Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case)
[2021] FCA 920
•10 August 2021
FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) [2021] FCA 920
File number: NSD 2057 of 2019 Judgment of: KATZMANN J Date of judgment: 10 August 2021 Catchwords: INDUSTRIAL LAW — where union officials who held entry permits entered a building site to inquire into suspected contraventions of work health and safety laws, whether officials contravened s 497 of the Fair Work Act 2009 (Cth) (FW Act) by failing to produce their entry permits for inspection when requested to do so — where concrete pour scheduled for completion, whether actions of union officials interfered with the concrete pour and the union officials intentionally hindered or obstructed certain persons or otherwise acted in an improper manner contrary to s 500 of the FW Act — whether the conduct of one union official also contravened s 503 of the FW Act —where the union officials raised concerns about the safety of the concrete pour, and allegedly insisted it stop and stood on the internal roadway thereby preventing concrete trucks from entering, whether they organised or engaged in an unlawful picket under s 47 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) — whether raising concerns about safety matters constitutes advancing claims against the principal contractor in respect of its employment of employees or engagement of contractors within the meaning of s 47(2)(b)(i) of the BCIIP Act —whether union liable for the conduct of its officials Legislation: Acts Interpretation Act 1901 (Cth) ss 2C, 15AA
Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 4, 6, 21, 47, 57, 66, 94, 111
Evidence Act 1995 (Cth) ss 59, 60, 140
Fair Work Act 2009 (Cth) ss 12, 478, 494, 497, 500, 503, 512, 539, 550, 793
Fair Work (Registered Organisations) Act 2009 (Cth) ss 26, 27
Fair Work Regulations 2009 (Cth) reg 3.25
Work Health and Safety Act 2011 (NSW) ss 4, 17, 18, 19, 116, 117, 119, 124, 125, 126, 127, 128, 131, 132
Explanatory Memorandum, Building and Construction Industry (Improving Productivity) Bill 2013 (Cth)
Explanatory Memorandum, Fair Work Bill 2008 (Cth)
Australian Law Reform Commission, Evidence (Interim), (Report No 26, ALRC, 1985)
Macquarie Dictionary (17th ed, Macquarie, 2017)
Oxford English Dictionary (online)
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 197
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) (2018) 258 FCR 158
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 252 FCR 198
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) [2018] FCA 1698; 283 IR 338
Australian Building and Construction Commissioner v Gava [2018] FCA 1480
Australian Building and Construction Commissioner v Huddy [2017] FCA 739
Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393
Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847; 270 IR 190
Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [1998] FCA 321; 81 IR 15
BGC POS Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 74; 285 IR 43
Briginshaw v Briginshaw (1938) 60 CLR 336
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203; 302 IR 106
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298
Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88
Darlaston v Parker (2010) 189 FCR 1
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463
Director of theFair Work Building Industry Inspectorate v Bragdon [2015] FCA 668; 147 ALD 373
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2016] FCA 872
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293
Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338
Employment Advocate v Williamson (2001) 111 FCR 20
Giorgianni v The Queen (1985) 156 CLR 473
Jones v Dunkel (1959) 101 CLR 298
Lee v The Queen (1998) 195 CLR 594
Naismith v McGovern (1953) 90 CLR 336
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Burns (1995) 183 CLR 501
R v Tannous (1987) 10 NSWLR 303
Setka v Gregor (No 2) (2011) 195 FCR 203
Solutions 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 60 NSWLR 558
Welsh v R (1996) 90 A Crim R 364
Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223; 179 IR 44
Yorke v Lucas (1985) 158 CLR 661
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 417 Date of last submission/s: 23 November 2020 Date of hearing: 29 September–1 October 2020; 9–10, 23 November 2020 Counsel for the Applicant: Mr M White SC with Ms P Bindon Solicitor for the Applicant: Australian Government Solicitor Counsel for the First Respondent: Mr S Crawshaw SC Counsel for the Second, Third and Fourth Respondents: Mr I Latham Solicitor for the Respondents: Taylor & Scott Lawyers ORDERS
NSD 2057 of 2019 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
GERASIMOS DANALIS
Second Respondent
ANTHONY DIMITRIOU (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
KATZMANN J
DATE OF ORDER:
10 AUGUST 2021
THE COURT ORDERS THAT:
1.Within 14 days of these orders, the parties agree on the appropriate form of declaratory relief to reflect these reasons.
2.The matter be listed for further case management at 9.30 am on 6 September 2021.
3.Liberty be granted to apply on three (3) days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KATZMANN J:
INTRODUCTION
This case is concerned with the conduct of union officials over two days at a Kiama building site under the control of Richard Crookes Constructions Pty Ltd. The Australian Building and Construction Commissioner alleges that by reason of that conduct those officials and the union itself — the Construction, Forestry, Maritime, Mining and Energy Union (the Union) — contravened both the Fair Work Act 2009 (Cth) (FW Act) and the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act).
The Commissioner’s case, in short, is this.
On 27 November 2018 the union officials — Gerasimos (known as Maki) Danalis, Anthony Dimitriou and Anthony Burke — attended the site purportedly due to concerns about access and egress on the site. While there, all three interfered with a concrete pour scheduled for completion that day. In so doing, they intentionally obstructed various people, hindered others, and/or otherwise acted in an improper manner in contravention of s 500 of the FW Act. Alternatively, Dimitriou and Burke were accessories to contraventions committed by Danalis. Further, by threatening to stop the concrete pour and obstructing the concrete trucks Danalis organised or engaged in an unlawful picket at the site and Dimitriou and Burke engaged in that “picket” in contravention of s 47 of the BCIIP Act.
Danalis informed two of the concrete truck drivers and representatives of the local council that the site was unsafe and would be shut down for safety reasons, with the intention of giving the impression that the union officials were authorised to take the action or reckless as to whether the impression was given, when they were not so authorised, in contravention of s 503 of the FW Act.
The following day Danalis and Dimitriou returned to the site unexpectedly and complained that people were working in the rain. They were required to undergo a visitors’ induction before embarking on an inspection but refused and entered the site unaccompanied in breach of their entry permits. They approached some workers and told them to “pack up” and leave the site. In so doing, they contravened s 500 of the FW Act by preventing Crookes and its employees from performing work scheduled to take place that day or otherwise acting in an improper manner.
On both days the union officials failed to produce their entry permits for inspection when asked, in contravention of s 497 of the FW Act.
The Union was liable for the officials’ conduct, pursuant to ss 550 and 793 of the FW Act or s 94 of the BCIIP Act as the case may be.
The facts relevant to the various alleged contraventions often overlap. This means that some degree of repetition is unavoidable.
THE WITNESSES
Nine witnesses gave evidence for the Commissioner.
The first was Colm Thomas. He was followed by Kain Sissons, Daniel McGrath, Shannon Murray, Brian Evans, John Patton, Tomas Rees, Kerry McMurray, and Shane Martin. All but Mr Patton gave signed statements to the Commissioner within a month or so of the events in question. Save in Mr McGrath’s case, these statements were annexed to their affidavits. All the deponents were cross‑examined.
I had the impression that all of the Commissioner’s witnesses, except for Thomas, were doing their best to assist the Court. But there were differences in their recollections.
Colm Thomas was contracted by Crookes as a site manager. He was acquainted with Dimitriou and Danalis as they had previously been to the site exercising their rights of entry. He was present at the site on both 27 and 28 November 2018 and had a number of interactions with the union officials. The nature and content of those interactions was contentious. Under cross‑examination Thomas was evasive at times, particularly when questioned on safety issues at the site, and at times querulous.
Tomas Rees was employed by Crookes as a project manager for the site. He was a witness to the events of 27 November 2018.
Shane Martin was employed as a safety coordinator/advisor for Crookes. He was present at the site on both 27 and 28 November 2018.
By the time of the trial neither Rees nor Martin was employed by Crookes.
Kain Sissons was employed by Crookes as a project engineer at the site. He was a witness to some of the events on 27 November 2018 and gave evidence about the impact of stopping the concrete pour.
Shannon Murray was a traffic controller contracted by Crookes to work at the site. On both 27 and 28 November 2018, he was acting under Thomas’s direction.
Brian Evans and Daniel McGrath were concrete truck drivers employed by Boral Concrete who had driven their trucks to the site on 27 November 2018 but were unable to enter.
John Patton was an Assistant State Inspector with Safework NSW. On 28 November 2018, he attended the site at the request of Thomas to assess building access. He had also inspected the site about three weeks earlier.
Kerry McMurray was the General Manager of Kiama Municipal Council. He was in attendance at the site on 27 November 2018 for a weekly construction meeting and was a witness to some of the events that day.
At the time of the hearing Danalis was an industrial officer for the Health Services Union but in November 2018 he was employed by the Union as an organiser. When he worked for the Union, he was based in the Illawarra area, working out of the Wollongong office, including during November 2018. In his capacity as an organiser, he had attended the site on about 20 occasions before 27 November 2018. He had attended at least twice before Crookes began work there because of safety issues to do with asbestos on the site. His other visits occurred after Crookes had taken over. On many of these visits he was accompanied by Dimitriou, but at times he had attended on his own.
Danalis presented as an intelligent witness, who made reasonable concessions. Although I was urged to find that his presentation was, in effect, a charade, I did not come to that conclusion.
Dimitriou was an organiser employed by the Union, having started there in April 2018, and a carpenter and joiner by trade. He was generally based in the Illawarra and South Coast area, working out of the Wollongong office, including in November 2018 when Danalis was working there. He had been to the site at least a dozen times before November 2018, sometimes on his own, and sometimes with Danalis.
