke then asked Collier: ‘Where is your federal permit Luke?’
55. Collier then said: ‘It’s in the car’.
56. Collier kept on saying in a raised voice: ‘What are we gonna do here?’ Each time Lanigan-O’Keeffe spoke, Collier raised his arm as if to palm off what he was trying to explain in relation to permits.”
[Errors in the original.]
[For the matter of “permits” see further below].
Mr Barr also gave evidence that Mr Collier denied telling the BKH workers to stop work, and that it was Mr Hackett who had done so.
In cross examination, Mr Barr confirmed that a union official has a right to enter a site for safety purposes, so long as they exercised that right “appropriately” under “respective Acts”. (Presumably relevant Federal and State legislation). That is a right to be exercised by a permit holder. He also confirmed that he was told that that was what Mr Collier was doing.
What also emerged was that Mr Collier was known by Mr Barr to be a permit holder and that he had sought to exercise the right to enter the site during working hours. Further, Mr Barr confirmed that Mr Collier had been “refused” entry onto the site.
Mr Barr also confirmed his evidence that Mr Hackett was “Baulderstone’s health and safety representative for the site”, and that he “followed” Mr Sloane on to the site.
He also confirmed that he and Mr Lanigan-O’Keeffe had a discussion with either Mr Little and Mr Clothier. It was explained (either Mr Little or Mr Clothier – he could not recall who) that Mr Collier and Mr Sloane had “issues” with manual handling and had been told they (the union officials) could not have had access to the site. (With reference also to his statement at [28]).
Mr Barr gave evidence that Mr Collier had “entered the site unlawfully” because he had proceeded onto the site without his “escort”.
In this context he also gave evidence that when he saw “them” on site, Mr Hackett, whom he knew was a “representative of Baulderstone”, was with Mr Collier. However, he also explained that when he saw them was some time after Mr Collier had entered the site. He formed the view that Mr Collier had entered the site unescorted because of the information he had been given (by Lend Lease personnel).
Mr Barr also confirmed that the requirement to “show a state and federal permit” to enter a site for safety reasons, was only engaged if the person entering the site was asked to show a permit.
ABCC – Mr Maher
As set out above Mr Maher also provided an affidavit in these proceedings. In essence, this was for the purpose of putting before the Court a statement, dated 26 March 2014, which he gave to a Fair Work Inspector. (KJM-01). This was admitted into evidence. (However, see Schedule 1). Mr Maher was not required for cross-examination.
Mr Maher was not on site on the morning of 5 March 2014. He arrived on site at approximately 12:00pm. His statement can be relevantly divided into three parts. One, what he was told was happening on site prior to 12:00pm by Mr Clothier. I have relied on Mr Clothier’s evidence in this regard as to what he says occurred. Two, what occurred when he arrived at 12:00pm. At this time the police had arrived. His statement did not directly assist in relation to the critical events up to that time. Three, events in the afternoon involving discussions with an Assistant Secretary of the CFMEU which was not relevant to the disposition of the matters for consideration in this case.
The Witnesses for Mr Collier – Mr Hackett
Mr Dean Hackett was at the relevant time employed by Lend Lease at the site. He was a Health and Safety Representative (“HSR”) elected under the WHS. His affidavit evidence in relation to the events of 5 March 2014 is as follows.
He met Mr Collier and Mr Sloane at the front gate of the site. He called Mr Clothier who came down to the front gate, and let Mr Collier and Mr Sloane into the site. Mr Collier and Mr Sloane went with Mr Clothier to the site office. He did not go in with them.
He gave evidence that the employer’s policy was that a representative of, relevantly, Lend Lease, “who had been inducted” was to “walk with” any non-inducted person who was on site. Mr Hackett denied the assertion in Mr Barker’s evidence that he told Mr Collier and Mr Sloane that they had been told to leave the site.
Contrary to some of the evidence from ABCC’s witnesses, Mr Hackett’s evidence was that he was with Mr Collier, and Mr Sloane, “the whole of the time they were on site.” (At [14] of his affidavit). Presumably he meant after they left the site office, given his evidence at [7] of his affidavit that when they were in the site office, he went back to his work area to “secure my machine”, and when he returned he “hung around” outside while they were in a meeting with Mr Clothier. I note also that the site office was adjacent to the site itself.
He agreed that Mr Clothier and Mr Barker followed when he and Mr Clothier and Mr Sloane walked around the site. At first they were 50 metres behind, then they caught up to them.
He denied that Mr Collier or Mr Sloane told workers to stop work. His evidence was that on the way to the main work area, relevantly, Mr Collier was “just looking around”. He was no more than 10 metres away from Mr Collier and Mr Sloane at all times. There was no “yelling”.
He saw that several workers were leaving the work area to go back to the “sheds for smoko”. He told them that “we wanted manual handling to cease”. Other work could go on. He said this to several different groups of BKH workers.
Neither Mr Collier or Mr Sloane told anyone to stop work. He was the only one to say this. There was no mention of any “mass meeting”.
In cross examination, Mr Hackett agreed that his affidavit was prepared some three years after the events of 5 March 2014. He did not keep any notes from that time, nor did he prepare the affidavit with reference to any documents.
