Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case)
[2020] FCA 1727
•2 December 2020
FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) [2020] FCA 1727
File number: VID 496 of 2018 Judgment of: SNADEN J Date of judgment: 2 December 2020 Catchwords: INDUSTRIAL LAW – Application made under the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”) in respect of alleged contraventions of ss 499 and 500 – whether the second respondent unreasonably failed to comply with applicable occupational, health and safety requirements – whether the second and third respondents acted in an improper manner whilst exercising rights of entry in accordance with the FW Act – multiple contraventions alleged – whether first respondent involved in contraventions committed by its officials – application granted in part Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth) – s 15
Evidence Act 1995 (Cth) – s 140
Fair Work Act 2009 (Cth) – pt 3-4; divs 3 and 4; ss 494, 497, 499, 500, 539, 545, 546, 550, 570 and 793
Fair Work (Registered Organisations) Act 2009 (Cth)
Occupational Health and Safety Act 2004 (Vic) – pt 8; ss 87, 88 and 89
Summary Offences Act 1966 (Vic) – s 9
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases cited: Australian Building and Construction Commissioner v Upton (2017) 270 IR 190
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (Castlemaine Police Station Case) (2018) 258 FCR 158
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 Harris [2017] FCA 733
Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393
Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46
Briginshaw v Bringinshaw (1938) 60 CLR 336
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2019) 272 FCR 290
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203
Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299
Darlaston v Parker (2010) 189 FCR 1
Director of the Fair Work Building Industry Inspectorate v Cartledge (2015) 239 FCR 405
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2016] FCA 872
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Hu (2019) 289 IR 240
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 329 Date of last submission/s: 20 November 2020 Date of hearing: 22-25 October 2019 and18 December 2019 Counsel for the Applicant: Ms J. Firkin QC with Ms N. Campbell Solicitor for the Applicant: K & L Gates Counsel for the Respondents: Dr G. Boas with Mr C. Tran Solicitor for the Respondents: Maurice Blackburn Lawyers ORDERS
VID 496 of 2018 BETWEEN: THE AUSTRALIAN BUILDING & CONSTRUCTION COMMISSIONER
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
JAMES SIMPSON
Second Respondent
PETER CLARK
Third Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
2 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application as against the third respondent be dismissed.
2.The matter be listed for further hearing on a date to be fixed regarding the relief that should be granted as against the first and second respondents in light of the court’s reasons for judgment.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PART 1: SUMMARY
[1]
1.1 Introduction
[1]
1.2 The parties
[5]
1.3 The four relevant incidents
[9]
1.3.1 The Eumemmering Creek bridge lift
[10]
1.3.2 The 4 May truck crash
[22]
1.3.3 The 4 May excavator incident
[25]
1.3.4 The 9 May barrier inspections
[31]
PART 2: LEGISLATIVE FRAMEWORK
[39]
2.1 The Occupational Health and Safety Act 2004 (Vic)
[40]
2.2 The Fair Work Act 2009 (Cth)
[46]
PART 3: THE COMPETING CASES
[53]
3.1 The Eumemmering Creek bridge lift
[54]
3.2 The Gate 24 Incident
[65]
3.3 The 4 May excavator inspection
[68]
3.4 The Gate 3 Incident
[74]
3.5 Liability of the Union
[77]
PART 4: THE EVIDENCE
[81]
PART 5: THE EUMEMMERING CREEK SITE INCIDENT
[86]
5.1 The exercise of a statutory right of entry
[88]
5.2 OHS requirements that applied at the Eumemmering Creek Site
[100]
5.2.1 PPE requirements
[107]
5.2.2 The requirement that visitors be escorted
[117]
5.3 The requests that were made of Simpson
[120]
5.4 The reasonableness of the requests
[124]
5.4.1 Simpson’s knowledge of the OHS Plan
[127]
5.4.2 The Escort Requirement
[130]
5.4.3 The White Overalls Requirement
[134]
5.4.3.1 Simpson’s orange high-visibility vest
[136]
5.4.3.2 Fulton Hogan did not supply overalls
[143]
5.4.3.3 The site was well-lit
[149]
5.4.3.4 Simpson was not engaged in “night works”
[154]
5.4.3.5 White overalls and the industry standard
[158]
5.4.3.6 Impeding of the exercise of statutory rights
[168]
5.4.3.7 Simpson was escorted
[171]
5.4.3.8 The purpose of the White Overalls Requirement
[173]
5.4.3.9 The nature of Simpson’s suspicions
[178]
5.4.3.10 Conclusion about the reasonableness of the White Overalls Request
[188]
5.5 Simpson’s compliance with the requests
[189]
5.6 Continued exercise of state or territory OHS right
[199]
5.7 Impropriety
[200]
5.8 Sundry consideration regarding Simpson’s vehicle
[224]
5.9 Conclusion
[228]
PART 6: THE GATE 24 INCIDENT
[229]
6.1 Langley’s evidence
[230]
6.2 Clark’s evidence
[236]
6.3 Other evidence
[239]
6.4 Resolution of the evidential conflict
[244]
6.5 Conclusion
[250]
PART 7: THE EXCAVATOR INSPECTION INCIDENT
[251]
7.1 The existence of a reasonable suspicion
[254]
7.1.1 Did the suspicion exist?
[261]
7.1.2 Was the suspicion reasonable?
[264]
7.2 Impropriety arising from the absence of a reasonable suspicion
[279]
7.3 Impropriety manifest in discussions about matters other than safety
[281]
7.4 Clark’s accessorial liability
[288]
7.5 Conclusion
[295]
PART 8: THE GATE 3 INCIDENT
[296]
8.1 The evidence
[298]
8.1.1 Inkster’s evidence
[299]
8.1.2 Langley’s evidence
[307]
8.1.3 Simpson’s evidence
[310]
8.1.4 Resolution of the evidential conflict
[313]
8.2 Conclusion
[322]
PART 9: THE LIABILITY OF THE UNION
[323]
PART 10: NEXT STEPS
[327]
SNADEN J:
PART 1: SUMMARY
1.1 Introduction
Part 3-4 of the Fair Work Act 2009 (Cth) (the “FW Act”) is entitled “right of entry”. Amongst other things, it regulates the exercise of rights conferred upon certain trade union officials to enter premises for various purposes. For the most part, those rights are created and conferred by the provisions of pt 3-4. Some, however, are created and conferred by state occupational health and safety statutes. It is with rights of that nature—and with the ways in which pt 3-4 of the FW Act constrains their exercise—that the present matter is concerned.
In this matter, two employed officials of a large and well-known trade union are accused of having exercised rights of entry conferred upon them by state legislation in a way or ways prohibited by pt 3-4 of the FW Act. The conduct in question is said to have been engaged in in April and May of 2017, in connection with a large road construction venture known (at least colloquially) as the Monash Freeway upgrade project (hereafter, the “Project”). There are four episodes that took place over those months that are relevant, the particulars of which are outlined in detail below.
I am satisfied that some of the contraventions that are alleged—specifically those relating to the first and last of the four relevant episodes—are made out. The remainder are not. These reasons explain why I have arrived at those conclusions.
Pursuant to orders made by a previous docket judge, the matter proceeded to trial on “…all matters other than relief”. In light of the findings recorded below, it will be necessary for the matter to proceed to further hearing to determine what orders should be made by way of relief.
1.2 The parties
The applicant (hereafter, the “Commissioner”) is the holder of a statutory office created by s 15 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). His standing to prosecute the present action is not in question. As the summary above recites, it pertains to conduct that took place in April and May of 2017 at various locations associated with the Project. Those locations were, at those times, all occupied by Fulton Hogan Construction Pty Ltd (hereafter, “Fulton Hogan”), which was the principal contractor in charge of constructing the works to which the Project related. Fulton Hogan was contracted to that end by its client, a statutory emanation of the state of Victoria known as “VicRoads”.
As the name might suggest, the Monash Freeway upgrade project involved works along and in the vicinity of the Monash Freeway in Melbourne. Although, no doubt, infinitely more complicated in practice, the core of those works involved the addition of lane capacity along that freeway corridor, in particular between Warrigal and Koo Wee Rup Roads, south-west of Melbourne. Those works were divided amongst multiple physical locations along the length of the broader Project site.
The second respondent (hereafter, “Simpson”) was, at all relevant times, employed by and as an organiser of the first respondent (hereafter, the “Union”). The third respondent (hereafter, “Clark”) was, at all relevant times, employed by the Union as a safety officer. The Union is a large and well-known employee organisation registered as such pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). At all material times, it represented, or was eligible to represent, the industrial interests of employees who performed work associated with the Project.
Fulton Hogan employed a number of people in connection with the Project. Of relevance in the present matter are the following, namely:
(1)Mr Brendan Malone (hereafter, “Malone”), who was employed in the role of Project Safety Manager;
(2)Mr Matthew Inkster (hereafter, “Inkster”), who was employed as Fulton Hogan’s Major Projects HR/IR Manager;
(3)Mr Gordon Langley (hereafter, “Langley”), whom Fulton Hogan employed in the role of General Superintendent for the Project;
(4)Mr Mark Sullivan (hereafter, “Sullivan”), whom Fulton Hogan employed as a site supervisor in connection with the Project; and
(5)Ms Janice Virant-Bell (hereafter, “Virant-Bell”), who was employed in the role of Safety Advisor.
1.3 The four relevant incidents
The conduct at the heart of the present matter took place over four discrete episodes. Although there is much in the factual material before the court that is contested, the following summaries of each of those four incidents emerge from what is not in contest.
1.3.1 The Eumemmering Creek bridge lift
The first incident took place in the late evening of Saturday, 29 April and early morning of Sunday, 30 April 2017 at or around the point at which the Monash Freeway crosses Eumemmering Creek, in Endeavour Hills, Victoria. At that point in time, the Monash Freeway proceeded across Eumemmering Creek atop two bridges: one for the two east- or out-bound traffic lanes; and another, slightly to the south of the first, for the two west- or city-bound lanes. Each was separated from the other by a void. As part of the Project, a third lane was to be (and has since been) added to each of the east- and west-bound corridors. That was to be (and has now been) achieved by constructing a third bridge to fill the void that separated the two existing bridges, across which each of the existing carriageways (city-bound and out-bound) could be widened.