I found Dimitriou to be a generally honest witness. At times it appeared as if he did not fully grasp or understand the questioning. His recollection was patchy. The Commissioner suggested, in effect, that his memory was selective. There are a number of possible reasons why a witness has a better memory of some things than others. I was not persuaded that in his case the reason was a sinister one. My impression was that the problems with his recollection were a reflection of the subordinate and relatively minor role he played in the events in question.
Burke was also an organiser, employed by the Union since September 2017. He was based in the Union’s Pyrmont office, but occasionally visited regional areas to work with colleagues who were based there. In cross-examination, he explained that his role was to “look after the safety” on job sites in the areas allocated to him.
Burke was a most unsatisfactory witness. He displayed a smug and cavalier attitude during cross-examination. At times, he was argumentative and acted in a contemptuous manner towards the Commissioner’s counsel.
While there was a good deal of common ground, there were also significant differences between the parties’ witnesses about critical events. But there were also differences in the accounts given by the witnesses on each side of the controversy. Since the onus of proof lay with the Commissioner, the differences in the accounts of his witnesses was the focus of particular attention. As Mr Latham, counsel for the union officials, put it in his closing submissions, there were differences between the affidavit evidence and the oral testimony of a number of the Commissioner’s witnesses; differences between the evidence of the Commissioner’s witnesses and his pleadings; and differences between the accounts given by several of those witnesses. Some of the differences were of little moment. Others, however, were significant.
BACKGROUND FACTS
Unless otherwise indicated, the following findings are derived from the admissions in the pleadings, the statement of agreed facts, and the undisputed evidence.
The parties
The Commissioner is a statutory appointee of the Commonwealth, appointed by the Minister for Employment pursuant to s 21 of the BCIIP Act, and an Australian Building and Construction Inspector by force of s 66(3) of that Act, authorised to institute this proceeding by s 111 of the BCIIP Act and s 539, item 25 of the FW Act.
The Union is and was at all material times an organisation of employees registered under s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) (Registered Organisations Act), a “constitutionally-covered entity” and a “building association”, and therefore a “building industry participant”, within the meaning of s 5 of the BCIIP Act. It was also a “relevant union” within the meaning of s 116 of the Work Health and Safety Act 2011 (NSW) (WHS Act).
At all relevant times each of the union officials was an officer of the Union within the meaning of s 12 of the FW Act and, as the holder of an entry permit issued by the Fair Work Commission (FWC) under s 512 of the Act, a “permit holder” within the meaning of s 12. Each of the union officials was also the holder of a “WHS entry permit” within the meaning of s 4 of the WHS Act and therefore a “WHS entry permit holder” within the meaning of Pt 7 of the WHS Act. All of them were employees and members of the Union. Danalis and Burke were also union organisers.
The project and the site
The events the subject of the alleged contraventions occurred at 14a Boniara Street, Kiama, New South Wales, where a building complex was being constructed on behalf of the Kiama Municipal Council to house the Kiama Aged Care Centre of Excellence (the site). The site constituted “premises” for the purposes of Pt 3-4 of the FW Act, a “workplace” for the purposes of the WHS Act, and a “building site” within the meaning of s 5 of the BCIIP Act. The construction of the building complex (the project) was “building work” for the purposes of s 6 of the BCIIP Act.
Crookes was the principal contractor for the project and the occupier of the site for the purposes of Pt 3-4 of the FW Act. It engaged sub-contractors to perform work in connection with the construction of the project. It was a “constitutionally-covered entity”, a “building employer”, and a “building industry participant” within the meaning of s 5 of the BCIIP Act.
Patton inspected the site on 7 November 2018. He found no want of compliance with the requirements for safe access to, or egress from, building 8A. In his statement, which was annexed to his affidavit, Thomas said that “[n]o significant issues” were brought to Crookes’ attention as a result of this inspection. In cross-examination, however, he conceded that the contrary was true. At the same time, he denied that he had tried in his affidavit to downplay the significance of the safety issues, testifying that they had been rectified on the day of the inspection.
The events of 27 November 2018
The union officials arrived at the site mid-morning. They met Thomas at the site office. Either Danalis or Burke, but probably Danalis, informed Thomas that they wanted to do a safety walk as they had an issue with access and egress. Thomas knew Danalis and Dimitriou because they had been to the site previously exercising their rights of entry. But he did not know Burke. When he asked who Burke was, he was told that he was Anthony Burke of the Sydney office of the Union. At this point Thomas asked to see the permits of all three officials. There is a dispute about whether or not the permits were produced.
Danalis, Dimitriou and Burke signed the site attendance and emergency roll.
Thomas then arranged for the members of the site health and safety committee to gather for a safety walk.
Thomas, Rees, Martin and members of the health and safety committee escorted the union officials on a walk to inspect their areas of concern. The group made their way to level 1 of building 8A where workers were carrying out a pour of a concrete slab scheduled for completion that day. When they arrived there Burke raised three issues with the Crookes representatives: lack of two points of access and egress, inadequate signage, and the fact that some workers were not wearing safety glasses. The Crookes representatives accepted that some of the workers were not wearing their safety glasses but otherwise disagreed with Burke. Burke and Danalis also complained that people were working under the boom of the concrete pump. The Crookes representatives disagreed.
Burke told Rees that the workers should be taken off the deck and re-inducted. Rees and/or Thomas agreed to distribute safety glasses to the workers not wearing them and directed that the workers be re-inducted on the deck.
Sometime after 11.00 am, Danalis and Dimitriou walked down the stairs from level 1 and over to a concrete hopper and pump near the site office. Burke and members of the safety committee remained on the deck while the re-induction was conducted.
Danalis placed himself between the concrete hopper at the end of the pump and the concrete truck (the First Truck) to which it was attached.
Danalis said to Rees words to the following effect:
We have an issue with the concrete pump. The front left outrigger looks like it is sinking into the ground.
Rees told Danalis that Crookes had a geotechnical report in relation to the site of the concrete pump (the geotech report). At some point that day Rees gave some pages of the report to Danalis and Burke.
Rees gestured over to another concrete truck (the Second Truck) that was waiting at the gate. This was the truck driven by Evans. Danalis gestured with his right hand for the truck to stop. Evans was prevented from entering the site.
At no stage that day did the Second Truck or any more trucks, including the truck driven by McGrath (the Third Truck), enter the site.
At one stage during the conversations between Rees and Danalis, Danalis said words to the effect:
Why don’t you go and eat another hamburger fat boy?
At some stage during the conversations between Rees and Danalis, Rees requested Danalis to issue a relevant health and safety notice.
Sometime between 11.00 am and 11.30 am, a person added a wooden chock beneath the forward left hand outrigger foot of the concrete pump.
By 12 noon, the concrete pump hopper on the First Truck was shut and the pour was stopped.
At 12 noon, a set of stairs was moved by a Manitou machine from the rear of the site and at 12.30 pm or thereabouts the staircase was installed to provide secondary access to the deck.
By this time, the concrete pump had left the site.
The union officials left the site as the stairs were being installed and drove off for coffee. At a cafe they completed a Work, Health and Safety notice (WHS notice). At around 1.45 pm they returned to the site and gave one of the managers a copy of the WHS notice. They then left the site again.
The WHS notice was in the prescribed form and appears to have been signed by Danalis and Burke. It records that the officials entered the workplace under s 117 of the WHS Act and that they reasonably suspected that a contravention of the Act had occurred, or was occurring, at the site. They indicated by crosses placed inside boxes beside the following entries that the particulars of the suspected contraventions were:
·Access/Egress;
·Amenities/Water;
·Site security & Signage; and
·WHS duties.
Underneath, in handwriting, the following particulars were given:
No signage, no mud maps, no emergency access/egress, workers working under boom, no PPE –not working to SWMS [Safe Work Method Statement], front left leg of pump sinking in soft soil, other issues with pour.
As a result of the stoppage of the concrete pour, Crookes had to install a cold joint in the slab. Preparatory work was carried out between 12.30 and 1.45 pm. That included the installation of extra steel reinforcement.
The events of 28 November 2018
At about 7.35 am Patton attended the site at Thomas’s request to assess building access. Thomas showed him the WHS notice issued by the Union. Patton conducted an inspection of the scaffold and stretcher stair access to buildings 8A, 8B and 8C and decided access to all buildings was “good”, observing that each level had additional access between each building. He noticed a cold joint in the middle of the first floor slab level on building 8A indicating that the concrete pour had not been completed and a new joint had been created. After reviewing with Thomas s 19 of the WHS Act, cl 40 of the Work Health and Safety Regulation 2017 (NSW), and the Code of Practice on Managing the Work Environment and Facilities, Patton determined that the site access satisfied the relevant requirements.
Before entering the project site, each of Danalis and Dimitriou reasonably suspected that one or more contraventions of the WHS Act had occurred or were occurring. Each of them entered the site in exercise of, or seeking to exercise, his “State or Territory OHS right”, within the meaning of within the meaning of s 494(2) of the FW Act.
After he first encountered them on the site, Thomas asked Danalis and Dimitriou to produce their entry permits for inspection. Danalis and Dimitriou entered the site office and signed the site attendance and emergency roll. After Thomas had a conversation with Danalis, the pair left the site office.
At some stage Thomas caused all the gates to the site to be locked while Danalis and Dimitriou were still inside the site.
The union officials then gave Thomas another notice under s 117 of the WHS Act. The particulars of the suspected contraventions to which the notice was said to relate were identified as:
·Access/Egress;
·Electrical;
·General/Site/Task Induction; and
·WHS duties.