His evidence was that he had a “memory” of the relevant events, although he could not remember what day of the week it was on which 5 March 2014 fell. He did not have a “complete memory” of what he did on the next day.
He confirmed that he was the workplace health and safety representative. However, prior to 5 March 2014, he did not himself raise any issues about manual handling and BKH workers.
Mr Hackett was asked whether prior to 5 March 2014, he had ever raised any issue in relation to BKH in exercise of his powers and functions under the WHS. Ultimately, following some claimed inability to understand the question, he answered “No”.
He also gave evidence that he did a safety walk once every week. While he gave evidence that he discussed manual handling issues with BKH employees, he was unable to recall when he had had such discussions with either employees or contractors.
There were some difficulties with Mr Hackett’s evidence. For example, at [5] of his affidavit, Mr Hackett stated:
“5. Where in this affidavit I respond to paragraphs of affidavits filed by the Applicant in these proceedings, the Solicitors for the first respondent have drawn my attention to those particular paragraphs, not the whole affidavit.”
He was unable, in cross examination, to explain what he meant by this, and the processes by which these words were drafted. Ultimately he stated he did not understand “that paragraph”.
Further, he gave evidence that prior to 5 March 2014, he had no idea whether BKH had trained its employees in manual training, nor of any relevant records held by BKH.
It was put to Mr Hackett that when he “set off” with Mr Collier and Mr Sloane (in context on 5 March 2014) he had not seen any incident of unsafe manual handling, nor had he given notice to “the person conducting the business” of any relevant problem.
Mr Hackett’s response was that he told the site manager he was going for a walk on the job because there were “concerns about access/egress”. It must be said that it was not apparent that this had any connection to manual handling.
Mr Hackett insisted he had spoken to the “site manager”, (on 5 March 2014), but then conceded that there was no reference to this in his affidavit. He also agreed that he did not have a conversation (at that time) about manual handling.
Mr Hackett’s evidence was that on 5 March 2014 some “guys were doing” the manual handling work in a way that was not compliant with manual handling training. He explained this involved moving “timbers”.
He also gave evidence that he had seen this at a time prior to 5 March 2014. However he did not raise it with BKH or Lend Lease. He said he raised it with a safety committee member from BKH (another worker). Nor did he discuss this matter with Mr Clothier after 5 March 2014. He also confirmed that he did not tell Mr Clothier or Mr Murphy that he had told workers to stop work.
His evidence was that he spoke to workers (on 5 March 2014) about stopping work on three occasions. The first at the base of the car park area (four workers). The second 15 metres away (four – six workers). The third in the basement car park (about four workers).
In cross examination it was Mr Hackett’s initial evidence that he had started the safety walk in relation to access and egress matters. He then confirmed it was about “egress”. His evidence was that he “would have told them about this on these three occasions. Ultimately his evidence was that he could not remember with whom he had discussed the matter of “egress”.
In his affidavit evidence, Mr Hackett set out what he said he told the various groups of BKH workers (at [21] and [26]). From the affidavit, the essence of what he says he told them was that there were concerns about manual handling. At [21], he says he told them to cease only manual handling, and to continue with other work. At [26], he says he told them that there were issues with the training for manual handling. Mr Hackett also gave evidence that some workers stopped working on manual handling, but continued to do other work (“grinding”).
It must be said that Mr Hackett’s evidence in cross examination in answering what were, after all, simple questions about what he told the BKH workers, lacked the clarity and certainty exhibited in his affidavit evidence, which on the evidence, had been prepared with assistance from Mr Collier’s solicitors.
Mr Hackett confirmed that while he, Mr Collier, and Mr Sloane were on their safety walk, Mr Clothier directed Mr Sloane and Mr Collier to leave the site, or else he would call the authorities.
Mr Hackett was unable to satisfactorily explain what a “fully inducted project representative” was, and the responsibilities of that position. His evidence was, at best, that he was a “project representative”.
While he confirmed, when it was subsequently put to him, that a “fully inducted safety representative” was required to “sign on” with the person being escorted, he did not “sign on for Mr Collier”. Nor did he ensure that Mr Collier completed the visitor “sign in/sign out book”. Nor was he able to satisfactorily explain whether Mr Collier had a visitor “identification tag”, or if he had one that he returned it. In re-examination, Mr Hackett gave evidence that only “employees” and “management” were given ID tags. Visitors did not get a tag.
Mr Hackett gave evidence that he did witness Mr Collier speak to “a couple of formworkers” (On 5 March 2014). He confirmed they were BKH employees. His evidence was that it was “just a general conversation”, and then he [Mr Hackett] spoke to them about manual handling. This was in the basement area.
However, he also gave evidence that there was a distance of about 10 metres between him, Mr Collier and Mr Sloane, and that the site was “noisy”, and it was necessary to speak “loudly, which he subsequently agreed could be thought of by some people as shouting or yelling.
Mr Hackett confirmed his evidence given in his affidavit that neither Mr Collier or Mr Sloane told workers to stop work. However, he then agreed that he did not know if Mr Collier in particular, or Mr Sloane, told the workers to stop work. While he gave evidence that he told the workers to stop work, he could not say that he was the only one to do so. He insisted, however, that those workers that stopped working only did so when he told them to do so.