The erection of that third bridge required the installation of support pylons in Eumemmering Creek, on top of which were to be fixed (and now are fixed) “cross-heads”: large, pre-fabricated concrete structures that would (and now do) sit atop those pylons and serve as the supports upon which the widened roadway would eventually (and now does) sit. Two such cross-heads were required: one towards the city side of the creek and the other towards the opposite side.
The installation of those cross-heads took place across the evening of Saturday, 29 April and early morning of Sunday, 30 April 2017. The out-bound lanes of the freeway were closed to public traffic to allow those works to occur.
In anticipation of those works (perhaps amongst others), a work site (hereafter, the “Eumemmering Creek Site”) was established on (or partly on) the city side of Eumemmering Creek, in the centre median that divided the in-bound and out-bound lanes of the freeway. In the evening of Saturday, 29 April through until the morning of Sunday, 30 April 2017, that site consisted at least of:
·a car park, which was situated at road level in the centre median area;
·a “laydown” area on the creek side of that carpark (where equipment and materials were stored);
·a ramp that led down from that laydown area to the city-side (or western) shore of the creek (hereafter, the “Creek Access Ramp”); and
·the out-bound lanes of the freeway itself on (and immediately adjacent to) the existing out-bound road bridge.
Additionally, two barges were positioned in the creek, from which a crew of workers would (and did) work to install the cross-heads onto the support pylons (which, by 29 April 2017, had already been erected in the creek). A smaller “tinny” craft was used to shuttle workers between the barges and the creek’s city-side shore (which was accessible to workers via the Creek Access Ramp).
Vehicular access to the Eumemmering Creek Site was gained via the in-bound lanes of the freeway. To the west of the creek, a “slip lane” was constructed on the centre median side of the freeway’s in-bound lanes. Once accessed, it circled right 180 degrees back towards Eumemmering Creek and deposited visiting vehicles at the car park area described above. The slip lane was adorned with signage indicating that it led to a construction site and that only authorised personnel should proceed through. There was also a physical gate obstructing passage beyond a certain point, although it appears not to have been in use on the night of Saturday, 29 April 2017.
The installation of the cross-heads required that they be lifted by means of a large mobile crane from road (or bridge) level onto the pylons upon which they would (and now do) permanently sit. The crane was, to that end, positioned on the existing out-bound road bridge above the creek.
Before the cross-heads could be lifted onto the support pylons, it was necessary to properly configure the crane. That involved positioning it at the location from which it would conduct the lifts, securing it into that position by means of its “outriggers” (that is, pylons that extended from the four corners of the vehicle, at the end of each of which were jacks that, in concert, lifted the crane’s wheels from the ground to keep it secure and level) and attaching “counterweights” to it to ensure that it would not topple whilst lifting the weight of the cross-heads.
On the night of Saturday, 29 April 2017, then, the Eumemmering Creek Site works were concentrated in two areas: the creek itself and the out-bound roadway above it. Both areas were accessible from the “laydown” area described earlier: the Creek Access Ramp adjacent to that area led down to the creek’s western shore; and a walkway at (or near) the top of that ramp led along the southern side of the out-bound roadway bridge (to where the crane was positioned). Access from that walkway to the out-bound traffic lanes was achieved via a set of stairs, which led over (that is to say up over and then back down on the other side of) a barrier that separated the walkway from the roadway.
Simpson attended at the Eumemmering Creek Site between approximately 11:00pm on Saturday, 29 April and 4:00am on Sunday, 30 April 2017. The purpose of his visit was to investigate his suspicions that work was being, or perhaps would be, undertaken there unsafely or otherwise in contravention of the requirements of the Occupational Health and Safety Act 2004 (Vic) (hereafter, the “OHS Act”) or regulations made under it.
Whilst in attendance at the Eumemmering Creek Site, Simpson sought to initiate discussions of a safety-related nature with management representatives of Fulton Hogan, as well as directly with at least some of the construction workers who were present there. For much of his visit, he was stationed at (or towards) the top of the Creek Access Ramp, at or adjacent to some water-filled barriers that had been established there. At one point during his visit, he ventured up onto the out-bound roadway, where the mobile crane was positioned, in order to initiate a discussion with the crane driver.
It is not in dispute that, for the duration of his attendance at the Eumemmering Creek Site, Simpson was exercising a right or rights conferred upon him by the OHS Act. It is upon the manner in which he did so that the first of the four episodes relevant in this matter turns.
1.3.2 The 4 May truck crash
The Project incorporated a work area situated along the Monash Freeway near Stud Road, in Dandenong North. That work area was located in the centre median that divided the two (in-bound and out-bound) carriageways. Access to it was via a slip lane that emerged from the outside lane of the freeway’s city-bound carriageway at what was known as “gate 24”. Save obviously for the point at which it merged with that lane, the slipway—and the work area to which it led (hereafter, the “Gate 24 Site”)—was separated from the freeway lanes by concrete crash barriers.
On the morning of Thursday, 4 May 2017, a truck travelling city-bound along the Monash Freeway clipped a crash barrier at or near the entrance to gate 24, entered the slipway and rolled onto its right side. Simpson and Clark, having been alerted to the accident, decided that they would drive out to gate 24 to investigate. It is not in dispute that their attendance at that location on that day involved their exercising a right of entry conferred upon them by the OHS Act.
Whilst at the Gate 24 Site, Clark was involved in an altercation with Langley. The particulars of that altercation (hereafter, the “Gate 24 Incident”) are the subject of dispute.
1.3.3 The 4 May excavator incident
At approximately (or perhaps a little after) noon on the same day—after the Gate 24 Incident had transpired—Simpson and Clark headed back onto the Monash Freeway, city-bound. Whilst driving between Eastlink and Wellington Road in Mulgrave, they noticed some works being undertaken on the out-bound carriageway. The left-hand lane of that out-bound carriageway had been closed to traffic, and a crew of workers was undertaking some gantry protection works—that is, works to protect (from vehicular collision) the uprights of a gantry from which road or other signage hung above the freeway. Those works were taking place in or adjacent to the existing, left-hand emergency lane and required the use of an excavator.
Upon noticing those works, Simpson and Clark decided to go and inspect them. Upon pulling their vehicle up to the area at which they were working (hereafter, the “Gantry Works Site”), Simpson and Clark introduced themselves to some of the workers and asked to speak with their supervisor. Sullivan was called and arrived a short time later.
To the north-west (or city-side) of the Gantry Works Site, the left-hand lane of the out-bound carriageway had been closed to traffic. The freeway speed limit in and around the area had been reduced to 60 kilometres per hour. Bollards were in place to signal to traffic that the left-hand lane was not in use in the vicinity of the work and a truck-mounted attenuator—essentially a crash barrier attached to a truck—was positioned on the city-side of where the gantry works were situated to prevent errant vehicles from crashing into the work area. To the left of the closed left-hand lane was an emergency lane and to the left of that was an existing concrete crash barrier. The excavator was situated in the emergency lane.
Whilst at the Gantry Works Site, Simpson and Clark raised concerns about the measures that were in place to protect workers from nearby live traffic. Those concerns were raised initially with Sullivan and, later, with Malone and two representatives of WorkSafe Victoria, who had been called to (and later attended) the site. Clark was provided with a copy of Fulton Hogan’s traffic management plan, which outlined the measures that were to be taken to ensure that the works could be completed safely. Although the works were proceeding in accordance with that plan, Clark nonetheless suggested that the excavator could more safely perform its earthmoving work from behind the existing concrete crash barrier (rather than from the left-hand emergency lane). That was agreed to.
There was then a discussion between Simpson and Clark about the state of the excavator. Although the circumstances leading to it are disputed, Simpson and Clark resolved to issue to Fulton Hogan a notice under s 88(1) of the OHS Act in respect of the excavator (hereafter, the “Excavator Notice”). What then followed was an inspection of the machine and its logbooks, and a discussion with its operator, during which work at the area was postponed for somewhere in the order of 15 minutes (and perhaps slightly longer). That process uncovered a fire extinguisher present within the machine that was past its use-by date. The fire extinguisher was replaced and, ultimately, the excavator resumed its work. Simpson and Clark left the area at approximately 2:00pm and the gantry protection works were completed prior to 3:00pm, when Fulton Hogan was obliged to reopen the left-hand lane of the freeway.
Again, it is not in contest that, in attending at the Gantry Works Site, conducting the inspection of the excavator and its logbooks, and speaking to the excavator’s operator, Simpson and Clark were both exercising or seeking to exercise rights conferred upon them by the OHS Act.
1.3.4 The 9 May barrier inspections
The last of the four episodes relevant to this matter occurred on 9 May 2017, a matter of days after the truck crash at gate 24. Simpson attended at Fulton Hogan’s Project office and informed Inkster that he wished to inspect the exclusion (or “no-go”) zones behind the Project’s crash barriers.
Along the corridor (or at least certain parts of the corridor) in which the Project works were undertaken, crash barriers were established to separate work areas from freeway traffic. The purpose of those barriers was to prevent vehicles from intruding upon work areas in the event of an accident. Behind—that is to say, on the working (or non-traffic) side of—those barriers, Fulton Hogan established exclusion (or “no-go”) zones: that is, buffer spaces into which personnel were not permitted to venture. In the event of an accident involving a crash barrier, those zones were designed to ensure that any resultant movement of the barrier occurred sufficiently well away from those working nearby. The “no-go” zones were marked by bollards, to which was affixed high-visibility, roped safety flagging.
On 9 May 2017, Simpson indicated his wish to check the depth of the exclusion zones throughout the entire Project. That was met with a degree of scepticism by Inkster, who pointed out that, if he wished to exercise a right of entry in respect of any of the particular sites along the Project corridor, Simpson would need, first, to identify which ones; and, second, to have formed a reasonable suspicion in respect of each that there was some safety concern in play.
Simpson then issued Inkster with a “notice of suspected contravention” under s 88 of the OHS Act. It pertained to the Gate 24 Site, which Simpson and Clark had attended a few days earlier. Under the heading “Description of the Suspected Contravention of the OHS Act…”, Simpson wrote (errors original):
the no-go zones behind the crash barriers being wide enough according to manufacturers\engineers specifications
In answer to the question posed on that notice, “Why do you consider these matters to be a contravention of health and safety?”, Simpson wrote:
if the no-go zone is not wide enough workers in the area may be at risk if a vehicle crashes through causing serious harm or death
Simpson, Inkster and Langley then drove to the Gate 24 Site, arriving at approximately 8:15am. Simpson then proceeded to measure the width of the exclusion (or “no-go”) zones adjacent to the crash barriers there. As he proceeded along the barriers, Simpson apparently came to the point at which the Gate 24 Site bordered the adjacent work area, known as gate 26. Inkster told Simpson that he could not proceed into gate 26, as that area had not been the subject of his notice. Simpson ignored Inkster’s indication and continued to measure the exclusion zone into the gate 26 site. That continued through until approximately 9:00am, whereupon the trio returned to Fulton Hogan’s Project office.