Additional particulars were:
Slips, trips, falls, water through leads on the ground; electrical cords [scil.] in puddles, [indecipherable] uncapped, men unloading trucks in rain without handrails, no safe access/egress.
PROOF
The burden of proving each element of the pleaded contraventions rests with the Commissioner. As this is a civil proceeding, the civil standard of proof on the balance of probabilities applies. That requires that the allegations be proved to the “reasonable satisfaction” of the Court: Briginshaw v Briginshaw(1938) 60 CLR 336 at 362 (Dixon J). The seriousness of an allegation, the inherent unlikelihood of a particular occurrence, and the gravity of the consequences which can flow from a finding will all affect the answer to the question of whether an allegation has been proved: Briginshaw at 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450; 67 ALJR 170 at 171. The Court is required to take into account these matters and the nature of the cause of action in deciding whether the burden of proof has been discharged: Evidence Act 1995 (Cth), s 140.
This is a civil suit for the recovery of pecuniary penalties. A proceeding of this kind is penal in nature: Naismith v McGovern (1953) 90 CLR 336 at 341 (Williams, Webb, Kitto and Taylor JJ). As Branson J observed in Employment Advocate v Williamson (2001) 111 FCR 20 at [67] in relation to contraventions of the Workplace Relations Act 1996 (Cth) (WR Act) (Kenny J agreeing at [108]):
[I]t is not regarded as proper, nor is it common, in Australian society for people to engage in conduct proscribed by an Act of Parliament. An allegation that someone has done so is ordinarily a grave allegation particularly where, if made out, the allegation could lead to the imposition of a significant penalty. For this reason, the strength of the evidence required to establish that an individual had, in his or her capacity as an officer or member of an industrial association, engaged in conduct of the kind proscribed … would be greater than the strength of evidence that would be required, whether in the same or in a different proceeding, to establish that a person had engaged in conduct of a kind that is not legally proscribed and that is engaged in regularly by people of good standing in the community.
In a case of this nature, “reasonable satisfaction” should not be reached through “inexact proof, indefinite testimony, or indirect inferences”: Briginshaw at 362.
THE ALLEGED CONTRAVENTIONS OF SECTION 497 OF THE FW ACT
The law
Section 497 of the FW Act provides that:
A permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer.
“Permit holder” is defined in s 12 of the Act to mean a person who holds an entry permit. An “entry permit” is a permit issued by the FWC, on application by an organisation, to an official of an organisation upon the FWC being satisfied that the official is a fit and proper person to hold the permit: FW Act, s 512.
“State or Territory OHS right” is defined in s 494(2) as a right to enter premises (or a right to inspect or otherwise access an employee record of an employee who is on premises) if the right is conferred by a State or Territory law and, relevantly, the premises are occupied by a constitutional corporation (see s 494(2)(a)(i)). A “State or Territory OHS law” is defined in s 494(3) to mean a law of a State or Territory prescribed by the Regulations. The WHS Act (together with its counterparts in other States and Territories) is a prescribed State or Territory OHS Law for s 494(3): Fair Work Regulations 2009 (Cth), reg 3.25. An official of an organisation must not exercise a “State or Territory OHS right” unless the official is a permit holder: FW Act, s 494(1).
The WHS Act confers an entitlement on a WHS entry permit holder to enter a workplace for the purpose of inquiring into a suspected contravention of the WHS Act that relates to, or affects, a worker who is, or is eligible to be, a member of the union represented by a WHS entry permit holder. Before entering the workplace, the WHS permit holder must “reasonably suspect that the contravention has occurred or is occurring”: WHS Act, s 117 read with s 116. And a WHS permit holder is prohibited from entering a workplace unless he or she also holds an entry permit under the FW Act or the Industrial Relations Act 1996 (NSW): WHS Act, s 124.
The rights that may be exercised at the workplace are set out in Divisions 2 and 3 of Pt 7 of the WHS Act.
As Tracey J observed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080 at [45], entry by a permit holder under s 117 is conditioned upon notice requirements (s 119), the permit holder also holding an entry permit under the FW Act (s 124(a)), and compliance with limits on the timing (usual working hours at the workplace) (s 126) and place of exercise of the right (the area of the workplace where the relevant workers work or any other work area that directly affects the health or safety of those workers) (s 127).
Section 118 relevantly provides:
(1)While at the workplace under [Division 2], the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act—
(a)inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention,
(b)consult with the relevant workers in relation to the suspected contravention,
(c)consult with the relevant person conducting a business or undertaking about the suspected contravention[.]
Section 119 requires the permit holder, as soon as reasonably practicable after entering a workplace, to give notice of the entry and suspected contravention to both the person conducting the business or undertaking and the person with management or control of the workplace unless it would defeat the purpose of the entry or, in an urgent case, unreasonably delay the permit holder.
Section 125 of the WHS Act requires a WHS entry permit holder at all times while present at a workplace under a right of entry under Division 2 or 3 of Part 7 of the Act to have his or her WHS entry permit and photographic identification available for inspection by any person on request.
Section 128 prohibits a WHS entry permit holder from exercising a right of entry to a workplace under Division 2 or 3 of Part 7 unless he or she complies with any reasonable request by the person conducting the business or undertaking or the person with management or control of the workplace to comply with any work health and safety requirement that applies to the workplace and any other legislated requirement applying to the type of workplace.
The allegations
The Commissioner alleged that on 27 November 2018 Crookes, through Thomas, requested each of the officials to produce his entry permit for inspection and each of them failed to do so. He also alleged that on 28 November 2018 Crookes, again through Thomas, made the same request of Danalis and Dimitriou and, once again, neither of them acceded to his request.
The issues
To establish the contravention of s 497 by each of the officials, it was necessary for the Commissioner to prove that:
(1)he was a permit holder;
(2)he was exercising a right of entry under the WHS Act;
(3)Thomas, as a representative of Crookes, asked him to produce his entry permit for inspection; and
(4)he failed to comply with the request by producing his permit.
None of the first three elements was in dispute. Each was admitted in the defences and was the subject of an agreed fact. Putting the liability of the Union to one side for the moment, the only factual issue was whether any or all of the officials failed to comply with the request made of him on either or both days.
Did the union officials contravene s 497 by failing to produce their entry permits for inspection?
Each of Burke and Danalis deposed to having shown Thomas their permits when requested to do so on 27 November 2018. In his affidavit Dimitriou said:
I had showed him my entry permit previously when he had asked, and although I do not now remember showing him my permit on 27 November 2018, it was my practice to do so whenever he asked.
In cross-examination they adhered to their evidence in chief. Danalis testified that he and Dimitriou showed their permits after Burke showed his. Burke agreed that he had said to Thomas: “Are we going to play that game, are we?” At the same time he insisted that he showed Thomas his permits. The two are not inconsistent. Dimitriou maintained that he did not remember whether Thomas had asked him that time but, had he asked, he would have shown him. The Commissioner submitted that Dimitriou’s answer was inconsistent with the agreed fact that Thomas asked to see the officials’ permits and his amended defence in which he admitted as much. But Dimitriou was not cross-examined on the supposed inconsistency. In the circumstances, I would infer that the admission was made either on the basis of what he had been told and accepted or on legal advice. If there is an inconsistency, it does not damage his credit. If anything, it reflects well upon it.
The Commissioner’s case rests almost entirely on Thomas’s evidence. I say almost because the Commissioner also relied on the fact that Burke did not mention in his affidavit that Danalis and Burke had shown their permits to Thomas.
In the statement he made to the Commissioner on 21 December 2018, which was annexed to his affidavit, Thomas said this about his request to the union officials on 27 November 2018 (without alteration):
7.At approximately 10:45-10:50 am three CFMEU officials Gerasiomos ‘Maki’ Danalis (Maki), Anthony Dimitriou (Anthony) and Anthony Bourke (Bourke) arrived on the KACCOE project site. I have previously met Maki and Anthony Dimitriou as they have been to this site previously exercising a right of entry. Although I had not met him previously, I now know the third official as Anthony Bourke.
8.The three union officials came into the site compound, marked on the map. I was sitting at my desk in view of the office door. After I finished typing on my computer, I rose and addressed the officials.
I said: “What’s the issue?”
Burke said: “We have an issue with access and egress.”
I said to the group of officials: “Who is this man?” I was referring to Burke.
Burke replied: “I am Anthony.”
I said to the group: “Can I see your permits?”
Burke said to me: “If I show my permit, I’ll have to act on it”.
I said: “I’m happy to do it”.
…
9.Maki and Dimitriou did not provide their permits. Burke however, did show a piece of paper but said “Are we playing that game?” He said this as he held what appeared to be a permit, but I was not permitted to inspect it.
It is true, as the Commissioner submitted, that Thomas was unshaken on this question in cross‑examination. He purported to have a clear recollection of the matters set out in para 9 of his statement.
Yet Thomas’s evidence was not only contradicted by the three officials but it was also contradicted by evidence from the Commissioner’s own witnesses.
In Rees’s statement, signed on 3 January 2019, which was annexed to his affidavit, he recorded that Thomas told him at about 10.45 am on the day in question that he had checked the permits. His account of the events that day begins:
About 10.45 am, I was working in the site office getting ready for client meetings when Colm Thomas came and spoke to me.
Thomas said: “The union’s onsite, I checked their permits can you come for a walk with us. They want to do a site inspection as they have an issue with access, egress and concrete pour.”
(Emphasis added.)
Under cross-examination Martin confirmed without equivocation that Thomas had told Rees during that conversation that he had checked the permits. He testified that he remembered Thomas saying that.