In all, it must be said that, with respect to him, Mr Hackett did not impress as a witness. His oral evidence was confused, and further, in at least some important respects, was inconsistent with his affidavit evidence.
One, in his affidavit, Mr Hackett clearly stated: “neither Luke [Mr Collier] or Tony [Mr Sloane] asked or told any workers to stop work” (at [23]).
Yet it became apparent in cross examination (and not addressed in re-examination) that given the circumstances (10 metres away, and that it was loud and noisy), he was not in a position to hear what Mr Collier discussed with workers on the occasions when he said Mr Collier did talk to the workers. In short, he was not able to hear what was said.
Two, Mr Hackett’s evidence that the responsibilities of a “fully inducted project representative” was demonstrably to the effect that he did not know of the full range of responsibilities of this task. Nor in re-examination was he asked to explain the difference, if any, between what he described as a “project representative” and a “fully inducted project representative.”
Three, Mr Hackett’s evidence was that the issue of concern, in context as at the beginning of 5 March 2014, was “access and egress”, or subsequently in his oral evidence only “egress”. Although given in a confused way, this is important. In the “sequence” of events as emerged from his evidence, it was only after the arrival of Mr Collier and Mr Sloane that he became aware of the issue of manual handling.
Mr Hackett’s evidence that he did not go into the site office with Mr Clothier, Mr Collier, and Mr Sloane soon after they arrived at the site, gives rise to the view that Mr Hackett was not central to the raising of the issue of manual handling.
That he went back to the worksite to secure his “machine”, which he had left when Mr Collier called him to the front gate, says two important things.
First, as a work, health and safety representative, Mr Hackett was unable to satisfactorily explain why he left the machine in such a state that he needed to subsequently return to secure it. This can be seen as providing context to the line of questioning in cross examination about his knowledge of his responsibilities and obligation under the WHS. This in turn provides context for his subsequent evidence concerning the manual handling issue, and ultimately his lack of understanding of the importance of the project representative who accompanied visitors around the site, being “fully inducted”.
It is clear on the evidence that Mr Hackett had no idea that manual handling was a specific issue of concern as at the beginning of 5 March 2014. On the evidence it was Mr Collier who had received what were variously described as complaints from workers, or as it subsequently emerged, one telephone call from someone who said he was a worker, which led to his arrival at the site on 5 March 2014.
I note that this followed a day of discussions with Lend Lease representatives on 4 March 2014 where manual handling was not raised as an issue. Mr Hackett’s evidence that he had previously discussed manual handling issues with workers was not convincing given his answers to questions in cross examination which essentially were to the effect of what he “would” have done, rather than what he actually did.
Second, on return to the work site office, his evidence was that he did not enter to participate in the discussion (between Mr Collier, Mr Sloane, and Mr Clothier), but waited outside for about half an hour (possibly longer on other evidence be gave) smoking cigarettes. This provides some context for the consideration below as to the circumstances surrounding the various conversations with BKH workers, which on the evidence, Mr Hackett and Mr Collier (and various ABCC witnesses) said occurred between Mr Collier and the BKH employees. (See further below).
Mr Collier’s Evidence
Mr Luke Collier also provided an affidavit, dated 21 March 2017, in these proceedings.
Mr Collier’s evidence is that on 4 March 2014 he attended the site, with others, in response to complaints made by workers to the union about “poor access and egress”.
After completing his safety walk on that day, he received a telephone call from a BKH worker, whose name he could not remember, who raised concerns about manual handling and safety.
He and Mr Sloane returned to the site shortly before 8:00am on 5 March 2014. He does not dispute (other than as to time) Mr Clothier’s evidence that a conversation took place with Mr Clothier where the reason for the visit was discussed (at the front gate).
His affidavit evidence was that on entering the site, he was not asked by Lend Lease or BKH for his entry permits. It was not until the police asked him later that he realised he had left his Fair Work Commission right of entry permit in the car.
He signed the site book and went to the site office on arrival. His evidence was that he did not recall seeing any induction documents where he had “signed in”.
Either he or Mr Sloane asked to see records of manual handling training. Mr O’Sullivan arranged for BKH’s SWMS’s to be brought to the office.
When he and Mr Sloane looked at the documents, he formed the view that the documents by BKH did not adequately address manual handling concerns. Either he or Mr Sloane asked to see the training records. Mr Clothier stated he needed 24 hours to provide these records.
Mr Collier’s evidence then is that there were two hours of discussion, and there was no prospect of BKH “showing them the training records”. He then decided to do a safety walk, and communicated this to Mr Clothier.
I note here with reference to [25] and [27] of his affidavit, Mr Collier did not provide a satisfactory explanation (either in his affidavit or in examination before the Court) for his evidence that in spite of Mr Clothier’s statement (that it would take 24 hours to provide the documents) he formed the view there was “no prospect” of getting the documents. (See further below).
He and Mr Sloane left the site office and met Mr Hackett outside the site office. He described Mr Hackett as the “Health and Safety Representative”. Mr Clothier and Mr Barker followed them.