Upon their return to the Project office, Simpson told Inkster that he wished to inspect the exclusion zones at “gate 22”. Inkster informed him that there were no exclusion zones at that location because nobody was working there. Simpson then indicated that he wished to inspect the exclusion zones at “gate 20” and “gate 18”, apparently unaware that no such areas existed. Ultimately, Simpson fixed upon a gate that did exist: gate 3. He wrote up another “notice of suspected contravention” document pertaining to that location in terms materially identical to the document prepared in respect of the Gate 24 Site.
Simpson, Inkster and Langley then drove to the “gate 3” area of the Project (hereafter, the “Gate 3 Site”), whereupon Simpson proceeded to measure the width of the exclusion zones there. As had occurred at the Gate 24 Site, Simpson eventually made his way to a point at which the Gate 3 Site ceased and a new designated gate area began. There then followed an exchange between Simpson and Inkster that is the subject of evidential conflict (the particulars of which are explored in detail below). It is upon that exchange—and, in particular, the conduct in which Simpson engaged during it—that the fourth of the four episodes relevant in this matter (hereafter, the “Gate 3 Incident”) turns. It is not controversial that, throughout the course of measuring exclusion zones on that day, Simpson was exercising or seeking to exercise rights under the OHS Act.
PART 2: LEGISLATIVE FRAMEWORK
Two enactments assume prominence in this matter: the FW Act and the OHS Act. It is convenient to separate the analysis of the two.
2.1 The Occupational Health and Safety Act 2004 (Vic)
Section 87 of the OHS Act is (and, at times material to this matter, was) in the following terms:
87 Entry powers of authorised representatives
(1)This section applies if an authorised representative of a registered employee organisation reasonably suspects that a contravention of this Act or the regulations has occurred or is occurring at a place that is a workplace and any of the following paragraphs applies—
(a)the suspected contravention relates to or affects work that is being carried out by one or more members of the registered employee organisation or relates to or affects any of those members;
(b)the suspected contravention relates to or affects work that is being carried out by one or more persons whose employment is subject to a collective agreement, a certified agreement or an enterprise agreement, or relates to or affects any of those persons, and that agreement applies to the registered employee organisation;
(c)the suspected contravention relates to or affects work that is being carried out by one or more persons—
(i)who are eligible to be members of the registered employee organisation; and
(ii)whose employment is not subject to a collective agreement, a certified agreement or an enterprise agreement which applies to any registered employee organisation—
or relates to or affects any of those persons.
Note
Place is defined in section 5 as including a car, truck, ship, boat, airplane and any other vehicle.
(2)The authorised representative may enter the place, during working hours, for the purpose only of enquiring into the suspected contravention.
(3)Nothing in this section requires an authorised representative of a registered employee organisation to disclose to another person the names of persons who are members of that organisation.
(4) In this section—
certified agreement means a pre-reform certified agreement that continues in existence as a transitional instrument under the Fair Work Transition Act;
collective agreement means a workplace agreement that is a collective agreement that continues in existence as a transitional instrument under the Fair Work Transition Act;
enterprise agreement means an enterprise agreement made under the Commonwealth Fair Work Act.
Note
Section 90 provides certain limitations on the exercise of the powers conferred by this section.
That the Union was (and is) a registered employee organisation is not in contest. Similarly, it is not controversial that each of Simpson and Clark were, at relevant times, authorised representatives of the Union within the meaning attributed to that phrase by the OHS Act. The areas within the Project that are of relevance in this matter—that is, the Eumemmering Creek Site, the Gate 24 Site, the Gantry Works Site and the Gate 3 Site—were each “workplace[s]”: OHS Act, s 5(1). It is not controversial that at least one of the three preconditions listed in s 87(1) of the OHS Act was satisfied throughout all of the occasions of relevance to this matter.
Section 88 of the OHS Act concerns what an authorised representative must do upon gaining entry to a place under s 87(2). The section is (and was) in the following terms:
88 Announcement on entry
(1)Immediately on entering a place under section 87, an authorised representative of a registered employee organisation must take all reasonable steps to give a notice to and produce his or her entry permit for inspection by—
(a)the employer who has, or a person who on behalf of the employer has, the management and control of the work at the place; and
(b)if members of a designated work group are affected in any way by the entry, a health and safety representative for that group.
(2)The notice must be in the form approved (in writing) by the Authority and include a description of the suspected contravention.
Again, it is not controversial that each of Simpson and Clark was, at relevant times, the holder of an “entry permit” issued pursuant to pt 8 of the OHS Act.
Section 89 of the OHS Act is headed “Powers on entry”. It lists what authorised representatives are entitled to do upon gaining entry to a place under s 87(2). It is (and was) in the following terms:
89 Powers on entry
(1)An authorised representative of a registered employee organisation who enters a place under section 87 may do any of the following but only to the extent that it is reasonable for the purpose of enquiring into the suspected contravention—
(a) inspect any plant, substance or other thing at the place;
(b) observe work carried on at the place;
(c)consult with one or more employees (with their consent) at the place who are members or are eligible to be members of the registered employee organisation;
(d)consult with any employer at the place about anything relevant to the matter into which the representative is enquiring.
(2)The authorised representative must produce his or her entry permit for inspection if asked to do so when exercising any of the powers under subsection (1).
(3)If, while the authorised representative is at the place, an issue arises between the authorised representative and the employer who has, or a person who on behalf of the employer has, the management and control of the work at the place about the exercise of any of those powers, either of those persons may ask the Authority to arrange for an inspector to attend at the place to enquire into the issue.
(4)The Authority must ensure that an inspector attends the place as soon as possible after the request is made and the inspector—
(a) must as soon as possible enquire into the issue; and
(b)may perform any of his or her functions or exercise any of his or her powers under this Act that the inspector considers reasonably necessary in the circumstances.
The reference in s 89 to the “Authority” is a reference to the Victorian WorkCover Authority, a statutory body established under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
2.2 The Fair Work Act 2009 (Cth)
Part 3-4 of the FW Act regulates rights of entry exercisable by “permit holder[s]”. Various such rights are conferred by its provisions; and their exercise—and the exercise of certain others conferred by other sources—is conditioned upon the satisfaction of various requirements. It is not controversial that each of Simpson and Clark was a permit holder at the times material to this proceeding.
Of relevance in this matter are divs 3 and 4 of pt 3-4 of the FW Act, which contain a number of relevant constraints upon the exercise of the powers conferred by ss 87(2) and 89 of the OHS Act. In summary, div 3 of pt 3-4 regulates the exercise of “State or Territory OHS right[s]”. It is not controversial that the right conferred by s 87(2) of the OHS Act—that is, the right of authorised union representatives to enter workplaces—is and was a “State or Territory OHS Right” for the purposes of pt 3-4 of the FW Act: FW Act, s 494(2).
State or Territory OHS rights are exercisable only by “permit holder[s]”: FW Act, s 494(1). A permit holder must not exercise such a right unless he or she produces his or her permit for inspection when requested: FW Act, s 497. Of particular importance in this matter is s 499 of the FW Act, which relevantly provides (and provided) as follows:
499 Occupational health and safety requirements
A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.
Division 4 of pt 3-4 of the FW Act is headed “Prohibitions”. It contains a series of provisions that prohibit various species of conduct relating to the exercise of rights of entry. Of relevance presently is s 500, which relevantly provides (and provided) as follows:
500 Permit holder must not hinder or obstruct
A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
Each of ss 499 and 500 of the FW Act is a “civil remedy provision”: FW Act, s 539(1). This court has jurisdiction to make any order that it considers appropriate if satisfied that a person has contravened either section: FW Act, s 545(1). Such orders may include orders requiring the payment of pecuniary penalties (subject to identified maximums): FW Act, s 546.
Section 550 of the FW Act deals with accessorial liability for contraventions of civil remedy provisions. It provides as follows:
550 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.
Section 793 of the FW Act attributes, for the purposes of the FW Act, certain conduct and states of mind to bodies corporate (such as the Union). By s 793(1), such bodies are deemed, for the purposes of the FW Act, to have engaged in conduct that was, in fact, engaged in by their officers, employees or agents (acting in their actual or apparent capacities as such). By s 793(2) of the FW Act (and insofar as it is necessary for the purposes of the FW Act to establish it), the state or states of mind with which those officers, employees or agents engaged in such conduct is also deemed to have been the state of mind of the body corporate. “State of mind” is defined to include a person’s knowledge, intent, opinion, belief or purpose: FW Act, s 793(3).
PART 3: THE COMPETING CASES
The Commissioner seeks orders in the form of declarations and penalties to remedy contraventions of ss 499 and 500 that, he alleges, the respondents committed over the four episodes around which this proceeding revolves. It is convenient to analyse the competing cases by reference to each of those four events.
3.1 The Eumemmering Creek bridge lift
Insofar as concerns Simpson’s conduct at the Eumemmering Creek Site in the evening of Saturday, 29 and early morning of Sunday, 30 April 2017, the Commissioner alleges that Simpson contravened s 499 of the FW Act by exercising a State or Territory OHS Right whilst in defiance of reasonable requests made by or on behalf of Fulton Hogan that he adhere to applicable occupational health and safety requirements. There were two such requirements with which it is alleged that Simpson was asked to but did not comply, both of which were said to be enshrined at least within Fulton Hogan’s written “Occupational Health and Safety Plan” (to which reference is made below). The first was that he be dressed in particular personal protective equipment (or “PPE”), including safety glasses and full-length, white reflective overalls. The second was that he be escorted by a representative of Fulton Hogan at all times.
The Commissioner alleges that Simpson failed to comply with those requirements. Further, he maintains that Simpson refused to leave the site, despite being requested to. In response to that refusal, it is alleged that Fulton Hogan representatives resorted to calling Victoria Police. Notwithstanding that police intervention (the detail of which is the subject of exploration below), Simpson did not leave the Eumemmering Creek Site.