I accept, of course, that memory is fallible. But there is no apparent reason why Rees or Martin would recall Thomas saying he had checked the official’s permits if it were not true. The Commissioner submitted that Martin and Rees were mistaken. However common sense and the weight of the evidence indicate that this is unlikely.
Further, contemporaneous documentary evidence tended to confirm their recollections.
In the Right of Entry Report, which he completed and signed later that day, Thomas recorded the permit numbers of all three union officials. The Report made no mention of any failure to produce permits.
Under cross-examination Thomas claimed that there was insufficient room on the form to record the information and said that he had obtained the numbers from the website of the FWC. But Thomas accepted that the failure to produce a permit was a serious matter. If the officials had failed to produce their permits, one might reasonably expect that in the column entitled “Federal Permit No.” Thomas would have written “not produced”.
Thomas did testify that he had recorded the non-production of the permits in an attachment to his statement (CT-12), which he described as “compiled notes written on the days in question”. But the reference upon which he relied is equivocal. It reads (without alteration):
I requested inspection of their entry permits
Maki & Anthony did not show there, Anthony Burke Showed his & stated if he shows it he has to Action it “Are we playing that game”.
At the very least, this note does not support the allegation that Burke did not show his permit.
In all the circumstances I am not satisfied that on 27 November 2018 any of the officials failed to produce their entry permits for inspection on request. I would accord no weight to the fact that Burke did not mention in his affidavit Danalis and Dimitriou showing their permits. He denied in cross-examination that the reason he did not mention the matter was because he knew they did not. The Commissioner submitted that it was “a remarkable thing not to recall” when Burke acknowledged that it is a legal requirement and condition of the permit that it be produced on request. But I do not accept the submission. There is no particular reason why Burke would have had an independent recollection of them doing so, especially when he was the first one to produce his permits. Importantly, in his notes (CT‑12) Thomas recorded that Burke did show him his permits. In light of this contemporaneous evidence, I would also place little weight on Burke’s remark (“Are we going to play that game, are we?”). While the comment might have reflected Burke’s disdain for the process, it does not contradict the weight of the evidence that indicates Burke did show his permit to Thomas.
Neither am I satisfied that Danalis or Dimitriou failed to produce their permits when asked to do so the following day. Both of them denied the allegations and the evidence upon which the Commissioner relied does not undermine those denials. In fact, it tends to support them.
In relation to the visit by Danalis and Dimitriou on 28 December 2018, Thomas said that, after he spotted Danalis and Dimitriou at the first aid shed, he had a conversation with them. Insofar as it is relevant to these contraventions, this is Thomas’s account of the conversation given in the statement annexed to his affidavit:
I said: “What’s wrong now?”
[Danalis] said: “I have boys working in the rain.”
I said: “No, I have boys working undercover and when they started working, there was no rain.”
I then said to [Dimitriou and Danalis]: “How did you get on site? Where’s your permit? Show me your permit?”
[Danalis] showed me a piece of paper on a clip board which rested on his arm but I couldn’t determine what it was.
I said: “What is your real name, what’s the name on your permits? You can’t satisfy me who you are, you are not allowed on site. Once again, you haven’t followed procedure and you haven’t signed into site.”
Contrary to the Commissioner’s submission, neither Thomas nor Martin said that Dimitriou did not produce anything. Thomas’s evidence is silent in this regard. Neither did Martin. In the statement annexed to his affidavit, Martin said he was not sure whether the officials showed Thomas their permits. In cross-examination he said he did not recall Danalis showing his permit or any of the conversation between Thomas and Danalis concerning the permit apart from the request to produce it.
In cross-examination Danalis insisted that both he and Dimitriou showed Thomas their permits. Dimitriou also maintained that he had displayed his permit, but conceded that he could not recall whether Danalis had done the same. As with Burke, there is no particular reason why Dimitriou would have an independent recollection of Danalis showing his permit.
The question Thomas admittedly asked Danalis —“What is your real name, what’s the name on your permits?”— is inconsistent with the Commissioner’s case that the permits were not shown. What reason would Thomas have had to ask the question if he had not inspected Danalis’s permit? Thomas also admitted to asking Danalis to let him take a photocopy.
In cross-examination Thomas claimed that the permits were in two different names:
[MR LATHAM:] You knew his name, you knew who he was, you had met him on over a dozen occasions, didn’t you?---I knew him as Maki Danalis, there’s two permits there. One is a work, health and safety entry permit and one is a federal permit, he has to have them both with his – and if the two of them are different I don’t know who he is.
HER HONOUR: You don’t – what was the last statement?---He has two permits in two different names. What I believe, again, it was shown over me, like this, I could not get close enough to witness them.
Thomas appeared to be making this evidence up as he went along. The evidence the Commissioner tendered disclosed that both permits were in the one name: Gerasimos Danalis.
Ultimately, Thomas conceded that what he was really saying was that Danalis could not enter the site until he could prove that his permits were correct.
Furthermore, the allegation that Danalis and Dimitriou refused to produce their entry permits on request is not supported by the contemporaneous note Thomas made of the site visit that day. It relevantly states:
I received a Phone call from Gary Brownlee to advise the CFMEU were onsite @ 12.30pm
On approach to Maki & Anthony who were onsite @ the First Aid shed I asked what was the Issue, Maki stated he had a Phone call from a Member regarding persons working in the rain
I requested he rephrase that comment & stipulate what he is referencing
He obliged with Sec 117 Boys working in the Rain I advised there is no such thing this falls under an award, I briefed all site personal @ the Pre start to work to their relevant EBA,s
He then changed the comment to Safe access & egress & persons unloading a Truck in the Rain
I requested they attend the Site office to discuss & at least sign in, once there I issued them a copy of the Workcover Guide to workplace right of Entry & a Page from the Act Sec 28 Div. 4 Duties of Officers Which they did not comply with
Maki persisted to enter site I told him he cannot enter site unless he undertakes a Visitors induction & wears appropriate PPE notably Glasses
He refused both reasonable requests, I then warned them that if they enter site they are once again in breach of their Permits & trespassing I will call the Police to have them escorted from site
They entered Site, I then Contacted the Police
In cross-examination Thomas admitted that Danalis had shown him his permit. This is how the evidence emerged:
MR LATHAM: You asked for their permits, didn’t you?---I did.
You said – and Mr Danalis showed you his permit and you said to him, “What’s your real name?” didn’t you?---I did.
You knew who Mr Danalis was, didn’t you?---I don’t know him as Geronimo, or Geronimos…
No, I’m not talking about that. He showed you his permit and you said, “What is your real name? You can’t satisfy me as to your real name, you’re not allowed on the site”?---That’s correct…
And you said to him, “I don’t know who you are, let me take a photocopy of your permit didn’t you?---That’s correct.
(Emphasis added.)
It is evident from this exchange that Danalis did produce his permit when asked to do so and Thomas read it.
The Commissioner did not discharge his burden of proving that the union officials refused or failed to produce their entry permits on either day. It follows that the allegations that Burke, Danalis and Dimitriou contravened s 497 of the FW Act must be dismissed.
THE ALLEGED CONTRAVENTIONS OF SECTION 500 OF THE FW ACT
The law
Section 500 of the FW Act provides that:
A permit holder exercising, or seeking to exercise, rights in accordance with [Pt 3-4] must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
It is readily apparent that the elements of a contravention are that the respondent was at the relevant time:
(1)a permit holder; and
(2)exercising or seeking to exercise his rights of entry in accordance with Pt 3-4; and
(3)intentionally hindering or obstructing another person; or
(4)otherwise acting in an improper manner.
Section 500 appears in Pt 3-4 of the FW Act, which concerns the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under the Act and State or Territory OHS laws.
The Commissioner alleged and the union officials admitted that, before entering the site on that day each of the union officials reasonably suspected that one or more contraventions of the WHS Act had occurred or were occurring and that they entered the site “in exercise of, or seeking to exercise, his ‘State or Territory OHS right’” within the meaning of s 494(2) of the FW Act.
As I have already said, it is not in dispute that on both 27 and 28 November 2018 each of the union officials who entered the project site was a permit holder, exercising the rights of a permit holder in accordance with Pt 3-4 of the FW Act. Indeed, these matters were admitted. The dispute concerns whether they were intentionally hindering or obstructing others or otherwise acting in an improper manner.
The words “hindering” and “obstructing” are not defined in the Act. In these circumstances it is to be inferred that the Parliament intended that they bear their ordinary meanings. As Colvin J observed in BGC POS Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 74; 285 IR 43 at [26]:
The ordinary meanings of the words hinder and obstruct overlap. To hinder is to delay, interrupt or cause difficulty to do something or for something to happen. To obstruct is to block or get in the way of something, but may refer to preventing or interfering with a physical action or the movement of something. …
For the purposes of s 767 of the WR Act, which is in relevantly identical terms, Flick J held in Darlaston v Parker (2010) 189 FCR 1 at [52] that the phrase “intentionally hinder or obstruct” embraces any act or conduct that makes it more difficult for a person to discharge his functions except for an act or conduct that is accidental, provided that it is of such a nature as to amount to an “appreciable” obstruction or interference. Darlaston has been applied to s 500: see, for example, Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 197 at [260] (North J).
Whether conduct hinders or obstructs depends on its effect, not its purpose: BGC POS at [39]. But it is not necessary for the Commissioner to prove that a permit holder intended the effect; all he needs to prove is that the actions which had that effect were deliberate: BGC POS at [43].
The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (FW Bill) provides some insight into the kind of conduct to which this section is directed. It states at [1993]:
Conduct by a permit holder that would hinder or obstruct a person includes action that intentionally prevents or significantly disrupts an employer or employee from carrying out their normal work duties. An example of this would be where a permit holder deliberately parks his or her car in the entrance of a building site with the intention of preventing access to the site by trucks scheduled to deliver concrete.