Mr Collier’s affidavit sets out an exchange between him and Mr Clothier to the effect that Mr Clothier asked them to leave or else the police would be called. Mr Collier says his response was that they had a right to be there.
On the evidence Mr Collier embarked on the walk, unreasonably in the circumstances, and led the walk (with Mr Sloane). Mr Hackett for the most part was with him in a group, but on occasion was at some distance such that it could not be said that he accompanied Mr Collier “always”, (with reference to the second dot point at VIf), or that Mr Collier stayed “within the group” (with reference to the seventh dot point of VIf). In short, on occasion he did “wander off” (the second dot point).
Mr Collier also submitted that he was accompanied by Mr Clothier around the site. I agree with ABCC’s submissions that, on the evidence, Mr Clothier, and for that matter Mr Barker and Mr Little, did not accompany Mr Collier, but were some distance behind him. (See Mr Hackett’s evidence at [60] and Mr Collier’s at T161 line 7 – 17). Nor on the evidence can it be said that at all times on Mr Collier’s walk at least one of those three, or a combination of them, was close enough to him over the whole period of the walk to say that he was accompanied by an employee of Lend Lease at all times.
To describe it benignly, Mr Collier had a level of indifference to acting reasonably, or in complying with relevant and reasonable safety requirements.
I should note for the sake of completeness, and as set out above, various witnesses gave evidence about whether Mr Collier had shown the relevant entry permits when entering the site. Mr Barr gave evidence that Mr Clothier told Mr Collier that he had come onto the site without: “…showing both your permits”. (See at [165] above). Yet Mr Clothier’s evidence was that Mr Collier had shown the relevant permit to come onto the site to investigate a WHS issue. (See [117] above).
The evidence of Mr Clothier on cross-examination is to be preferred to that of Mr Barr, particularly as it relates to what Mr Clothier saw. In any event, I note further that on the evidence, Mr Collier was not required to show the permits unless asked to do so. In this light, no reliance is placed on the entry permit issue in finding that Mr Collier contravened s.499 of the Act.
In all, I find that Mr Collier did breach or contravene s.499 of the Act on 5 March 2014. It is appropriate to make the Declaration sought by ABCC at [1] of its application.
The Alleged Contravention: s.500 of the Act
The SOC also asserts that Mr Collier breached s.500 of the Act. It was at the relevant times in the following terms:
500Permit holder must not hinder or obstruct
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.
Note 1: This section is a civil remedy provision (see Part 4‑1).
Note 2: A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.
Note 3: A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).
ABCC’s claim is made in two alternative parts. The first is concerned with “hinder or obstruct” as that term appears in s.500 of the Act. The second is “act in an improper manner” as that term also appears in s.500 of the Act.
ABCC’s argument is as follows. While on the walk on the site on 5 March 2014 Mr Collier variously spoke to BKH employees who were working on the site. He directed them to stop work. He was not authorised by the Act or the WHS Act to direct the cessation of work. As a result of Mr Collier’s action some workers did stop working and the progress of the work was slowed down. Mr Collier’s conduct was deliberate, in the sense also of intentional, and hindered, or in the alternative, obstructed, the work of BKH, Lend Lease, and their employees and contractors.
There was no dispute between the parties that Mr Collier met two of the elements for a breach of s.500 to be made out. He was a permit holder who was exercising a State OHS right.
Nor did Mr Collier dispute that while on the safety walk he spoke to workers. The dispute however is whether he directed them to stop work.
While the parties made submissions on the meaning of, and what may constitute, “intentionally hinder or obstruct” or “act in an improper manner”, it is not necessary to further consider this for the purposes of the disposition of ABCC’s claim.
If Mr Collier’s evidence is to be accepted, that is, he spoke to workers, but only to exchange pleasantries, then this would be seen as a trivial act which could not reasonably be seen as an obstruction or interference in the work. (Darlaston v Parker (2010) 189 FCR 1 at [52]).
Nor, on an objective basis (Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106]), can it be said that if all that Mr Collier did was to exchange pleasantries and the like, that this would be sufficient to find he acted in an improper manner. Such conduct cannot be said, in the circumstances of walking around the site and only greeting workers to be below the standard required of a responsible union official (see Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668 at [97]).
In short, for ABCC to make out the claim that Mr Collier breached s.500, in both the alternatives pressed, the Court would need to be satisfied, and it must be stressed, to the necessary standard, that Mr Collier did in fact direct workers to cease work. To avoid doubt, I note that ABCC based its case in relation to this alleged contravention on the proposition that Mr Collier (himself), variously, told workers to stop work.
To make good its claim, ABCC referred to the following evidence: Mr Barker at RMB-1 at [28] and [34], Mr Clothier at MOC-1 at [39], and Mr Little at KDL-1 at [47] – [48].
In his statement Mr Barker’s evidence was that Mr Collier, Mr Sloane, and Mr Hackett (“in tow”) approached workers at various locations of the site. On one occasion his evidence was he “could not hear what they were discussing with the workers” ([28] RMB-1).
Further, as set out above, on another occasion his evidence was that Mr Collier told workers to “down tools”, and at a third location told workers to stop work.