Additionally, the Commissioner alleges that, whilst exercising a State or Territory OHS right at the Eumemmering Creek Site on 29 and 30 April 2017, Simpson acted in an improper manner in contravention of s 500 of the FW Act. That improper conduct is alleged to have taken the form of his contravening s 499 of the FW Act and his refusal to leave the Eumemmering Creek Site when asked to; and to have arisen by reason of the fact that several Fulton Hogan staff were diverted from their work tasks on the night to address his presence.
Simpson denies having contravened either of ss 499 or 500 of the FW Act by his conduct at the Eumemmering Creek Site on 29 and 30 April 2017. Those denials are multi-faceted and it is important to understand how they are put.
Simpson and the Union accept that there were occupational health and safety requirements that applied to the Eumemmering Creek Site at the time that Simpson was present there. They accept that one such requirement was that all present at the site wear protective safety glasses. They deny that there was any requirement at that time for visitors—or at least anybody not undertaking “night works”—to wear full-length, white protective overalls. They accept that there was a requirement that visitors to the site be escorted at all times by Fulton Hogan personnel, although they maintain that that was an obligation imposed upon Fulton Hogan personnel, rather than visitors.
The respondents also accept that, on the night in question, Simpson was told that he was not permitted to:
(1)be or remain at the Eumemmering Creek Site without full-length, white protective overalls; or
(2)move about the site unless escorted by Fulton Hogan personnel.
They deny that Simpson was asked or told that he needed to wear safety glasses, or was otherwise asked to leave the site for want of wearing any.
In any event, the respondents maintain that any request made of Simpson to:
(1)wear full-length, white protective overalls (or to leave the site in the absence of having any); or
(2)be escorted at all times whilst present at the site by a Fulton Hogan representative,
was not reasonable in the circumstances that endured.
In particular, the respondents maintain that any request made of Simpson that he wear full-length, white protective overalls (or that he leave the site in the absence of having any) was not reasonable because:
(1)he was wearing an orange high-visibility jacket that complied with the minimum standards stipulated in what is known as the Australian and New Zealand Standard 4602.01 (further reference to which is made below);
(2)Fulton Hogan refused or was unable to provide him with full-length, white protective overalls;
(3)the areas of the Site in which Simpson located himself were well-lit;
(4)Simpson was not undertaking any activities that called for the wearing of full-length, white protective overalls;
(5)full-length, white protective overalls are not typically required for night-time road construction works of the kind that were in play at the time; and
(6)had he complied with the request or requests, the exercise of his right of entry would necessarily have been impeded.
Further, the respondents contend that the request made of Simpson that he be escorted by Fulton Hogan personnel at all times whilst present at the Eumemmering Creek Site was not reasonable because that requirement “…is directed (alternatively, principally directed) at what Fulton Hogan staff must do (rather than what a visitor must do), and there is no requirement in it as to the proximity between the visitor and the Fulton Hogan staff member”.
The respondents accept that, whilst in attendance at the Eumemmering Creek Site, Simpson did not wear full-length, white reflective overalls. They do not, however, accept that he was not relevantly escorted whilst there.
The respondents also do not accept that Simpson acted improperly whilst in attendance at the Eumemmering Creek Site. They maintain that, even if it is established that Simpson contravened s 499, that is insufficient in and of itself to constitute conduct in contravention of s 500. Furthermore, they submit that:
(1)the amount of time that Fulton Hogan personnel spent on the night responding to Simpson’s presence was not material;
(2)it was the role of those Fulton Hogan personnel who responded to Simpson’s presence on the night to deal with exercises of rights of entry; and
(3)there was, in any event, no detriment imposed upon Fulton Hogan, in that the works were completed without disruption.
The respondents, pointing to those circumstances, submit that Simpson’s conduct at the Eumemmering Creek Site did not rise to the standard of impropriety to which s 500 of the FW Act is directed.
3.2 The Gate 24 Incident
The Gate 24 Incident is factually and legally straightforward. The Commissioner alleges that, whilst at the gate 24 site (following the 4 May truck accident that occurred there), Clark and Langley were involved in a physical altercation. Specifically, it is alleged that, in response to an attempt by Langley to take a photograph of Clark’s entry permit on his (Langley’s) mobile telephone, Clark grabbed Langley’s telephone out of his hand and threw it onto the ground.
Clark disputes that factual synopsis. He maintains that he did not snatch Langley’s phone and throw it to the ground. He accepts that there was an altercation and that it began with Langley’s attempt to photograph his (Clark’s) entry permit. Clark maintains that he told Langley that he (Langley) was not permitted to photograph the permit, and that he snatched the permit away from Langley as he attempted to take (or, perhaps, shortly after he took) a photograph of it. Langley’s response, so Clark maintains, was to tell Clark that he (Langley) could take a photo of whatever he liked, at which point he proceeded to point his phone directly at (and in close proximity to) Clark’s face. As Langley manoeuvred his phone up into Clark’s face, Clark says that he (Clark) raised his hand defensively, at which point it came into contact with Langley’s hand. As a result of that contact, Langley lost a hold of his phone and it fell to the ground.
The only issue to be resolved is which of the two factual synopses should be preferred. If, as the Commissioner alleges, Clark grabbed Langley’s phone and threw it to the ground, there is no contest that he did so in contravention of s 500 of the FW Act. If he did not grab Langley’s phone and throw it onto the ground, then the contravention in which he is alleged to have engaged will not be established.
3.3 The 4 May excavator inspection
The allegations arising from the excavator inspection that took place on 4 May 2017 at the Gantry Works Site (hereafter, the “Excavator Inspection Incident”) are also relatively straightforward. The Commissioner alleges that, when they resolved to issue the Excavator Notice, Simpson and Clark did not, in fact, suspect or reasonably suspect that there was anything about the excavator or its use that was contrary to the requirements of the OHS Act (or regulations made thereunder).
The Commissioner alleges that Simpson and Clark conducted themselves improperly in contravention of s 500 of the FW Act by:
(1)inspecting the excavator and its log books despite not reasonably suspecting that there was anything about them that was contrary to, or indicative of a contravention of, the requirements of the OHS Act (or regulations made thereunder);
(2)using the occasion as an opportunity to speak to the excavator operator about matters of an industrial nature; and
(3)delaying the completion of the work that was to be performed, which, by its nature, was time-sensitive (as it had to be completed before the scheduled reopening of the left-hand out-bound lane of the freeway).
An alternative case is advanced against Clark. If not directly liable for conduct engaged in in contravention of s 500, the Commissioner alleges that Clark was an accessory to Simpson’s contravention of that section and, hence, is deemed to have contravened it himself by dint of s 550 of the FW Act. That is said to arise from his having intentionally participated in or associated himself with Simpson’s conduct, or from his having aided, abetted, counselled or procured Simpson’s contravention of s 500 of the FW Act.
Simpson and Clark deny that they issued the Excavator Notice—or otherwise undertook the inspection of the excavator and its log books—without first suspecting that there was something about it that was contrary to the requirements of the OHS Act or regulations made thereunder. Each described the excavator’s physical appearance as suggestive that it had not been properly maintained. They gave evidence—and it is their case—that their decision to inspect the excavator and its log books was the product of that suspicion. They placed some reliance upon the fact that, as a result of their inspection, it was discovered that the fire extinguisher in the machine was out of date.
Clark denies that he was party to any discussion with the excavator operator. Simpson accepts that he was but maintains that the discussion pertained to matters of safety. Even if there was some discussion that went beyond matters of safety, Simpson contends that it was not sufficient to constitute impropriety of the kind to which s 500 of the FW Act refers. Although it is accepted that some time was spent inspecting the excavator and its log books—and that, consequently, the excavator was unable to be used whilst those processes completed—Simpson and Clark deny that there was anything improper about that delay.
Clark also denies that he was an accessory to (or was otherwise involved in) any contravention by Simpson of s 500 of the FW Act. He contends that the evidence does not establish:
(1)any knowledge or belief, on his part, that Simpson lacked a reasonable suspicion that there was something about the excavator or its log books that was in contravention of the OHS Act; or
(2)that he aided, abetted, counselled, procured or was knowingly concerned in or party to the discussion that Simpson had with the excavator operator.
3.4 The Gate 3 Incident
The fourth and final aspect of the case that the Commissioner puts also turns upon a relatively straightforward factual contest. It concerns an exchange that occurred between Inkster and Simpson near the boundary of the Gate 3 Site. The Commissioner alleges as follows, namely that:
(1)upon arrival at that area, Simpson proceeded (as he had sought to) to measure the exclusion (or “no-go”) zones behind the crash barriers in place within the Gate 3 Site;
(2)as he proceeded city-bound along them, he came to the outer limits of that site;
(3)at that point, Inkster requested that Simpson stop, as he had not given notice of any suspected occupational health and safety breach pertaining to any work area beyond the Gate 3 Site;
(4)Simpson did not stop, prompting Inkster to walk in front of him and gesture with his hands raised that he (Simpson) had to stop;
(5)Simpson ignored Inkster’s direction, walked around him and continued heading in a city-bound direction;
(6)Inkster again made his way in front of Simpson, and again gestured and told him to stop;
(7)Simpson ignored Inkster a second time and continued his procession along the crash barrier exclusion (or “no-go”) zone;
(8)Inkster then, for a third time, positioned himself in front of Simpson, and gestured and told him that he could not proceed;
(9)Simpson again ignored Inkster and, as he passed for a third time, pushed him, causing Inkster to stumble and fall.
The Commissioner alleges that Simpson’s conduct in physically pushing Inkster as he proceeded past him was improper conduct of the kind that s 500 of the FW Act prohibits. Having been engaged in whilst Simpson was exercising rights in accordance with pt 3-4 of the FW Act, it was, so the Commissioner alleges, conduct in which Simpson engaged in contravention of that section.
Simpson denies that he pushed Inkster. That is the only issue that the court needs to resolve: it is rightly conceded that, if it occurred at all, the physical aggression that is alleged occurred in contravention of s 500 of the FW Act.
3.5 Liability of the Union
The Commissioner contends that all of the conduct that he attributes to Simpson and Clark was engaged in by them in their capacity as employees, officers or agents of the Union; and that, that being so, the Union is deemed also to have engaged in the same conduct by reason of s 793(1) of the FW Act. To the extent that it bears upon any of the issues in dispute, the Commissioner submits that the state or states of mind with which Simpson and Clark engaged in that conduct is, by operation of s 793(2) of the FW Act, taken also to have been the state or states of mind with which the Union is deemed to have engaged in it.