Whether or not a permit holder has acted in an improper manner is to be determined objectively: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) (2018) 258 FCR 158 at [39] (Dowsett, Tracey and Charlesworth JJ). Once again, an intention to act improperly need not be proved: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106] (Mansfield J). See also Setka v Gregor (No 2) (2011) 195 FCR 203 at [35]–[36] (Lander, Tracey and Yates JJ). Impropriety arises, for the purposes of s 500, if there is “a breach of the standards of conduct that would be expected of a person in the position of the alleged [contravenor] by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case”: Castlemaine Police Station Case at [39]. This formulation was taken from R v Burns (1995) 183 CLR 501 at 514–5 where Brennan, Deane, Toohey and Gaudron JJ said:
Impropriety does not depend on an alleged offender’s consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case. When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important: the alleged offender’s knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused. But impropriety is not restricted to an abuse of power. It may consist in the doing of an act which a director or officer knows or ought to know that he has no authority to do.
The Explanatory Memorandum to the FW Bill stated at [1994] that acting in an improper manner is intended to cover a wide range of conduct and includes actions inconsistent with the requirements of the right of entry provisions, such as deliberately engaging in conduct the permit holder knows is not permitted. The expression includes statements made by a permit holder and the manner in which the statements are made: Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847; 270 IR 190 at [170] (Barker J). Nevertheless, there are limits.
In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 252 FCR 198 which, for convenience, I shall call the Qanstruct case, Bromberg J observed at [139] that “whilst ‘improper’ acts beyond hindrance or obstruction are contemplated by s 500, it cannot have been intended that any or all conduct that may be improper within the ordinary meaning of that word should be caught by the provision”. His Honour held at [140] that, for an act to be “improper” within the meaning of s 500, it must have a sufficient connection to the interests the section seeks to protect. More particularly, it must diminish or prejudicially affect those interests. His Honour identified at [139] the relevant interests as the rights of occupiers of the premises to go about their business without undue inconvenience. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473 at [122] Tracey J, with whom Allsop CJ agreed at [1], similarly remarked:
[A] permit holder acts “in an improper manner” for the purposes of s 500 if he or she exercises a right, conferred on permit holders by Part 3-4 of the FW Act, without complying with one or more of the requirements of Subdivision C. The relevant impropriety is to be found in the failure of permit holders who hold privileged rights and associated responsibilities to satisfy their statutory obligations. If that failure is inadvertent or unintentional, liability will still arise but such ameliorative factors will be relevant in determining appropriate penalties for the contraventions.
27 November 2018
The allegations
The Commissioner alleged that on 27 November 2018 Danalis, Dimitriou and Burke each contravened s 500 by intentionally engaging in conduct which included:
(a)obstructing project workers on level 1 of building 8A from continuing with, and completing, the concrete pour;
(b)obstructing Evans and McGrath from driving their trucks into the site to deliver concrete for the pour; and
(c)hindering Murray, Thomas and Rees from discharging their duties on the project, including maintaining the work program on schedule and within budget.
If the Commissioner’s allegations are made out, there could be no doubt that Danalis, at least, contravened s 500. As the Commissioner pointed out in his submissions, telling workers who were pouring concrete to “get off the deck” and directing that a concrete pour be stopped has been found to amount to intentionally hindering work undertaken at a building site: Director of theFair Work Building Industry Inspectorate v Bragdon [2015] FCA 668; 147 ALD 373 (Flick J) (overturned on appeal but not on this point: Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46). So, too, has standing in front of a concrete truck and between the chute of a concrete truck and a concrete pump after being told to move: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2016] FCA 872 (Tracey J). Allegations of this very kind were made against the union officials in the present case.
In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) [2018] FCA 1698; 283 IR 338 Mortimer J found that a permit holder exercising or seeking to exercise his rights under Pt 3-4 of the FW Act, who made statements and conducted himself in a way that was calculated to bring work to stop for the day, was intentionally hindering and obstructing subcontractors and their employees from continuing to work on the site.
Danalis – first series
Two sets of allegations are made against Danalis, described in the amended statement of claim as the first series and the second series. In short, the first series relates primarily to the events constituting, and/or associated with, the obstruction of the concrete pour before the Second Truck tried to enter the site. The second series relates primarily to the events constituting, and/or associated with, the obstruction of the concrete pour from that time onwards.
In para 73 of the amended statement of claim the Commissioner alleged that:
On the basis of the matters pleaded in paras 3, 27–38, 59 and 60, Danalis contravened section 500 of the FW Act on 27 November 2018 at the Project Site by intentionally:
(a)obstructing Project Workers on level one of building 8A from continuing with and completing the pour of a concrete slab;
(b)obstructing the driver of the First Truck from completing delivery of the concrete load;
(c)obstructing Project Workers from operating a concrete pump and pumping the concrete load to level one of building 8A for the pour of the concrete slab;
(d)hindering Thomas from discharging his duties on the Project, including maintaining the work program for the Project to be performed on schedule and within budget;
(e)hindering Rees from discharging his duties on the Project, including maintaining the work program for the Project to be performed on schedule and within budget.
Paragraph 3 relevantly pleads Danalis’s status as an officer, organiser, employee and member of the Union and permit holder for the purposes of both the FW Act and the WHS Act. Paragraphs 59 and 60 plead that each of the union officials entered the project site in exercise of, or seeking to exercise, his State or Territory OHS right, namely inquiring into a suspected contravention of the WHS Act affecting relevant workers at the project site under s 117 of the WHS Act, and that each of them was exercising, or seeking to exercise, his rights under Pt 3-4 of the FW Act. Paragraphs 27–38 recite allegations of fact underpinning the conclusory allegations in para 73. The allegations in paras 27–38, so far as they implicated Danalis, were these:
(1)On level 1 of building 8A:
(a)after Burke raised with Thomas concerns about the lack of two “points” of access and egress and some of the workers not wearing safety glasses, Burke and Danalis demanded that the workers conducting the concrete pour should be taken off the deck and re-inducted into their SWMS at the site office ([27]); and
(b)after Thomas refused to agree to the workers being re-inducted at the site office and arranged for the safety glasses to be distributed and proposed re-induction on level 1, Danalis told Thomas he would stop the concrete pour ([28]–[29]).
(2)On ground level:
(a)Danalis walked to the back of the First Truck as it was reversing, placing himself between it and the concrete hopper and pump, and then put his hand up to push the override button that would stop the reversing First Truck ([31]);
(b)Rees tried to stop him and told him he was obstructing the concrete pour and putting himself in danger ([32]);
(c)Danalis told Rees not to touch him and that he could do whatever he liked ([33]);
(d)Danalis told the driver of the First Truck that he was not to put concrete into the hopper ([33]);
(e)Danalis told Thomas and Rees that the concrete pump was not set up correctly as it was on soft ground and Rees told him that the pump set-up was “adequate” ([34]–[35]);
(f)Danalis told the driver of the First Truck not to put any more concrete into the hopper ([36]);
(g)the driver of the First Truck then stopped work ([37]); and
(h)after a period of time, during which the Crookes representatives continued to talk to the union officials, the driver of the First Truck reported to Rees that the concrete in his truck had “gone off” and packed up his truck and drove away ([38]).
Paragraph 74 is in the following terms:
In the alternative, Danalis contravened section 500 by acting in an improper manner by reason of the conduct underlying each of paragraphs 73.a - 73.e, or a combination of them.
The manner in which the Commissioner pleaded the contraventions of s 500 was unsatisfactory and potentially misleading. Some of the alleged contraventions were pleaded on the basis that specified conduct listed in specific subparagraphs was the basis for the contravention (the first form of pleading). Some relied on the conduct in “each of” the subparagraphs (the second form). Others referred to a “combination” of the subparagraphs (the third form). The union officials submitted that the first form of pleading required all of the subparagraphs to be proven to establish the contravention; the second required any of the subparagraphs to be proven; and the third required a combination (which I interpret as two or more) of the subparagraphs to be proven.
Para 73 was in the first form of pleading. During the hearing, lead counsel for the Commissioner, Mr White SC, proffered conflicting explanations as to how para 73 was intended to operate, and provided no written response to the union officials’ submissions on this point. At one stage, Mr White appeared to suggest that each subparagraph of para 73 was a separate contravention of s 500 although his remarks are confusing:
MR WHITE: … Now, the point, as I understand it, that the respondents wish to make is that, in listing the items or persons who have been obstructed or hindered, we are saying, apparently without realising it ourselves, that we cannot succeed on the contravention unless we prove and your Honour finds each and every one of those subparagraphs, as opposed to the usual way in which the evidence on all of those matters would be taken.
And your Honour may accept some of them and may not accept others. And your Honour may say, “Well, I find in relation to the project works, for example, or the first truck that there was an obstructing,” and the others would fall away. That’s how we intended it and that’s how we understand it and I would have thought that that’s how the court would understand it. Apparently the respondent don’t and I just wanted to ventilate that to make it clear that we are saying that we could succeed on any one of those subparagraphs if the findings go our way and your Honour finds that it amounts to a contravention.
In closing submissions, however, Mr White confirmed that the allegation in para 73 was that it was the combination of the several events that constituted the contravention, referring to the subparagraphs as being a “continuum of acts”. That is consistent with the natural reading of para 73. The absence of a conjunction, such as “or” or “and/or”, between subparagraphs or of any introductory phrase in the chapeau to the paragraph to suggest otherwise, indicates that the subparagraphs were intended to be cumulative.