In cross examination Mr Barker confirmed that he could not hear what was said at the first location (T 51 at line 29 – 31). As to the other occasions, and other locations, he could not recall whether Mr Hackett, Mr Sloane, or Mr Collier, told workers to stop working (T 51 at line 36 – line 47, and T 35 line 36 to T 36 line 22).
As set out above ABCC made submissions that given the vagaries of memory and recall, weight should be given to the written statements drafted soon after the events of 5 March 2014, in contrast to evidence given some years later.
As a general proposition, there is great strength in that argument. However Mr Barker’s evidence in cross examination cannot be ignored. As set out above, the evidence before the Court, which I have accepted, was that the work of the site was loud and noisy. This was also the situation in the location which Mr Barker describes in his statement as “Basement 3”.
His evidence in cross examination was clear that he could not recall whether it was Mr Collier or Mr Sloane, or for that matter Mr Hackett (“I don’t believe it was Mr Hackett” – T 51 line 45 to T 52 line 10). This should also be understood in light of his evidence that while he was behind Mr Collier, Mr Sloane and Mr Hackett, he could not hear what they were saying (T 51, line 29 – line 31). I accept in assessing Mr Barker’s evidence, his inability to recall what specifically occurred is not evidence that Mr Collier did not say what he is alleged to have said. Simply after the passage of time Mr Barker could not remember relevant, but important, detail.
However, it must be said that Mr Barker’s demonstrated uncertainty during cross examination is at odds with the great certainty evident in his statement of 11 March 2014. That Mr Barker could not recall who gave the direction to cease work, when there were really only three options (Mr Collier, Mr Sloane, Mr Hackett) and one of whom Mr Barker said he did not think gave the direction (Mr Hackett), is of concern.
The central, and critical, issue here is one of simple fact. Did Mr Collier utter the words as claimed by ABCC, or did he not? That is not a matter of great factual complexity. That Mr Barker could not recall such a simple, yet critical fact (even with the passage of time), results in such a level of uncertainty, that in light of the relevant standard, I cannot rely on Mr Barker’s written statement to find that Mr Collier told workers to stop work.
It is the case that there were difficulties with Mr Hackett’s evidence to the Court. But his evidence that he told workers to cease work, and not Mr Collier, survived generally unscathed. While there was some specific difficulty with Mr Collier’s evidence arising from his having, ultimately conceded that he spoke to BKH workers about training, his evidence that he did not tell them to stop work was clear.
In contrast the evidence of ABCC’s witnesses, on cross examination on this point, was not as clear.
Mr Barker’s inability to recall the answer to this question in cross examination is not, in the circumstances, satisfactorily explained merely by the passage of time, particularly in circumstances where he had the opportunity to refresh his memory. On his own evidence he did so on 13 July 2015, when he made his affidavit, on which he was cross-examined. At that time he swore that what was in his statement of 11 March 2014, that is, what he said in the statement about what Mr Collier said, was “true and correct”. (See his affidavit at [5]).
It is possible that Mr Collier did tell workers to cease work. But the Court can only proceed on the state of the evidence before it, and as that evidence is presented. Mr Barker’s evidence under cross examination, on this point, and in the circumstances, casts sufficient doubt on his earlier written statement, such that Mr Barker’s written statement, when viewed also in light of Mr Collier’s, and even Mr Hackett’s, evidence, is reduced in reliability, and the degree of weight that can safely be attached to it on this critical point. (Noting also the relevant evidentiary standard to be applied).
It is at least equally possible that Mr Collier did not tell workers to cease work and that Mr Hackett did, as their evidence asserts. Mr Collier was clearly the dominant personality as between himself and Mr Hackett, and it is quite feasible that Mr Hackett uttered the words, and gave the direction, as alleged because he felt this was what Mr Collier wanted him to do.
Further, there is one additional important difference between Mr Barker’s written statement and his oral evidence before the Court. Even though his written statement asserts that he was informed that it may be used in Court proceedings (see at [2]), that statement was not given under oath (or affirmation).
His oral evidence before the Court was so given. It cannot be ignored that when put to the test Mr Barker was neither convincing, nor persuasive, in his evidence on whether Mr Collier uttered the words as alleged.
Ultimately Mr Barker’s (I accept honest) evidence, given under oath, albeit at some time after the relevant event, is in the circumstances to be preferred to his written statement, which although contemporaneous to the relevant events, he was unable to confirm.
In short, on the evidence, and bearing in mind the relevant standard, I find that Mr Barker’s evidence does not support the claim as made by ABCC that Mr Collier told workers to cease work.
Mr Clothier’s evidence, relevant to this matter, in his statement and his affidavit, was at its highest, that while he saw Mr Collier (in company with Mr Sloane and Mr Hackett) talking to workers, and then some workers stopped working, he: “…Cannot recall exactly what he [Collier] was saying to them”. ([11] of the first affidavit by Mr Clothier).
Relevant to a different location, Mr Clothier’s evidence was that he: “…formed the opinion that Collier was telling the BKH workers to stop work…”. (At [13] of his first affidavit).
At its highest, Mr Clothier’s evidence was that he could not hear what Mr Collier said, and he formed the view the workers were told to stop work by Mr Collier because they did stop work and he was doing most of the talking (as opposed to Mr Sloane or Mr Hackett).