By that process of attribution, the Commissioner alleges that the Union is liable as an accessory for—that is to say, is deemed by s 550 of the FW Act to have also committed—each of the contraventions that Simpson and/or Clark committed.
Insofar as concerns its accessorial liability, the Union made the following written submission:
On the current state of authorities…the [Union] accepts that it can be held liable as an accessory to any contravention found to have been committed by Mr Simpson and Mr Clark. If those authorities are correct (and the [Union] reserves its position should this matter go further), the [Union] does not contend that, on the facts, their actions and states of mind should not be attributed to the [Union].
That was refined in the respondents’ oral closing submissions. The Union accepts not merely that it can be held liable as an accessory to any contraventions in which the court concludes that Simpson and/or Clark engaged; but also that it should be. That, at least, is its position presently: the Union may well submit differently if the matter proceeds beyond the present forum.
PART 4: THE EVIDENCE
The court heard oral evidence from seven witnesses and received documentary evidence in the form of 50 exhibits.
The Commissioner called evidence from five Fulton Hogan employees: Malone, Inkster, Langley, Sullivan and Virant-Bell. Clark and Simpson gave evidence for the respondents.
As might be expected in a matter such as this, where there are issues that turn largely upon which recitation of the facts the court prefers, both sides advanced submissions about the credit of the other’s witnesses, the quality of the evidence that they gave and why the evidence of their own witnesses should be preferred.
It is not necessary that I should embark, at the outset, upon a detailed analysis as to why I have accepted certain parts of the evidence in preference to others. It is, however, appropriate to record at this juncture a general observation about the witnesses from whom oral evidence was received. With minimal exception, all of them impressed as honest and truthful. Although I have rejected, as I have had to, some aspects of the evidence of some witnesses, there is only one respect in which I have considered that evidence was embellished. For the most part, I attribute the evidential conflicts that arose in this matter to imprecise or imperfect recollections, rather than to any want of diligence or candour.
I should also record the court’s consciousness of s 140 of the Evidence Act 1995 (Cth) and, in particular, the statutory expression of the oft-cited Briginshaw test (Briginshaw v Bringinshaw (1938) 60 CLR 336, 361-362 (Dixon J)) for which its second subsection provides. Here, the respondents stand accused of having committed statutory wrongs, in consequence of which they face the prospect of penal sanction. Although proof of their conduct is required only on the balance of probabilities, the court’s satisfaction that that civil standard is met must be and is informed by the nature of the allegations that are put against them, the nature of the proceeding itself and the gravity of the matters that are alleged.
PART 5: THE EUMEMMERING CREEK SITE INCIDENT
For the reasons that follow, I am satisfied that, whilst in attendance at the Eumemmering Creek Site in the evening and early morning of Saturday, 29 and Sunday, 30 April 2017, Simpson contravened each of ss 499 and 500 of the FW Act. Those conclusions rest on the following central findings, namely that:
(1)by his attendance at the site, Simpson:
(a)exercised a State or Territory OHS right (as that term is defined by the FW Act); and
(b)exercised or sought to exercise a right or rights in accordance with pt 3-4 of the FW Act;
(2)Fulton Hogan required that:
(a)those in attendance at the Eumemmering Creek Site wear safety glasses and full-length, white reflective overalls; and that
(b)visitors in attendance at that site be escorted at all times by Fulton Hogan personnel;
(3)upon his arrival at that site, Simpson was asked to (or told that he must) observe those requirements;
(4)those requests were reasonable;
(5)Simpson did not comply with those requests, in that he:
(a)remained at the site despite not wearing safety glasses or full-length, white reflective overalls; and
(b)moved about the site unescorted by Fulton Hogan personnel;
(6)having failed to comply with those requests, Simpson exercised, or continued to exercise, a State or Territory OHS right; and
(7)Simpson conducted himself improperly in the course of exercising, or seeking to exercise, rights in accordance with pt 3-4 of the FW Act.
My reasons for reaching each of those conclusions are set out in the sections that follow. Throughout the remainder of this part of these reasons, references to the respondents should be understood as references to Simpson and the Union (Clark, though also a respondent, does not feature in this aspect of the matter).
5.1 The exercise of a statutory right of entry
On the pleadings, it is not in contest that, in attending at the Eumemmering Creek Site on the evening and early morning of Saturday, 29 and Sunday, 30 April 2017, Simpson:
(1)exercised, or sought to exercise, a “State or Territory OHS right” of a kind to which s 494(2) of the FW Act refers; and
(2)exercised, or sought to exercise, a right in accordance with pt 3-4 of the FW Act.
The respondents did not suggest that the latter reality should, of necessity, preclude a finding that Simpson acted in contravention of s 499 of the FW Act. In the absence of such a contention, I proceed on the apparently uncontroversial basis that it does not.
In the absence of contest, then, those assertions are accepted. I pause, nonetheless, to note that they sit uneasily with much of the evidence that was led. There was, to say the least, fertile ground for suspecting that Simpson in fact did not reasonably suspect—at least not before he gained access to the site—that there were works being undertaken there in contravention of the OHS Act or the regulations made under it.
Prior to his attendance at the Eumemmering Creek Site on the evening in question, the only cause that Simpson appears, from the evidence, to have had to suspect that there might have been a genuine occupational health and safety concern there arose from:
(1)two anonymous communications made via a website (which it appears were then automatically emailed to the Union) on 6 April 2017;
(2)a visit that he made to another part of the Project later that day; and
(3)an anonymous telephone call that he received in the days prior to 29 April 2017.
Each of the two anonymous written communications appears to have been made from a device or devices connected to the internet via the same internet protocol address. One was (or appears to have been) made six minutes after the other. Both were (or appear to have been) made more than three weeks before the cross-head lift was scheduled to take place at the Eumemmering Creek Site. The first of those communications read (errors original):
Hi my names [redacted] I've been apart of the Cfmeu since day dot .Atm I'm working out on the Monash freeway for connect people on Fulton hogan job site .We need a Cfmeu organiser to come to this site and sort it out for us workers we need your help .We are all getting paid under and the job site is unsafe .If I didn't need to work so paid to pay the bills I wouldn't be here please here me out and come help us Cfmeu brothers
The second read (errors original):
I am a Cfmeu member and I'm working out on the Monash freeway from pakenham to Warragul road the job is fucked we are not getting paid right the job is unsafe and us boys have been forced to sign with awu without signing papers or nothing it's a fucking joke
We haven't been giving our pay rise like we where promised
As is apparent, neither made any reference to the Eumemmering Creek Site, nor to any specific safety concerns with the Project. Both were received on the same day that Simpson first attended at Fulton Hogan’s Belgrave-Hallam Road Project office, and ahead of an inspection that he and another official of the Union then undertook at a different work site within the Project. Whilst at that other site, Simpson uncovered evidence of what he considered were various safety violations or concerns, which he later documented in an internal “safety audit” report. Notwithstanding the apparent gravity of its content, he did not share that report with anybody from Fulton Hogan. A few days following that visit of 6 April 2017, Simpson suggested to Langley that Fulton Hogan should hire (or perhaps appoint) a “union safety rep” for the Project.
A couple of days prior to 29 April 2017, Simpson received a telephone call from what he described as a “private number”. The caller said to him words to the effect of, “You don’t know me. We’ve got a lift happening down the Fulton Hogan Monash Freeway job on Saturday night. They’re going to be working over water. Can you come down and poke your head in?” By way of elaboration, the caller explained that, “We’re working over water. I don’t think things will be right. We’re too scared to stand up.” Under cross-examination, Simpson explained (or presumed to explain) that the caller “…didn’t really want to go into details”.
Simpson’s evidence was that, on the evening of 29 April 2017, he “…had some safety concerns about the – the lads working over the water on the barge”. He attributed those concerns to the anonymous telephone call that he had received a few days earlier. He did not particularise what they were and there is no other evidence before the court that illuminates a reasonable basis upon which Simpson might have suspected, prior to his arrival on 29 April 2017, that there were works that had occurred or were occurring at the Eumemmering Creek Site in contravention of the requirements of the OHS Act or regulations made under it.
That, presumably, reflects the fact that it was not in contest that, by attending at the Eumemmering Creek Site, Simpson exercised a State or Territory OHS right. Why, it might fairly be asked, would it be necessary to lead any evidence to establish the reasonable suspicion upon which his exercise of that right proceeded when the legitimacy of that exercise was not in contest? The short answer is that it wouldn’t be. Nonetheless, the issue was explored and the evidence that arose from that exploration seemed to pose as many questions as it answered.
The right conferred by s 87(2) of the OHS Act to enter particular premises is conditioned upon (amongst other things) the formation of a suspicion that something has happened or is happening there in contravention of the requirements of the OHS Act or the regulations made under it. The mere possibility that such an event might have occurred, might be occurring or might occur is not sufficient. The section does not empower authorised representatives to commit what would otherwise amount, at least in some cases, to an act of criminal trespass—a topic to which I shall shortly return—merely in order to satisfy themselves that work is occurring safely. It does not authorise a representative to “come down and poke [his or her] head in”.
The Commissioner, Simpson and the Union must be (and are) presumed to have had a proper basis for alleging and accepting that Simpson was, on the night in question, exercising or seeking to exercise a State or Territory OHS right (and, concomitantly, that his doing so was premised upon a suspicion of the kind that enlivens the relevant rights for which the OHS Act provides). That that basis might not now be apparent—indeed, appears to be somewhat questionable—on the strength of the evidence before the court is not a sufficient reason to reject the contention.
I pause, momentarily, to note (again) that the Commissioner’s pleaded case (and the respondents’ defence) was that Simpson was, “…at all material times during [his visit to the Eumemmering Creek Site]…exercising, or seeking to exercise, a State or Territory OHS right” (emphasis added). That plea adds an unnecessary layer of complication by which neither side appeared to be troubled. Section 499 of the FW Act cannot be contravened by conduct engaged in by a permit holder seeking to exercise a State or Territory OHS right. Given the manner in which the case was run, I proceed upon the basis that Simpson must be understood to have been exercising, throughout his attendance at the Eumemmering Creek Site, a State or Territory OHS right.