In substance, then, para 73 pleads that the contravention consisted of engaging in a course of conduct comprised of the sum total of all the events described in it.
It therefore follows, as the union officials submitted, that to succeed on the obstructing or hindering allegations the Commissioner had to prove each of the elements listed in subparas (a)–(e). Consequently, if any one of the subparagraphs is not proved, then the Commissioner’s case falls over.
The Commissioner also pleaded in para 75 that Danalis contravened s 500 by acting in an improper manner by a “combination of” the following conduct:
(a) refusing to get out of the way of the reversing First Truck as requested by Rees;
(b)ignoring or recklessly disregarding the reasonable explanations and proposals by Richard Crookes representatives with regard to the safety issues raised;
(c)persisting in his attempt to shut down the Project Site unlawfully and without authority to do so; and
(d)behaving in an abusive, insolent and aggressive manner towards the driver of the First Truck and representatives of Richard Crookes.
These allegations were largely based on the same paragraphs upon which the Commissioner relied to support para 73. The Commissioner’s submissions departed somewhat from his pleading, however, in that, in addition to the matters pleaded in para 75, he submitted that Danalis acted in an improper manner by a combination of the above conduct and also by refusing to show his entry permits on request. Although the chapeau to para 75 referenced the conduct pleaded at paras 22 and 23 in support of the alleged contravention and paras 22 and 23 captured the allegations about the entry permits, no such matter was pleaded in any of the subparagraphs as conduct constituting improper behaviour for the purposes of s 500. No application was made, let alone granted, for leave to amend the pleading. In these circumstances it would be unjust to have regard to the evidence in support of the alleged contravention and the submission the Commissioner made should not have been made: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [64] (Logan, Bromberg and Katzmann JJ). In any case, I have already found that those allegations were not made out.
The respondents submitted that there was no evidence that any of the union officials intentionally obstructed the project workers on level 1 of building 8A except for their involvement in pointing out safety concerns that led to the cessation of work ordered by Crookes to allow for the provision of safety glasses and the re-induction of workers.
Did Danalis intentionally obstruct or hinder as alleged in para 73 of the amended statement of claim?
The Commissioner made the following allegations in paras 27–29.
While on level 1 of building 8A, Burke raised with Thomas concerns about the absence of two points of access to, and egress from, the building and about some of the workers not wearing safety glasses. Burke and Danalis demanded that the workers conducting the concrete pour be taken off the deck and re-inducted into their SWMS at the site office. Thomas disagreed but arranged for safety glasses to be distributed to the workers and proposed a re-induction on level 1. Danalis then told Thomas that he (or they) would stop the concrete pour.
The allegations were largely derived from Thomas’s account of events.
In the statement annexed to his affidavit he said (without alteration):
After seeing the plant operating Burke started asking a number of questions.
Burke asked: “Why the guys don’t have glasses on?”
Burke asked: “Why concreters were working under the concrete pump”
Burke said: “There has to be two points of access and egress on site”
I said: “No it’s not, prove it.”
I said to Shane [Martin]: “Go down stairs and give them glasses.”
Burke said: “Get the boys off the deck and re-induct them.”
I said: “No, we will re induct them here.”
I said: “This isn’t an issue because there was a spotter present. These concreters conduct a pre start before each pour.”
I was insistent that they keep the pour going. It’s important that suspended, post tension slabs not stop pouring mid pour, as these slabs are not designed to incur cold joints.
Burke noticed that the concreters were not wearing safety glasses.
Burke said: “They need to get off the deck and be re-inducted into their SWMS.”
Shane Martin then went down to the lower ground floor and gathered safety glasses for the concreters.
I said to Burke: “It’s not a legislative requirement. We have provided them with glasses and we can refresh them of their SWMS on the deck.”
[Danalis] said: “We’ll do it old school and block the concrete trucks”.
I am not persuaded that at this time Danalis said that they would “block the concrete trucks” or stop the concrete pour.
First, if Danalis had made such a declaration, it is likely that one or more of the Crookes representatives would have remonstrated with him or taken immediate action to prevent him from doing so. Yet on Thomas’s account there was no reaction to Danalis’s remark.
Second, neither Rees nor Martin stated that Danalis said any such thing, although each of them was apparently in a position to hear him had he done so. In cross-examination Rees confirmed that Danalis said he was “going old school”, whatever that means, but at the same time he agreed that Danalis did not then say he (or they) would block the concrete trucks or stop the concrete pour.
In fact Rees’s evidence was inconsistent with Danalis making such a statement. Rather, his evidence was that he surmised that this was what the union officials were going to do and it was he, not Danalis, who said that the officials were going to stop the pour. On Rees’s account, all Danalis proposed while they were on level 1 was a brief interruption or suspension of the pour to enable the concreters to be re-inducted. Danalis called for the pour to be stopped. He did not say that the union officials would do it.
In the statement annexed to his affidavit Rees stated that Burke observed that “not all concreters are wearing safety glasses” and then Danalis said: “Stop the pour. Reinduct all concreters in the site shed”. A discussion then ensued. Rees said he told Danalis and Burke that Crookes would do a refresher “now on the deck” and provide safety glasses to all concreters who were not wearing them. Rees said he then instructed one of the foremen to procure the safety glasses from the site office and take them to level 1 for the concreters who were not wearing any. He said that Burke insisted on the workers being re-inducted in the site shed and, as the foremen handed out safety glasses to the concreters, there was a heated conversation between Thomas and Rees and the three union officials. He and Thomas objected to the matters they raised and showed them “evidence why their issues weren’t breaches”. He said that Danalis responded: “[If] [t]his is where you want to go with this, we are going to go old school now”. Rees said that Danalis and Dimitriou then walked away from the group down the stretcher stairs towards the concrete truck and pump and stood nearby on the access road adjacent to the site office. At this point Rees stated:
I had a gut feeling that Danalis and Dimitriou were going to stop the concrete pump and I had a conversation to [sic] Colm.
I said: “They are going to try and stop the concrete pump”.
In cross-examination Rees acknowledged that when Danalis was on the deck he did not say he was going to stop the concrete pour. That concession is consistent with what he said in his evidence in chief. If Danalis had announced that they were going to stop the pour, why would he rely on his gut feeling?
Martin made no mention of Burke at this point. Nor did he support Thomas’s evidence that Danalis said they were going to stop the pour. His account was as follows:
The group walked up to level 1 of building 8A on the scaffolding and monitored work going on around us.
[Danalis] said: “Should the guys be wearing glasses?” Referring to the concreters and the linesman doing the concrete pour on level 1.
Thomas said: “Yes they should. I’ve got no problem giving the guys glasses.”
[Danalis] said: “Have you got an emergency evacuation procedure?”
Thomas said: “Yes we do. Shane can you go and get the emergency evacuation procedures and glasses for the workers.”
I said: “Yeah, no problems.” I then left the group to get the items [Thomas] requested.
I was gone for about ten minutes getting the evacuation plan and glasses and then returned to the area where the group was when I left and went and gave the glasses to the workers to put on, which they did. When I returned to the group, I could hear a loud conversation between [Thomas] and [Danalis].
[Danalis] said: “We can do it the old fashioned way, if you like?”
I don’t recall what was said.
Danalis denied that he told Thomas that he or the union officials would stop the pour. Danalis deposed that, when they reached the deck, he voiced concerns about workers being under the boom of the concrete pump. He also said that he saw a sign which listed the required personal protective equipment and expressed his concern that none of the workers were wearing safety glasses. He then asked Thomas to provide the glasses and requested permission to address the workers working under the boom about “the safety issues” but either Thomas or Rees denied that anyone was working under the boom and refused permission for him to address the workers. Danalis’s evidence was that Burke, not he, said that the workers should be taken off the deck and re-inducted. He said that these discussions occurred while the concrete pump continued to operate.
While he denied saying he would stop the pour, he did say in his affidavit that he said “something to the following effect to the wider group”:
There’s no point dealing with you, we’ll just go downstairs and sort it out ourselves.
He went on to say that he meant he “would look at the concrete pump and if there was a safety issue, we could stop the pour that way”. He said he was strongly of the view that the pour was unsafe and the Crookes representatives were not listening to them.
Dimitriou insisted that Danalis did not say anything like “Well, we will do it old school. We will stop the pour”. Burke professed to have no recollection.
It was not put to any of the Crookes employees that they had colluded with each other or conferred on the contents of their statements and the fact that the statements differ in several respects tends to suggest that they did not. In the circumstances I consider it is more likely than not that one of the union officials did say something like “we’ll do it old school” or “in the old-fashioned way”. On balance, that was probably Danalis. The statements of the Crookes employees were made relatively contemporaneously when their memories were likely to be fresh. The affidavits of the union officials were made nearly two years after the events in question and there is no suggestion that they made any contemporaneous notes of the discussions or, with the exception of the WHS notice, of the events in question. On the whole of the evidence, however, I am not satisfied that, while on level 1, Danalis said that he or they would stop the pour. In any event, regardless of what Danalis said, I am not satisfied to the requisite standard that during the time the union officials were on level 1 of building 8A, Danalis intentionally obstructed project workers from continuing with and completing the pour of a concrete slab.
The Commissioner’s evidence on this question was inconsistent.
Rees testified in cross-examination that the concrete pour stopped for 10 to 15 minutes while the concreters were re-inducted on the deck and provided with safety glasses “so they could meet their requirements of their own safe operating procedures”.
Thomas insisted that there was no interruption in the concrete pour while the re-induction took place. He explained:
The concrete truck was backed onto the boom. The boom was still in flow. And we segregated the people. So the guys that were actually pouring the slab, because you can actually still flow the concrete – we re-inducted them – it’s a quick procedure of just going through the steps, a, b, and c. And then getting them to resign [sic] onto it.