In cross examination Mr Clothier agreed he did not hear what Mr Collier said to the workers, but formed the view that he told them to stop work because: “…The body language and pointing to the sheds and yelling out and that…” (T 36, lines 7 – 8).
Further, and importantly, that while workers told him that they were told to stop work, he could not be sure who told them to do this (T 35, line 45 to T 36, line 1).
Mr Clothier’s evidence that he formed the view that it was Mr Collier who told them to stop work, based on his observation, was weakened by his evidence: “… As I say, Mr Collier was the only one in the area where the workers were, so…” (T 36, lines 17 – 18). This evidence related to when Mr Collier was in the basement area where BKH workers were working. ([39] of Mr Clothier’s statement, and see [13] of his first affidavit).
The evidence otherwise before the Court was that to varying degrees of distance, Mr Sloane and Mr Hackett were, as Mr Clothier subsequently conceded in cross examination: “… All in the vicinity…” (T 36, line 21).
Mr Little’s evidence in his statement was (at [46] – [47]):
“46. Collier and Sloane started approaching the BKH employees directly. The BKH General Manager Dermot O’Sullivan (‘O’Sullivan’) and the Baulderstone CFMEU Delegate Dean Hackett (‘Hackett’) was now present with us. Hackett is also one of the Health and Safety Representatives (‘HSR’) for the site.
47. I was standing near Collier and heard him talking with a group of about ten BKH employees.”
It was not clear from Mr Little’s statement where this was said to have occurred, although in context, it appears it may have been in the earlier part of the safety walk. On a later occasion as they were heading towards the “northern end of the site”, he says he saw Mr Collier again speak to workers, but did not hear what was said ([49] – [50] of the statement).
In cross examination Mr Little confirmed that he did not hear what was said at the northern end of the site. (T 42, lines 20 – 21). Again, as with Mr Clothier, he assumed that Mr Collier told them to stop work because some did so. Nor could he deny that they did stop work so that they could go for a smoko (T 42, line 28).
That leaves Mr Little’s evidence in his statement concerning when he says (at [46] – [47]) Mr Collier “started approaching BKH employees directly…” (at [46]).
Before the Court, Mr Little’s evidence was (at 20 March 2017), T 50, Lines 7 – 10:
“Okay. And I want you to tell me, as best you can – don’t look at your statement for the moment – just tell me as best you can what Mr Collier said to the BKH workers when you were there with him?---I – I don’t have a good enough recollection of what he said to the BKH workers without reading my statement.”
Again, as with Mr Barker, he appears to have had the same difficulty in cross examination in giving the evidence with the apparent certainty demonstrated in the written statement. As with Mr Barker, Mr Little also had the opportunity to refresh his memory. (See [7] of his affidavit).
For similar reasons as set out above in relation to Mr Barker, and in similar circumstances, I give weight to Mr Little’s evidence under oath. At its highest that evidence is that in one instance he could not recall what Mr Collier said to workers, and he could not hear what was said in the other instance.
I must agree with Mr Collier that on the evidence I cannot, and do not, find (given Briginshaw) that ABCC has made out the claims and allegations that Mr Collier told workers to cease work. On this basis, the factual foundation for the allegation of a breach of s.500 is not made out. I decline to make the Declarations against Mr Collier as sought in [2] and [3] of the application.
The Alleged Contravention: Section 503(1) of the Act
The SOC also claims that Mr Collier breached s.503(1) of the Act. It was at the relevant time in the following terms:
503 Misrepresentations about things authorised by this Part
(1) A person must not take action:
(a) with the intention of giving the impression; or
(b) reckless as to whether the impression is given;
that the doing of a thing is authorised by this Part if it is not so authorised.
Note: This subsection is a civil remedy provision (see Part 4‑1).
In essence ABCC’s claim here is that Mr Collier knew he was not authorised to direct workers to cease work, yet he did so. This was said to be a deliberate act and done with the intention of giving the impression that he was authorised to so direct the workers. In the alternative, the assertion is that Mr Collier’s conduct was reckless as to whether he gave that impression.
ABCC’s submissions were that the evidence of the intention, and of the claimed recklessness, is to be found in the conversations Mr Collier was said to have had with the BKH employees and where he is said to have told them to cease work.
For the reasons set out above, I have found that while Mr Collier did variously talk to BKH workers, I cannot be satisfied, and ABCC has not proved to the standard required, that he told or directed workers to cease work. The evidence therefore does not support the contention that he contravened s.503(1). I decline to make the Declaration in relation to Mr Collier as sought in [4] of the application.
Conclusion
In all, therefore, I will make the Declaration as sought at [1] of the application. I will hear further from the parties as to whether that Declaration should be made in relation to the second and third respondents. Further, as to whether a civil pecuniary penalty should be imposed on Mr Collier for that contravention.
As to [2] – [4] of the application, as it relates to Mr Collier, no Declarations are to be made. That part of the application as it relates to Mr Collier is to be otherwise dismissed.