5.2 OHS requirements that applied at the Eumemmering Creek Site
Although there was evidence led about at least one other, there are only two occupational health and safety requirements that are relevantly alleged to have applied at the Eumemmering Creek Site. The first concerns the wearing of PPE; the second concerns the requirement that visitors be escorted whilst in attendance at the site.
I address each in turn below.
Ahead of that analysis, I should make some attempt to define what is contemplated by the phrase that appears in s 499 of the FW Act, “occupational health and safety requirement that applies to the premises”. The purpose of that section is apparent enough: it is designed to ensure that permit holders who exercise a “State or Territory OHS right” at a particular site do so whilst observing, at least to an extent that is reasonable, the health and safety precautions with which the occupier has a right to require that others comply.
On the natural meaning of its words, the phrase “occupational health and safety requirement that applies to the premises” contemplates (at the least) obligations:
(1)that are genuinely calculated to reduce the risks to health or safety to which those in attendance at particular premises might be exposed;
(2)that are imposed by the occupier of the premises upon those who gain access thereto; and
(3)upon the observance of which the occupier conditions (or, absent a statutory right of entry, would condition) its grant of such access, or has (or would normally have) some other means of enforcing.
In the present case, the first of those characteristics is not in doubt. There is no suggestion that the requirements with which the Commissioner alleges that Simpson was asked to comply at the Eumemmering Creek Site were not genuinely directed to the promotion of good health or safety. At issue is whether they were requirements at all.
To qualify in that regard, it is not necessary that an occupational health and safety directive should find prior expression in any written instrument, such as a safety plan or policy that pertains in some way to particular premises: Darlaston v Parker (2010) 189 FCR 1, 27 [101] (Flick J). There is no obvious reason why an occupier’s request should, if it is to fall within the contemplation of s 499 of the FW Act, be one that applies generally to all others in attendance at the particular site. Plainly enough (and for the purposes of s 499 of the FW Act), a request for compliance with one that doesn’t might more readily be impugned as unreasonable; and a requirement that applies only selectively might more easily be impugned as one that isn’t genuinely calculated to reduce exposure to health or safety risks. Nonetheless, conduct upon which an occupier insists in order to promote safety or good health at particular premises is likely to be conduct that reflects an “occupational health and safety requirement that applies to the premises”, no matter how narrow its scope or recent its creation.
Fortunately, the circumstances that present here don’t require analysis descending to that level. There is no suggestion presently that any of the requirements with which Simpson was asked to comply were requirements that were imposed (or sought to be imposed) selectively upon him. Likewise, there is no suggestion that they were imposed (or sought to be imposed) upon a whim. At issue presently is whether the requirements with which Simpson was asked to comply were, in fact, requirements applicable at the site at all. For the reasons that follow, I am satisfied that they were.
5.2.1 PPE requirements
Although many PPE rules appear to have been in place at the Eumemmering Creek Site, only two are of present significance. One of them—that those in attendance at the site wear safety glasses—is not in contest and the evidence, in any event, establishes it plainly enough (I shall refer to that requirement, hereafter, as the “Safety Glasses Requirement”).
The other concerns the wearing of full-length, white reflective overalls. As is set out above, the respondents deny that there was a requirement in place at the Eumemmering Creek Site that visitors who were not involved in the performance of “night work activities” or “night works” should wear full-length, white reflective overalls. The references to those terms—“night work activities” and “night works”—will shortly become apparent.
The evidence as to the PPE requirements that Fulton Hogan enforced (or sought to enforce) throughout the Project was not materially in contest. In the main, those requirements arose as a function of both statute and contract. As to the latter, they arose in consequence of the terms of Fulton Hogan’s contract with VicRoads, which incorporated a number of terms stipulating the safety conditions that Fulton Hogan was bound contractually to oversee in connection with the Project. As to the former, they arose in consequence of Fulton Hogan’s status as the occupier of the various premises upon which the Project works took place and the obligation imposed upon it as such by the OHS Act (and regulations made thereunder). To assist in the discharge of that obligation (and its obligations more broadly to impose and enforce safe systems of work), Fulton Hogan adopted a comprehensive Occupational Health and Safety Plan that applied throughout the Project.
That plan (hereafter, the “OHS Plan”) stipulated, amongst other things, a number of relevant conditions that applied throughout the Project’s work areas (including, relevantly, the Eumemmering Creek Site). The OHS Plan listed the “[m]inimum PPE and clothing required for this [P]roject”. Two such requirements were “[s]afety glasses” and “[f]ull length white reflective overalls with biomotion stripes…for all night work activities in operational areas”. The latter requirement reflected a condition contained within Fulton Hogan’s contract with VicRoads; specifically, that “[f]ull length white reflective overalls…be worn by all personnel undertaking night works”.
The respondents made much of the fact that Simpson was not engaged in “night work activities” or “night works”. Although there was some contest in the evidence, it seems to be accepted—and, in any event, I do not doubt—that the Eumemmering Creek Site (or at least some of the parts of it into which Simpson ventured whilst there) qualified as an “operational area” (or areas).
The OHS Plan did not define “night work activities”. I do not consider it necessary to embark upon a careful parsing of the terms in which the OHS Plan expressed the requirement. If “night work activities” (or the equivalent term that was contained within the VicRoads contract: “night works”) should be understood to mean “construction works performed at night” (or some analogue thereof), then the most that might flow in consequence is that the requirement that Simpson wear full-length, white reflective overalls was not one that found expression in (or that arose by reason of) the OHS Plan. For reasons already identified, that does not mean that it wasn’t an occupational health and safety requirement that applied at the site.
On the contrary, it quite plainly was. Inkster’s evidence was that visitors who attended at Fulton Hogan’s Project sites—including “…VicRoads, WorkSafe, Transurban [and] time-lapse photographers”—were provided with white overalls. Virant-Bell said that the requirement that white overalls be worn at the site applied to “[e]veryone, visitors and workers included”, without exception. Even assuming, momentarily, that it went above and beyond what the OHS Plan required, it nonetheless qualified as an occupational health and safety requirement that applied at the site. It was something that was self-evidently directed to the promotion of good health and safety at the site; and it was something that Fulton Hogan required (both generally and, in the case of Simpson, specifically).
In any event, I do not accept that the respondents’ construction of “night work activities” (or the equivalent phrase that is found within Fulton Hogan’s contract with VicRoads: “night works”) is fair. Respectfully, I do not accept that Simpson could not properly be understood to have been a person that was conducting night works. On the ordinary meaning of those words, work activities undertaken within the Project at night seem, fairly obviously, to qualify as night work activities (or night works). There is no reason why the term should be understood as limited to construction works, or as excluding the work (or work activities) of managers or visitors who might have occasion to undertake their work tasks at the Project’s sites at night.
The contrary construction would lead to potential absurdity. It would contemplate that the OHS Plan might require that those engaged in construction works at night should wear full-length, white reflective overalls; but that those who observe them as visitors, including in proximity to the same hazards against which the requirement of high-visibility clothing is so obviously designed to protect, need not.
There is, with respect (and contrary to the respondents’ contention), no doubt that Fulton Hogan required personnel—including visitors—in attendance at the Eumemmering Creek Site during night periods to wear full-length, white reflective overalls (a reality that I shall refer to, hereafter, as the “White Overalls Requirement”).
5.2.2 The requirement that visitors be escorted
Section 12.1 of the OHS Plan was entitled “Site induction”. It relevantly provided as follows (emphasis added):
Upon commencement on site, all persons attending the site, including employees, subcontractors, delivery drivers and visitors, shall receive a site induction that covers the relevant sections of the [OHS Plan] according to their site exposure. They shall have an opportunity to provide feedback (including concerns or improvements) during the induction.
The inductions will address:
•Ensuring all workers on site have completed construction induction training. Visitors to the site shall be escorted at all times and will not be required to have completed the construction induction training unless they are to undertake work on site.
…
The respondents contend that the requirement to which the second passage emphasised above gave voice was one imposed upon Fulton Hogan employees rather than upon visitors: that is, that Fulton Hogan employees were obliged to escort at all times those visiting Project sites, whereas visitors could venture around them as they pleased. Respectfully, that cannot be accepted. Indeed, the proposition need only be stated in those terms to be exposed for the misconception that it is.
On any view, the requirement (hereafter, the “Escort Requirement”) applied as much to those who visited Project sites as it did to those who had a capacity to escort them during those visits. Visitors were obliged not to venture anywhere within Project sites without a Fulton Hogan escort.
5.3 The requests that were made of Simpson
The respondents accept that Simpson was asked to (or told that he must), whilst at the Eumemmering Creek Site, comply with each of:
(1)the White Overalls Requirement; and
(2)the Escort Requirement.
It is also accepted that those representations were made for and on behalf of Fulton Hogan. Whether or not Simpson was also asked to (or told that he must) comply with the Safety Glasses Requirement during his visit remains in contest as between the parties.
I am satisfied that Simpson was asked to (or told that he had to) wear safety glasses whilst in attendance at the Eumemmering Creek Site. Malone gave evidence to that effect: specifically, that Inkster told Simpson (in Malone’s presence) that, in order to be at the site, he needed to wear appropriate PPE, including “safety glasses” and “overalls”. Simpson himself had no recollection of any such representation having been made to him. Inkster could not recall whether he specifically mentioned safety glasses as part of the suite of PPE that he told Simpson that he (Simpson) needed to have in order to be at the site.
Little can fairly be made of Simpson and Inkster’s degraded memories. Both acknowledged that there was a discussion on the night about Simpson not having the required PPE. One might readily expect that their recollection of the particulars of that discussion might fade over time, as it appears to have. Regardless, Malone gave positive evidence about what was said to Simpson. That part of his evidence was not challenged during his cross-examination and no other witness disputed it.
The respondents invited the court to reject, for want of a safe evidential basis, the contention that Simpson was asked to (or told that he had to) wear safety glasses at the Eumemmering Creek Site. That invitation is declined. In light of the evidence summarised above, I have little hesitation in accepting that Simpson was asked to (or told that he must) comply with the Safety Glasses Requirement whilst present at the Eumemmering Creek Site (I shall refer to that request, hereafter, as the “Safety Glasses Request”).
5.4 The reasonableness of the requests
I am also satisfied that all three relevant requests—specifically, that Simpson comply with each of the Safety Glasses Requirement, the White Overalls Requirement and the Escort Requirement—were reasonable in the circumstances.