In this respect Thomas’s evidence was consistent with Danalis’s.
Nevertheless, I am satisfied that the essential elements of the allegation in para 73 are made out. In particular, I am satisfied that, by reason of his conduct on the ground and his interactions with the driver of the First Truck, Danalis did intentionally obstruct the project workers on level 1 of building 8A from continuing with, and completing, the pour of the concrete slab. I am also satisfied that Danalis obstructed the driver of the First Truck from completing the delivery of his concrete load, that he obstructed workers from operating the concrete pump, and, to the extent that these actions interfered with the progress of the concrete pour, that he hindered Thomas and Rees from discharging their duties on the project. Thomas and Rees both had an interest in ensuring that the work program for the project was performed on schedule and within budget.
The evidence firmly establishes that Danalis’s actions with respect to the driver of the First Truck interrupted the pour, causing the concrete to spoil and the driver to leave. There is little room for doubt that Danalis’s actions were intentional.
Rees gave the following account in the statement annexed to his affidavit.
After Danalis and Dimitriou left level 1 of building 8A, he and Thomas led the group (including the members of the safety committee and Burke) back to the site office. When they reached the site office, Rees saw Danalis walk to the back of the concrete truck placing himself between the rear of the moving vehicle and the concrete pump. It appeared to him that Danalis was going to push the “override” button on the concrete pump (also called the “e-stop” or “emergency stop” button), which would have stopped the pump. When Danalis was within about a metre of the hopper, he interposed himself between Danalis and the hopper and directed Danalis that he was not to stop the concrete. Danalis shouted: “Don’t touch me”. Rees instructed the concrete pump operator to continue placing concrete in the hopper. Danalis instructed him not to. Rees told Danalis he was restricting them from doing their construction works. For the next half hour or so, Thomas and Rees tried to negotiate for the pour to continue. Rees said that the concrete was at risk of going off in the pump line. Danalis replied that the pump was “not even set up correctly” as it was “on soft ground”. Rees responded that they had a “geotech report for compaction results”.
Thomas instructed the concrete pump operator to carry out a visual inspection and advise whether the pump was set up correctly. The operator conducted the inspection and told Thomas that he had “no issues” whereupon Rees said to Danalis: “Based on professional advice from the operator and the geotech report I deem the pump setup adequate”. Danalis replied: “You don’t care. You’re putting the workers at risk”. Danalis then approached the First Truck driver and said “in [an] assertive voice”: “You’re not putting any more concrete in”. Rees declared: “You cannot impede the works”.
The driver of the First Truck stopped work, apparently intimidated and confused, and stood beside his truck while the Crookes representatives and the union officials continued to talk. A little while later, the driver told Rees that the concrete had “gone off”. The driver then packed up and left the site.
Steps were then taken to try to “save the slab”.
Some of this evidence was corroborated by Martin. He confirmed that Danalis had put his hand out towards the emergency stop button and that Rees tried to stop him from hitting it. Martin said that unauthorised people should not be near a concrete pump. He said that Rees told Danalis that he could not do as he was doing because he was putting himself at risk whereupon Danalis replied: “I can do whatever I like”. At this point Rees took Martin aside and asked him to contact the police. Martin did as he was asked.
Martin gave a different account of the conversation about the geotech report. He said that Danalis asked Rees whether he had a geotech report “as the legs of the pump are close to the wall and seems to be sinking” and Rees replied that they had a geotech report and there was rock under the dirt.
Thomas confirmed that Danalis stood between the concrete pump and the First Truck while it was discharging concrete into the hopper. He also confirmed that Rees told Danalis he was obstructing the concrete pour and putting himself in danger. Like Martin, Thomas said that Rees tried to usher Danalis out and away from the pump by putting his hand out to Danalis, which prompted Danalis to reply: “Don’t touch me”.
I doubt whether Danalis could be said to have “organised” the action. “Organise” appears in several places in the BCIIP Act but it is not defined. In comparable circumstances, for example in the context of organising industrial action it has been said to involve positive action intended to, and in fact, inducing or procuring others to engage in conduct by “marshalling”, “rallying” or “coordinating” employees to bring about or maintain the industrial action: see, for example, Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [1998] FCA 321; 81 IR 15 at 22 (North J); Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223; 179 IR 44 at [79]–[80] (Jessup J); Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 at [53] (Charlesworth J); Australian Building and Construction Commissioner v Huddy [2017] FCA 739 at [66]–[72], [147] (White J). Danalis led the way, it must be said. But it is a stretch to say that he organised the others.
It is unnecessary, however, to reach a concluded view on this question because I am not persuaded that the conduct in question amounted to an “unlawful picket”.
Certainly Danalis took action to prevent the entry of the Second Truck onto the project site by telling and gesturing to Evans not to enter and by standing in the path of the truck. And if I am wrong in the conclusions I have reached about the roles of Dimitriou and Burke in preventing Evans and McGrath from entering the site, by standing in the path of the Second Truck all three union officials would have directly prevented or restricted access to the building site by Evans and McGrath. The action was (or would have been) unlawful because it contravened s 500 of the FW Act. But in participating in that action none of the officials could reasonably be said to have engaged in a picket and, even if Danalis can properly be said to have been the organiser of the action, the action was not a picket.
I appreciate that an “unlawful picket” is described as “action” meeting the description in s 47(2) and it is true that Parliament could have defined an “unlawful picket” as a “picket” that meets that description. On a literal interpretation of the section Danalis’s conduct could arguably fall within its terms. But the modern approach to statutory interpretation eschews “narrow literalism”: Solutions 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 60 NSWLR 558 at [81] (Spigelman CJ, Mason P and Handley JA agreeing at [160] and [161] respectively). In interpreting s 47, the interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation: Acts Interpretation Act 1901 (Cth), s 15AA. The reference to “action” must be read in context. That context includes the use of the term “picket” and the mischief which the legislation was intended to remedy. See, for example, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). The Explanatory Memorandum noted (at [125]) that “[u]lawful pickets were not a feature of any of the predecessor Acts” and explained that “[the provision which became s 47] has been included … to address the disruptions to the building industry caused by picketing”. Thus, it is not any action of the kind described in s 47(2) that the legislation was intended to remedy, it is picketing action.
The BCIIP Act contains no definition of a “picket”. In the absence of a statutory definition, it is reasonable to infer that Parliament intended the word to have its ordinary meaning.
The Macquarie Dictionary relevantly defines a “picket” as:
a person or a body of persons stationed by a trade union or the like in front of a place of work and attempting to dissuade or prevent workers from entering the building during a strike
The Oxford English Dictionary provides a broader definition and similar definitions can be found in the Collins English Dictionary, Merriam-Webster, and the Cambridge English Dictionary. It relevantly defines a picket as:
Usually in plural. A person or group of people stationed outside a workplace during a strike to try to dissuade workers from entering; (in extended use) a person or group of people conducting a similar protest or demonstration outside any premises. Also (in singular): the act of doing this, or the blockade so formed.
In Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at [69] the Full Court (Wilcox, Burchett and Cooper JJ) said:
A “picket”, in the industrial relations setting, is a person who stands outside an establishment to make a protest, to dissuade or to prevent employees, suppliers, clients or customers of the employer from entering the establishment. “To picket” is to post or serve as a picket at an establishment.
(Emphasis added.)
Thus, in the absence of evidence that a strike (or, for that matter, any industrial dispute) was in progress or that the union officials organised or engaged in a protest against Crookes, the Commissioner’s case must fail.
There was no such evidence. The action in question is the action the subject of the s 500 contraventions. It consists of the action taken by Danalis (and, on the Commissioner’s case, also Dimitriou and Burke) to prevent the entry to the site by the Second and Third Trucks. Besides, the union officials were inside the premises at the relevant time and lawfully so. While picketing involves obstruction, not every obstruction is a picket.
Thus in my opinion the Commissioner’s case is misconceived. While Danalis’s actions were unlawful in that they contravened s 500, he neither organised nor engaged in a picket and his fellow officials did not engage in one. For this reason alone I find that none of the officials contravened s 47.
In these circumstances it is unnecessary to determine the remaining questions. For completeness, however, I will do so briefly.
The Commissioner alleged that the action was motivated for the purpose of supporting or advancing claims against Crookes in respect of its employment or engagement of contractors. The Commissioner relied on the statutory presumption in s 57 and, by inference, submitted that it had not been rebutted. He went on to argue that:
In any event, the evidence supports the finding that the motivation of Danalis, Dimitriou and Burke was to advance claims against Richard Crookes in respect of the engagement of concrete workers to perform the concrete pour, namely the conditions of work (specifically, safety requirements) for the concrete workers conducting the concrete pour on building 8A
While each of the officials denies having the requisite motivation for the purposes of s 47(b)(i) [sic] of the BCIIP Act, they all confirm that their motivation was to have Richard Crookes address the safety issues for the workers on the Project Site. It is abundantly clear from the facts which the Court should find … that these safety issues related to the safety of the concrete pour. Richard Crookes engaged contractors to perform that concrete pour and therefore the officials’ motivation was to advance claims in respect of the engagement of those contractors.
(Emphasis added.)
I reject the Commissioner’s principal allegation. There is no evidence to support it. The words of the section are not apt to capture ad hoc safety concerns or complaints at a building site. The Commissioner’s argument is a non sequitur. Merely because the union officials admitted that their motivation was to have Crookes address the safety issues for workers on the project site, that those safety issues related to the safety of the concrete pour and that Crookes engaged contractors to carry out the pour, does not mean that their motive was to advance claims in relation to the engagement of the contractors. I ask rhetorically what claims had been made in respect of the engagement of the contractors? Had it been necessary to do so, I would have found that the presumption that the conduct was taken for this reason was rebutted.