I certify that the preceding four hundred and fifty-six (456) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 18 March 2019
Schedule 1
| Affidavit | Part | Objection | Disposition |
| Matthew Barr, Assistant Director & Fair Work Building Industry Inspector, made on 14 July 2015 | [10] from “believe” onwards | Opinion (s.76 of the Evidence Act 1995 (Cth) (“the EA”) | Not admitted. |
| Annexure “MB1” | Hearsay (s.59 of the EA) | Admitted pursuant to s.60 of the EA. | |
| Annexure “MB1” [28] | Form | Admitted on the basis the parties will make submissions on the weight of [28]. | |
| Barry Finbarr Murphy, Project Director, made on 21 July 2015 | Annexure “BFM1” | Relevance (s.55 of the EA) | Not admitted (evidence was not pressed on the basis that the respondents do not attempt to lead evidence as to what occurred, or did not occur, on 4 March 2014). |
| Annexure “BFM1” [13], last sentence | Form | ||
| Annexure “BFM1” [14] | Opinion (s.79 of the EA) | ||
| Annexure “BFM1” [20] – [21] | Form | ||
| Annexure “BFM1” [22], last sentence | Form | ||
| Annexure “BFM1” [23] | Form | ||
| Annexure “BFM1” [49] | Form | Admitted on the basis that the applicant has leave to call oral evidence in relation to [49]. | |
| Annexure “BFM1” [51] | Form | Admitted. | |
| Annexure “BFM1” [52], [54] (except for second sentence of [54]), [61], [63], [66], [67], [98] | Form | Admitted (objection not pressed). | |
| Annexure “BFM1” “BM-002” | Form, hearsay, opinion (ss.59, 76 of the EA) | Admitted pursuant to s.60 of the EA. | |
| Barry Finbarr Murphy, Project Director, made on 6 February 2018 (Second Affidavit) | [9] | Opinion (s.76 of the EA) | Admitted (objection not pressed). |
| [10] | Opinion (s.76 of the EA) | Admitted (objection not pressed). | |
| [11] | Opinion (s.76 of the EA) | Admitted (objection not pressed). | |
| [13] (a) | Opinion (s.76 of the EA) | Not admitted. | |
| [13] (b) – (c) | Opinion (s.76 of the EA) | Admitted. | |
| [14] | Opinion (s.76 of the EA) | Admitted (objection not pressed). | |
| [15] | Opinion (s.76 of the EA) | Admitted (objection not pressed). | |
| [17] first sentence | Opinion (s.76 of the EA) | Admitted (objection not pressed). | |
| [17] from “He was not a “nominated BPL inducted staff member”…within the meaning of the WHS Management Plan or the Visitor Induction” | Opinion (s.76 of the EA) | Not admitted. | |
| [18] last sentence | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Kieron Dominic Little, Construction Manager, made on 17 July 2015 | Annexure “KDL1” | Relevance (s.55 of the EA) | Not admitted (evidence was not pressed on the basis that the respondents do not attempt to lead evidence as to what occurred, or did not occur, on 4 March 2014). |
| Annexure “KDL1” [13] – [15] | Form | ||
| Annexure “KDL1” [16], second sentence | Opinion (s.76 of the EA) | ||
| Annexure “KDL1” [17] | Form | ||
| Annexure “KDL1” [20], to the word “minor” | Opinion (s.76 of the EA) | ||
| Annexure “KDL1” [21] | Form | ||
| Annexure “KDL1” [22], [23] | Opinion (s.76 of the EA) | ||
| Annexure “KDL1” [25], the word “minor” | Opinion (s.76 of the EA) | ||
| Annexure “KDL1” [27] | Form | ||
| Annexure “KDL1” [31] | Form | Admitted (objection not pressed). | |
| Annexure “KDL1” [33], last sentence | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “KDL1” [34] | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “KDL1” [44], last sentence. | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “KDL1” [45], last sentence. | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “KDL1” [54] | Form | Second sentence not admitted (evidence not pressed). Remainder of paragraph admitted. | |
| Annexure “KDL1” [55] | Form | Not admitted (evidence not pressed). | |
| Annexure “KDL1” [63] | Form | Admitted. | |
| Annexure “KDL1” [74] | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “KDL1” | Relevance (s.55 of the EA) | Not admitted (evidence was not pressed on the basis that the respondents do not attempt to lead evidence as to what occurred or did not occur on 4 March 2014). | |
| Annexure “KDL1” “KL-02”, page 1 | Relevance (s.55 of the EA) | ||
| Annexure “KDL1” | Form, hearsay, opinion (ss.59, 76 of the EA) | Admitted pursuant to s.60 of the EA. | |
Kevin Joseph Maher, Industrial Relations Manager, made on 15 July 2015 | Annexure “KJM1” [10] | Form | Admitted (objection not pressed). |
| Annexure “KJM1” [32] | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Mark Lanigan-O’Keeffe, (no occupation stated), made on 17 July 2015 | [7], last sentence | Form, Opinion (s.76 of the EA) | Not admitted (evidence not pressed). |
| Annexure “MLO-1” | Form, Hearsay, Opinion (ss.59, 76 of the EA) | Admitted pursuant to s.60 of the EA. | |
| Dermot O’Sullivan, General Manager, made on 15 July 2015 | Annexure “DO1” [35] | Form | Admitted (objection not pressed). |
| Annexure “DO1” | Form | Admitted on the basis that the applicant has leave to call oral evidence in relation to | |