The respondents did not contend that any request made of Simpson that he comply with the Safety Glasses Requirement was unreasonable. I consider that it was reasonable. I am drawn to that conclusion not merely because eye protection is, fairly obviously, a matter of good practice at any work site of the kind presently in consideration. Fulton Hogan had an obvious and important interest in enforcing applicable occupational health and safety standards at its sites (see, in a similar vein, the analysis below at section 5.4.3.8). The fact that Simpson could not simultaneously comply with the requirement and exercise his statutory rights is not unimportant (as to which, see the analysis at section 5.4.3.6 below); but, given the purpose of the requirement and the nature of the matters in respect of which Simpson sought to exercise his rights (both of which are analysed in more detail at sections 5.4.3.9 and 5.4.3.10 below), the better view is that the Safety Glasses Request was a reasonable request for the purposes of s 499 of the FW Act.
It is convenient to consider in turn the reasonableness of the other two requests. It is, in each case and generally, informed by a preliminary observation about the state of Simpson’s knowledge of the occupational health and safety requirements that applied at the Eumemmering Creek Site. It is to that issue that attention should first turn.
5.4.1 Simpson’s knowledge of the OHS Plan
The respondents submitted that the reasonableness of the requests that were made of Simpson should be assessed in light of the fact that he was not familiar with Fulton Hogan’s OHS Plan (which served as the—or a—documentary source of the requirements in respect of which the requests were issued). The Commissioner, in contrast, submitted that Simpson’s familiarity with that document is immaterial and that the reasonableness of the requests that were made of him is not informed by his state of mind.
In Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, White J summarised what must be shown in order to implicate a person as an accessory to another person’s statutory contravention:
[176] Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. …
[177] Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506–7 by Wilson, Deane and Dawson JJ …
[178] The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503; at [324]–[325].
[179] As indicated, these principles are not in doubt. The more difficult question arises from their application to the circumstances of this case and, in the identification of the essential facts about which an accessory must have actual knowledge.
Those observations were quoted with apparent approval in Fair Work Ombudsman v Hu (2019) 289 IR 240, 245-246 [15] (Flick and Reeves JJ).
In order that he might be understood to have been “involved in” any contravention by Simpson of s 500 of the FW Act, the Commissioner would need to show that Clark had knowledge that Simpson’s conduct was improper. Impropriety was one of the “essential matters” upon which Simpson’s contravention would have turned had it transpired. If Clark was unaware (or did not appreciate or think) that Simpson’s conduct was relevantly improper—if, for example, he was of the view that it was appropriate—it must follow that he cannot fairly be implicated as an accessory to Simpson’s misconduct.
To say so is not to suggest that Clark required knowledge that what Simpson was doing was being done in contravention of s 500 of the FW Act. An accessory need not know that the conduct of a primary wrongdoer amounts to a contravention of the law. Rather, an accessory must do something—that is, must engage in an act or omission sufficient to implicate them in the conduct of the primary wrongdoer—whilst armed with knowledge of the essential matters that render that conduct unlawful. In the context presently under consideration, one such matter is (or, but for my conclusions above, would have been) that Simpson acted improperly.
Even assuming that Clark might be understood to have known that, throughout the Excavator Inspection Incident, Simpson was a permit holder and was exercising or seeking to exercise rights in accordance with pt 3-4 of the FW Act, I do not accept that he can be said to have known that Simpson’s conduct was improper. It was not put to him that he did. Rather, the court was invited to infer the existence of that knowledge (or that state of belief) from his concessions that he would, hypothetically, have considered it improper for a permit holder to:
(1)issue a notice under s 88(1) of the OHS Act without reasonably suspecting a contravention of the act (or the regulations made under it); and/or
(2)hold a discussion with a worker about matters of employee entitlements or union assistance, rather than issues relevant to safety.
Those acknowledgements are not (or would not have been) sufficient to establish in Clark’s mind what I consider would need to be a state of belief that Simpson was acting improperly. The accessorial case against Clark would have failed in any event for that reason.
7.5 Conclusion
I do not accept that the Commissioner has made out any of the contraventions that he alleges in respect of the Excavator Inspection Incident.
PART 8: THE GATE 3 INCIDENT
The Commissioner alleges that Simpson contravened s 500 of the FW Act by his conduct during the Gate 3 Incident. The only issue in dispute is whether Simpson did what the Commissioner alleges that he did; that is, whether Simpson physically pushed Inkster as he proceeded to check the exclusion (or “no-go”) zones behind the crash barriers that were in place at the Gate 3 Site. The respondents (which, for the purposes of this part of these reasons, should be understood as a reference to Simpson and the Union), during the oral closing submissions that were advanced on their behalf, properly conceded that, if Simpson did what he is alleged to have done, then he will have acted improperly in contravention of s 500 of the FW Act.
For the reasons that follow, I am satisfied that Simpson did what he stands accused of doing.
8.1 The evidence
Three witnesses gave evidence directly relevant to the Gate 3 Incident. It is necessary to set out that evidence in some detail.
8.1.1 Inkster’s evidence
Inkster told the court that, after taking Simpson out to the Gate 24 Site, he, Langley and Simpson drove back to Fulton Hogan’s nearby Belgrave-Hallam Road Project office. Whilst there, Simpson indicated that he wished to check the exclusion (or “no-go”) zones throughout other areas of the Project. After nominating a number of areas that didn’t exist, he happened upon “gate 3”, which did. He wrote out a notice of suspected contravention under s 88 of the OHS Act pertaining to that gate, whereupon he, Inkster and Langley drove out to that site.
Upon arrival at the Gate 3 Site, Simpson began to check that the exclusion zones behind the crash barriers in place there were of a suitable depth. He proceeded in a city-bound direction, checking the bollards that marked out the exclusion zones as he went. Langley and Inkster followed him a few metres behind.
As had occurred earlier at the Gate 24 Site, Simpson eventually came to the limits of the Gate 3 Site. The crash barriers (and the exclusion zones adjacent to them) continued beyond that boundary into the next work site. As he had done at the Gate 24 Site, Simpson sought to continue to check the depth of the exclusion zones beyond the limits of the site that was the subject of the notice that he had issued under s 88 of the OHS Act.
It was at that point that Inkster stepped in and attempted to stop him. He told Simpson, “You can’t leave this area”. He walked from his position a few metres behind Simpson to a position immediately in front of him. With his hands raised so as to signal to Simpson that he should stop progressing along the crash barriers, he said “James, you can’t keep walking up the worksite. The safety notice doesn’t allow for you to go there.”
According to Inkster, Simpson responded, “No, I’m going to keep going [and] I want to continue and check the bollards up there” (apparently referring to an area beyond the limits of the Gate 3 Site). He walked passed Inkster and kept progressing along the crash barriers. Inkster told the court that he again “chased” Simpson, walked around him and said, “You’ve got to keep – you can’t keep walking up the worksite. You’ve got to stop. You’re not following a direction.”
Inkster told the court that Simpson, apparently undeterred, walked around him again and continued to progress along the crash barriers. Inkster then went around him a third time and said, again, “James, you’ve got to stop.” His evidence continued:
At that point in time, James pushed past me with his arm. I stumbled and fell into, like, a pile of dirt, if you will.
Under cross-examination, Inkster said that, in response to Simpson’s attempt to venture beyond the limits of the Gate 3 Site, he said to Simpson, “James, your safety notice relates specifically to gate 3. You can’t just wander off through the work site. Okay? We’ve checked gate 3. There’s no issues. Get back in the car.” He told the court that, at the point that Simpson made contact with him, Langley was approximately 10, perhaps 20, metres away. It was put to him that Langley was in his vehicle at the time, which Inkster denied.
Inkster accepted that he did not make any mention of Simpson’s having physically pushed him at the Gate 3 Site in any documents that he subsequently prepared in relation to Simpson’s visit to the Project on 9 May 2017. There were four such documents. The first was a file note in which he recorded the events of that day. The second and third were emails that were sent that afternoon to various Fulton Hogan management representatives. The fourth was an internal Fulton Hogan record entitled “Right of Entry Checklist”. I will return to those documents momentarily.
8.1.2 Langley’s evidence
Langley’s evidence about what transpired at the Gate 3 Site was largely (though not entirely) consistent with Inkster’s. He told the court that, after he came to (or approached) the city-side boundary of the Gate 3 Site, Simpson attempted to continue towards the city. At that point, “Matt [Inkster] tried to stop him from going up there by standing in his way, saying ‘You’ve finished in gate 3’”. According to Langley, Simpson told Inkster that he wished to continue measuring the exclusion zones further along the crash barriers. Langley’s evidence was that “[Simpson] pushed [Inkster] aside, got past him, Matt got back in front again and this happened on two more occasions. And then I actually said to Matt, ‘Let him go. Hop in the car. We’ll follow him. We can’t leave him walk up the job on his own. He’s still our responsibility.’” He and Inkster then followed Simpson in their vehicle as he (Simpson) proceeded to check the depth of the exclusion zones further along the crash barriers.
At the point that Inkster made his three attempts to stop Simpson from venturing beyond the limits of the Gate 3 Site, Langley was (according to him) standing a couple of metres behind them.
Under cross-examination, Langley told the court that Simpson pushed Inkster “…on at least three occasions”. He declined repeated invitations to resile from that evidence.
8.1.3 Simpson’s evidence
Simpson’s account of what occurred at the Gate 3 Site was somewhat different. He told the court that, upon arriving at that site, he proceeded to check the exclusion zones adjacent to the crash barriers that were there in place. Invited by counsel to do so, he impressed upon the court that many of the bollards by which those zones had been established were placed too close to the crash barriers, prompting him to relocate them as he progressed along the corridor. Inkster and Langley refuted that evidence but nothing turns on that (overall, somewhat gratuitous) evidential conflict.
Simpson recalled a point at which Inkster “…came over and said, ‘See, mate, you’re now leaving gate 3.’”. His evidence continued:
What did you say?---I don’t believe I’m leaving gate 3, you know. And then he goes, no, you’re leaving. I said, all right. Well, I’ll roll one out for gate 4. No, that’s not gate 4. Well, I tried to roll one out for gate 2. If it’s not gate 2 or gate 4 – because I’m thinking that the – the gates are numerological. Is that the right word? Sorry. Then it must still be gate 3. I’m – I’m going to continue. At that point, Mr Inkster got in front of me and goes, “No, you can’t continue. You’re – you’re leaving gate 3.” I said no, and I’ve walked around him. He has then done it again. I walked around him again. The third time, Mr Inkster has actually grabbed my book and said, “See, mate, we’re not going anything further. You’re leaving gate 3.” I said, “Really?” Got out me phone to film him – at that point, he’s given me his book back, and I’ve walked around him and continued.