As the Commissioner’s claim that the actions of the union officials were otherwise unlawful is based on the alleged contraventions of s 500 of the FW Act and I am not satisfied that Danalis and Burke did contravene s 500 as alleged, the allegation that their actions were otherwise unlawful must be rejected.
THE LIABILITY OF THE UNION FOR THE CONDUCT OF ITS OFFICIALS
In respect of all the alleged contraventions of the FW Act by the union officials, the Commissioner contends that the Union also committed them, in the case of the contraventions of s 500 because of the operation of ss 550 and 793 of the FW Act and in the case of the alleged contravention of s 503 because of the operation of s 550.
The relevant legislative provisions
A registered organisation, such as the Union, is a body corporate: Registered Organisations Act, s 27.
Section 793 of the FW Act deems conduct taken by a union official within the scope of his or her actual or apparent authority to have been also engaged in by the Union. It relevantly provides as follows:
Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2)If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a)that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b)that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
…
(5) In this section, employee has its ordinary meaning.
“Officer” of an industrial association is defined in s 12 to mean an official, delegate or other representative of the association.
Each of Danalis, Dimitriou and Burke was admittedly an officer of the Union at all material times. Each was therefore an official within the meaning of the two sections. If the union officials were acting on behalf of the Union and within the scope of their actual or apparent authority, it follows from the terms of s 793 that their actions would be taken to be the actions of the Union.
Section 550 is concerned with accessorial liability. It provides:
Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
The Commissioner alleges that the Union was a person who was “knowingly concerned” in the contraventions. There is no dispute that, to be knowingly concerned in a contravention, the Union had to have knowledge of the essential elements of the contravention. For the purposes of s 793, however, the actions of the officials are taken to be the actions of the Union and it is enough to establish that the officials had the relevant knowledge.
Is the Union taken to have also contravened the FW Act?
The Commissioner alleges that the Union is liable as a principal for the contravention of s 503 by Danalis and as an accessory for the other contraventions because it was knowingly concerned in, or a party, to those contraventions.
It will be recalled that the Union is a body corporate. The FW Act deals with the liability of bodies corporate in s 793, extracted above at [389].
It was an agreed fact that each of Danalis, Dimitriou and Burke was an officer and employee of the Union at all relevant times. It was also agreed that each was exercising or seeking to exercise rights granted to them as officials of the Union. I find that at all relevant times they were acting on the Union’s behalf and that the conduct in which they engaged was within the scope of their actual or apparent authority. While there was no formal admission to this effect, there was no dispute either, and the evidence admits of no other conclusion. After all, a WHS entry permit is issued to a person who is an official of a union on the application of the union for the purpose of allowing union right of entry to workplaces: WHS Act, ss 131, 132. Similarly, entry permits under the FW Act are issued to union officials on the application of the union: FW Act, s 512.
The effect of s 793 is that the conduct and state of mind of a union official is attributed to the body corporate: Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 at [48]–[50] (Charlesworth J). Through this statutory fiction the Union is taken to have engaged in the conduct of its officials and where a state of mind, such as knowledge, intention or purpose is an element of the contravention, it is sufficient that the relevant official had that particular state of mind.
The Union submitted that it could not be liable as principal for the contravention of s 503, relying on the reasoning in Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393. In that case Charlesworth J held at [7], [63]–[67] that s 793 does not enable a registered organisation to be found to have directly contravened s 500 because “conduct engaged in” by an officer of a body corporate, within the meaning of s 793, refers to a physical act or omission and does not include a person’s statutory status (as a permit holder).
The Union’s submission must be rejected.
The reasoning in McDermott (No 2) is not apposite. The problem with the Union’s submission is that a contravention of s 500 is committed by “a permit holder”. Her Honour’s remarks were made in relation to a case, as she put it at [61], in which “a body corporate is alleged to be personally (that is, directly) liable for breach of a statutory prohibition that is directed, on its expressed terms, to a natural person having a particular statutory status (in this case that of a permit holder)”. In contrast, a contravention of s 503 is committed by “a person” and the Union is a person: see Acts Interpretation Act, s 2C. Although the Union submitted that it was not liable for Danalis’s contravention of s 503 because it related to a “statement made by him in his capacity as a permit holder directed at the authorisation of permit holders”, this is contrary to the reasoning in McDermott (No 2) at [60]. There, Charlesworth J observed at [60] that:
[A] finding that a registered organisation is taken also to have engaged in the conduct of its officials may have the forensic consequence that the registered organisation is proven to have contravened the same civil remedy provision of the Act as has been contravened by the officials themselves. That consequence will ordinarily follow because s 793 will, in most cases, facilitate proof of all of the essential elements of a contravention that must be established in the proceedings alleging an actual contravention by the organisation.
While her Honour held that the ordinary consequence did not follow in the case of a contravention of s 500, where liability is imposed on a permit holder, it does follow in the case of a contravention of s 503. Section 793 facilitates proof of all the essential elements of a contravention by the Union of s 503.
Thus it necessarily follows from the finding that Danalis contravened s 503 as alleged that the Union did, too.
The Union is alleged to be an accessory to the contraventions by the union officials of s 500.
The Union submitted that it is not sufficient to establish accessorial liability in the way the Commissioner sought to do, that is by merely asserting that it did exactly the same things with exactly the same guilty mind as the relevant officials or that one party knew another party had committed an offence. Without reference to authority and contrary to a number of single judge decisions, it contended that an accessory who is knowingly concerned in a contravention must do something to connect, involve or associate themselves in the contravention.
The submission must be rejected.
At the time the submission was made, the Union acknowledged the authorities to the contrary, all of which were first instant judgments. The earliest of these authorities was McDermott (No 2) in which Charlesworth J held at [121]:
To the extent that it is necessary to show that CFMEU involved itself in some tangible way in the contraventions of its officials, there is no reason why s 793 should not facilitate proof of that requirement. Section 793 is premised on an accepted fiction that a body corporate is a separate legal entity from those who participate in it: Salomon v A Salomon & Company Ltd [1897] AC 22. Accepting that fiction, it does not matter that the deemed physical acts of the secondary participant are the same acts in fact engaged in by the primary contravener... Accordingly, the physical acts of [the union officials] are, in each instance, taken also to be the acts of CFMEU. That is sufficient to demonstrate CFMEU's participation in each contravention.
Her Honour went on to observe, relying on s 793(2) that, for the purpose of establishing the Union’s knowledge it is enough to show that the union officials knew all the essential facts constituting their respective contraventions.
The Union’s position was firmly rejected by the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203; 302 IR 106 at [28]–[53]. Reeves and O’Callaghan JJ (at [51]), Charlesworth J agreeing (at [55]), approved the reasoning in McDermott(No 2) at [121].
With respect to the contraventions of s 500 on 27 November 2018, the Commissioner has proved that Danalis knew all the facts constituting the elements of his contraventions, namely, that:
(1)he was a permit holder;
(2)at the time he was seeking to exercise his rights in accordance with Pt 3–4 of the Act; and
(3)he was obstructing and/or hindering the persons in question, and/or otherwise acting in an improper manner.
With respect to the contraventions of s 500 on 28 November 2018, the Commissioner has proved that each of Danalis and Dimitriou knew all the elements of their contraventions, namely:
(1)he was a permit holder;
(2)at the time he was seeking to exercise his rights in accordance with Pt 3–4 of the Act;
(3)as a visitor, was not permitted to enter the project site unless inducted or accompanied by an authorised person, and
(4)he entered the site whilst unaccompanied and without having undergone an induction; and he did so despite having been directed not to do so.
I therefore find that, having been taken to have engaged in the same conduct as the union officials, the Union was involved in the contraventions of s 500 by the union officials and is taken to have committed them, too.
CONCLUSION
The union officials did not contravene s 497 of the FW Act by failing to produce their entry permits on either 27 November or 28 November 2018. Neither did they contravene s 47 of the BCIIP Act by organising or engaging in an unlawful picket on 27 November 2018.
But I am satisfied that on 27 November 2018 Danalis contravened s 500 of the FW Act by intentionally obstructing the concrete workers, Evans and McGrath and by hindering Murray, Rees and Thomas as alleged and that on the following day he contravened s 500 by otherwise acting in an improper manner. I am not satisfied that Dimitriou or Burke contravened s 500 as pleaded on 27 November 2018, whether as principals or accessories. But I am satisfied that Dimitriou contravened s 500 the following day by otherwise acting in an improper manner.
Since Danalis and Dimitriou engaged in the relevant conduct on behalf of the Union and within the scope of their actual or apparent authority, the Union is taken to have also engaged in the conduct and to have committed each of the contraventions of s 500.
I am also satisfied that Danalis contravened s 503 of the FW Act by the actions he took on 27 November 2018 to stop the driver of the First Truck putting concrete into the hopper and to prevent Evans from entering the project site and by the remarks he made to them and McMurray, Rees and Thomas.
Since the conduct of Danalis is attributed to the Union pursuant to s 793, the Union also contravened s 503.
The parties should attempt to agree upon the terms of the declarations that should be made to reflect these reasons. The question of pecuniary penalties will be dealt with at a later date after the filing of any further evidence and submissions.
I certify that the preceding four hundred and seventeen (417) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann. Associate:
Dated: 10 August 2021
SCHEDULE OF PARTIES
NSD 2057 of 2019 Respondents
Fourth Respondent:
ANTHONY BURKE
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