| Annexure “DO1” [52] | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “DO1” [75], last sentence | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “DO1” [76], last sentence | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Ross Murray Barker, Safety Manager, made on 15 July 2015 | Annexure “RMB1” | Relevance (s.55 of the EA) | Not admitted (evidence was not pressed on the basis that the respondents do not attempt to lead evidence as to what occurred, or did not occur, on 4 March 2014). |
| Annexure “RMB1” [14], third and fourth sentences | Opinion (s.76 of the EA) | ||
| Annexure “RMB1” [14], fifth and eighth sentences | Form | ||
| Annexure “RMB1” [15], [16], [17] | Form | ||
| Annexure “RMB1” [18] | Form, opinion (s.76 of the EA) | ||
| Annexure “RMB1” [19] | Form | ||
| Annexure “RMB1” [25], first sentence | Form | Not admitted (evidence not pressed). | |
| Annexure “RMB1” [25], [fifth] sentence from “it was apparent…by LLE” | Opinion (s.76 of the EA) | Admitted (objection not pressed). | |
| Annexure “RMB1”, [25], seventh sentence from “it is usual practice...while on site.” | Opinion, Hearsay (ss.76, 59 of the EA) | Admitted (objection not pressed). | |
| Annexure “RMB1” [25], eighth sentence, to the words “and tried to reason with them” | Form | The words “and tried to reason with them” not admitted (evidence not pressed). | |
| Annexure “RMB1”, [27], second sentence from “On each occasion… to comply.” | Form | Admitted (objection not pressed). | |
| Annexure “RMB1”, [28] to the words “They didn't understand what was going on.” | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “RMB1” [28], subparagraph beginning “Collier did not say anything” to the words “The workers stopped work…and didn’t know what to do”(the second and third sentences of that subparagraph) | Opinion (s.76 of the EA) | Not admitted, except for the words “the workers stopped work” (evidence in remainder of the subparagraph was not pressed. The objection to the words “the workers stopped work” was not pressed). | |
| Annexure “RMB1” [28], last sentence, “The steelfixers…and continued to work.” | Form | Not admitted (evidence not pressed). | |
| Annexure “RMB1” [38], [third] sentence “The work was disrupted…organiser’s actions.” | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “RMB1” “RB-2” | Form, hearsay, opinion (ss.59, 76 of the EA) | Admitted pursuant to s.60 of the EA. | |
| Matthew Owen Clothier, General Superintendent, made on 17 July 2015 457. 458. | Annexure “MOC1” | Relevance (s.55 of the EA) | Not admitted (evidence was not pressed on the basis that the respondents do not attempt to lead evidence as to what occurred or did not occur on 4 March 2014). |
| Annexure “MOC1” [27] | Form | Not admitted (evidence not pressed). | |
| Annexure “MOC1” [28], [fourth] sentence, “by signing in…by the visitor’s induction.” | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “MOC1” [29] | Opinion (s.76 of the EA) | Admitted. | |
| Annexure “MOC1” [31] | Form | Not admitted (evidence not pressed). | |
| Annexure “MOC1” [32] | Form | Admitted (objection not pressed). | |
| Annexure “MOC1” [35], to the words “unescorted in breach of the OHS requirements of the site visitor’s induction.” | Opinion (s.76 of the EA) | The word “unescorted” admitted. The words “in breach of” not admitted. | |
| Annexure “MOC1” [38] | Form, hearsay (s.59 of the EA) | Admitted on the basis that the applicant has leave to lead oral evidence on [38]. | |
| Annexure “MOC1” [39], final sentence | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “MOC1” [42], final sentence | Form | Not admitted (evidence not pressed). | |
| Annexure “MOC1” [48] | Form | Admitted (objection not pressed). | |
| Annexure “MOC1” [50] | Form | Admitted (objection not pressed). | |
| Annexure “MOC1” [51], second sentence | Opinion (s.76 of the EA) | Admitted (objection not pressed). | |
| Annexure “MOC1” “MC/01” | Form, hearsay, opinion (ss.59,76 of the EA) | Admitted pursuant to s.60 of the EA. | |
| Matthew Owen Clothier, General Superintendent, made on 24 January 2018 (Second Affidavit) | [9] | Opinion | Admitted (objection not pressed). |
| [11] | Opinion | Admitted. | |
| [12] | Opinion | Admitted. | |
| [18] | Opinion | Admitted. | |
| [19] | Opinion | Not admitted. | |
| [23] Second last sentence, “However, because no work was being undertaken…were not required to accompany visitors on the Project.” | Opinion (s. 76 of the EA) | Admitted. | |
| [23] last sentence, “I do not recall if Mr Hackett was present on family day.” | Opinion | Admitted (objection withdrawn). | |
| [24] | Opinion | Admitted. | |
| Dean Hackett, Health and Safety Representative of Lend Lease Engineering Pty Ltd, made on 21 March 2017 | Admitted. | ||
| Luke Collier, Organiser employed by the Construction, Forestry, Energy and Mining Union (NSW Branch), made on 21 March 2017 | [7]-[11] | Not read. |
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