Okay. And at any point, did either of you touch the other one?---No.
Do you have a recollection of where Mr Langley was at this point?---Mr Langley was still in the car.
And how far away was the car from where you and Mr Inkster were?---If I was down here, Matthew was in front of me. Gordon was in the car. He would have easily been 20 metres away.
Simpson’s reference to “roll[ing] one out” was a reference to his preparing a notice under s 88 of the OHS Act.
Under cross-examination, Simpson denied that he had physically pushed Inkster. He maintained that, on the third occasion on which Inkster indicated to him that he should not proceed further along the crash barriers, he (Inkster) “…grabbed my book and [said], words to the effect, ‘That’s enough. No more.’”. His evidence continued:
I’ve grabbed out my phone and filmed him, because I felt threatened. I said, “No, you’re not taking my book”, you know, words to the effect. And he passed my book back and I walked around him and continued.
8.1.4 Resolution of the evidential conflict
I prefer the evidence of the Commissioner’s witnesses over Simpson’s. I am satisfied, on the balance of probabilities—informed by the nature of the present proceeding and the gravity of what is alleged—that Simpson physically pushed Inkster whilst present at (or near) the Gate 3 Site. I accept that contact was made and that it was more than incidental or unintended.
I do not accept that Simpson pushed Inkster three times, as Langley claimed. Inkster did not give that evidence and Simpson, plainly, denied that he had pushed Inkster at all. Despite the respondents’ invitation, I do not attribute Langley’s account to any tendency on his part to exaggerate his evidence or any reluctance to make reasonable concessions. I did not observe that he had any such tendency or reluctance. The variance in his evidence (as compared with Inkster’s) is likely explained by the fact that he was some distance away from Inkster and Simpson at the relevant times, and that Simpson was faced away from him. It is not difficult to understand how Simpson’s efforts to proceed past Inkster despite Inkster’s attempts to stop him might have appeared, from Langley’s vantage point, to involve physical contact.
I accept Langley’s evidence that he was standing a couple of metres behind Inkster and Simpson, at least at the point that Inkster made his attempts to stop Simpson from progressing along the crash barriers. Simpson’s evidence was that Langley was in his vehicle at the time but, given that Langley was not in front of him, I prefer the evidence of Inkster and Langley, both of whom said that he (Langley) was on foot. Inkster’s evidence was that Langley was “10, 20 metres” away when Simpson made contact with him. That is consistent with Inkster having walked around Simpson—away from Langley—in an effort to stop him (Simpson) from progressing.
The respondents made much of the fact that Inkster did not record that Simpson had physically pushed him in any of the four documents that he subsequently prepared in relation to the events of 9 May 2017. It was suggested that, had events transpired in the manner about which he gave evidence, he would surely have made a point of recording as much in those documents. That submission is not without force but I am not persuaded that it should warrant my rejection of Inkster and Langley’s evidence.
The two emails contained nothing more than a summary statement of “the Union” having visited “the Site” and Inkster’s intention to discuss what occurred with the Commissioner’s staff (in the context of a meeting that appears to have been scheduled or at least in contemplation). The file note did not squarely record that Simpson had physically pushed Inkster; but Inkster did record that Simpson “pushed past [him]”. The “Right of Entry Checklist” document, as its name suggests, recorded a series of yes/no questions concerning the statutory requirements that Simpson exercised or sought to exercise. The final section of that document contained a space for some notes, which Inkster used to record the following (errors original):
CFMEU James Simpson attended site to inspect barriers. Whilst at site James Simpson refused to follow direction or follow site safety protocols. Worksafe were contacted. Matt Inkster refused to accept further safety notices from James. ABCC were notified.
Plainly, Inkster did not record in the checklist the physical interaction about which he gave evidence (and around which this aspect of the present matter revolves). I am not persuaded that much hangs on that. The checklist is, on its face, a document that is designed to assist Fulton Hogan managers in understanding when it is that permit holders are entitled to enter premises. Each of the questions that it poses touches upon a condition that a permit holder must satisfy in order validly to exercise a right in accordance with pt 3-4 of the FW Act. The document is split into sections, each pertaining to the different species of rights recognised under the FW Act. The section of relevance presently is headed, “Part 4: Entry to Investigate a Suspected Safety Contravention (Excluding WA)”. It poses a series of questions, namely: “Has the union official produced a Federal Right of Entry Permit…[?]”, “Has the union official produced a…WorkSafe notice of Suspected Contravention…[?]”, “Has the union official complied with reasonable security and safety requirements that apply within the workplace…[?]” and “Does the relevant union have the right to represent workers on site…[?]”. The document is directed toward whether rights of entry exist, rather than the conduct in which a permit holder engages when exercising or seeking to exercise one. Inkster’s comments at the conclusion of the document are in that same vein. His failure to record within them the physical contact that is presently in focus is thus explicable. That failure does not warrant the rejection of his evidence.
Simpson’s evidence, on the other hand, gave pause for at least some concern. Under cross-examination, his evidence was that Inkster, when attempting for a third time to stop him from progressing beyond the boundary of the Gate 3 Site, grabbed a book that he was carrying at the time. In response, Simpson claimed to have taken out his phone and filmed Inkster, apparently “…because [he] felt threatened”. The suggestion that Inkster grabbed Simpson’s book, or that Simpson took out his phone and began filming was not put to Inkster or Langley. The notion that Simpson had felt “threatened” sits most uneasily with the impression that I formed of him from his time in the witness box. Simpson presented as a person of conviction and self-belief; a man possessed of a keen sense of the rights conferred upon him by the enactments presently within contemplation and an even keener determination to ensure that he should exercise them so as to ensure that work at the Project occurred safely. Although, substantively, it doesn’t matter if he was, I do not accept that Simpson felt threatened. That aspect of his evidence was embellished.
There are other bases for rejecting other parts of his evidence. Simpson told the court not only that he did not physically push Inkster but also that Inkster did not fall. It might well be that Simpson did not see Inkster fall, perhaps because he continued beyond Inkster’s position and/or maintained his focus upon progressing along the crash barriers that he was there to inspect. Regardless, I reject that evidence. I accept, as Inkster testified, that Inkster was physically pushed and that he fell as a result.
The respondents also pointed to Inkster’s concession that he did not contact the police in response to Simpson’s having pushed him. Respectfully, almost nothing can be made of that. Although no attempt was made to explore with Inkster why it was that he did not contact the police, it is not difficult to conceive of reasons why he might have opted not to—particularly in light of the experience that he had had with them only days earlier at the Eumemmering Creek Site. His failure to prosecute a complaint against Simpson is of no moment.
8.2 Conclusion
None of the other elements that the Commissioner must prove in order to make out the case that he advances against Simpson is in dispute. Satisfied, as I am, that Simpson physically pushed Inkster as Inkster alleged, it follows that his (Simpson’s) conduct was engaged in in contravention of s 500 of the FW Act.
PART 9: THE LIABILITY OF THE UNION
As is outlined above, the Commissioner asserts and the respondents accept that the Union should be found to have been involved in (within the meaning attributed to those words by s 550(2) of the FW Act) the statutory contraventions that Simpson committed; and, thereby, to have itself committed those same contraventions.
That accessorial liability is said to have arisen by dint of the fictions to which s 793 of the FW Act (above, [52]) gives effect. For present purposes, the Union is taken to have engaged in the same conduct as that in which Simpson engaged; and to have done so with the same states of mind as those that Simpson possessed when he engaged in it. As it is not a “permit holder” for the purposes of pt 3-4 of the FW Act, the Union could not itself have directly contravened either of ss 499 or 500 of the FW Act: Australian Building and Construction Commissioner v Harris [2017] FCA 733, [37]-[51] (Siopis J). In order that it might have done so as an accessory, it must be understood to have done something—that is, to have engaged in some act or omission—by which it can be thought to have associated itself with Simpson’s contravening conduct: Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299, 308 [26] (Tamberlin, Gyles and Gilmour JJ).
As I did during oral submissions, I confess some doubt that that process of association might occur merely through the application of s 793(1) of the FW Act. Equally—and assuming that, in each case, the Union might be thought to have engaged in conduct sufficient to implicate it in Simpson’s conduct—questions abound as to how the Union might be thought to have possessed knowledge of the essential elements of the contraventions that have been established as against Simpson. In saying so, I should acknowledge that there is persuasive authority that holds (in each sense) that it might: Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393, 418 [121] (Charlesworth J). Although, at the time of the trial, there was no binding appellate authority on the point, there now is: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203, [36]-[53] (Reeves and O’Callaghan JJ, with whom Charlesworth J agreed).
In the absence of argument on the point (see above, section 3.5), I needn’t indulge the curiosities referred to above; and, indeed, am bound in any event by the full court’s recent observations. I accept that, having engaged in the same conduct as that in which Simpson engaged—and having done so with the same states of mind as he possessed at the times that he engaged in it—the Union was involved in (and, thereby, is taken to have itself also committed) the contraventions of ss 499 and 500 that Simpson committed. By way of summary, then, the Union:
(1)contravened s 499 of the FW Act by means of its involvement in Simpson’s contravention of that section at the Eumemmering Creek Site in the evening and early morning of Saturday, 29 and Sunday, 30 April 2017;
(2)contravened s 500 of the FW Act by means of its involvement in Simpson’s contravention of that section at the Eumemmering Creek Site in the evening and early morning of Saturday, 29 and Sunday, 30 April 2017; and
(3)contravened s 500 of the FW Act by means of its involvement in Simpson’s contravention of that section at the Gate 3 Site on 9 May 2017.
PART 10: NEXT STEPS
The matter should be dismissed insofar as concerns Clark. In light of s 570 of the FW Act, it seems unlikely that the court will be troubled by an application on his part for costs; but, if that is wrong, he shall be at liberty to make an application in that regard in the usual way.
The court’s having accepted that some of the contraventions that the Commissioner alleges against the other respondents were committed, the matter must proceed to further hearing on the question of what relief should be granted in light of those findings.
I will make orders reflecting that course.
I certify that the preceding three hundred and twenty-nine (329) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 2 December 2020
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