Australian Building and Construction Commissioner v Hanlon
[2020] FCCA 3409
•16 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v HANLON & ORS | [2020] FCCA 3409 |
| Catchwords: WORDS AND PHRASES – Fair Work Act 2009 – acting in an improper manner. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 481, 484, 486, 487, 489, 490, 500, 512, 518, 539, 546, 793 |
| Australian Building and Construction Commissioner v CFMEU (Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473 Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2017) 251 FCR 528 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Director of theFair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 Australian Building and Construction Commissioner v Harris [2017] FCA 733 Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393 Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500 |
| Applicant: | AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
| First Respondent: | REBEL HANLON |
| Second Respondent: | BRIAN PARKER |
| Third Respondent: | CONSTRUCTION, FORESTRY, MINING & ENERGY UNION |
| File Number: | SYG 2231 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 26-28 July 2016, 25 October 2016, 9 November 2017 |
| Date of Last Submission: | 2 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms S. Talbert and later Mr M. Seck |
| Solicitors for the Applicant: | Bartier Perry |
| Counsel for the Respondents: | Mr J. H. Pearce |
| Solicitors for the Respondents: | Taylor & Scott |
THE COURT DECLARES THAT
On 11 August 2014 the first respondent acted in an improper manner and so contravened s.500 of the Fair Work Act 2009 by entering a construction site at Riverbank Drive, The Ponds and, having sought to exercise rights under Part 3-4 of the Fair Work Act 2009, remained on the site although he had failed to give notice of entry and refused to produce his entry permit.
On 11 August 2014 the second respondent acted in an improper manner and so contravened s.500 of the Fair Work Act 2009 by entering a construction site at Riverbank Drive, The Ponds and, having sought to exercise rights under Part 3-4 of the Fair Work Act 2009:
(a)remained on the site although he had failed to give notice of entry and refused to produce his entry permit;
(b)responded in an inappropriate, aggressive or intimidatory manner to lawful requests to see his entry notice and entry permit; and
(c)spoke to workers without authority to do so.
THE COURT ORDERS THAT
The matter stand over for directions to 5 February 2021 at 9:30am.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2231 of 2015
| AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
Applicant
And
| REBEL HANLON |
First Respondent
| BRIAN PARKER |
Second Respondent
| CONSTRUCTION, FORESTRY, MINING & ENERGY UNION |
Third Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The first respondent, Mr Hanlon, and the second respondent, Mr Parker, were both officers of the Construction, Forestry, Mining and Energy Union (“CFMEU”), the third respondent in this proceeding. At the relevant time, they were also permit holders within the meaning of s.12 of the Fair Work Act 2009 (“FW Act”), which entitled them to enter premises for purposes related to their representative roles. Relevantly, when exercising their rights as permit holders, Mr Parker and Mr Hanlon were required to comply with the requirements set out in div.2 of pt.3-4 of the FW Act.
On 11 August 2014 Mr Hanlon and Mr Parker attended a construction site at Riverbank Drive, The Ponds, a suburb in north-west Sydney (“Ponds site”). The applicant, the Australian Building and Construction Commissioner (“Commissioner”), alleged that Mr Hanlon and Mr Parker entered the Ponds site pursuant to their rights as permit holders to enter premises under s.484 of the FW Act for the purposes of holding discussions. The Commissioner alleged that in exercising their rights as permit holders, Mr Hanlon and Mr Parker failed to comply with the requirements of the Act because, amongst things, they did not give prior notice of their entry and did not produce their notices of entry or their entry permits upon request. It was alleged that they thereby acted in an improper manner and so contravened s.500 of the FW Act.
The Commissioner alleged that the CFMEU also contravened s.500 of the FW Act because, by virtue of s.793 of that Act, it was liable for the conduct of its officials.
The Commissioner sought declaratory relief as well as the imposition of pecuniary penalties upon the respondents.
ALLEGATIONS
The Commissioner proceeded on an amended statement of claim.
The Ponds site
The Commissioner alleged that the principal contractor at the Ponds site was Richard Crookes Constructions Pty Ltd (“RCC”). It was alleged that Austar Plaster Pty Ltd (“Austar”) was subcontracted by RCC to provide plastering services at the Ponds site.
Exercising rights as permit holders – s.484 of the FW Act
The Commissioner alleged that on 11 August 2014 Mr Hanlon and Mr Parker entered the Ponds site and asked Andrew Buchanan, the RCC Project Manager, to “round up” the workers for a meeting. It was alleged that after Mr Buchanan refused their requests, Mr Hanlon and Mr Parker asked the workers at the Ponds site to stop work and proceed to the site sheds.
The Commissioner alleged that Mr Parker addressed the gathered workers, which included RCC employees and subcontractors, in relation to investigations being conducted concerning the Austar employees. It was alleged that Mr Parker asked the gathered workers for a resolution (which the workers passed) that they would “pull up the job” if he and Mr Hanlon needed support to resolve their issues with Austar.
Based on this conduct, the Commissioner alleged that Mr Hanlon and Mr Parker entered the Ponds site for the purposes of holding discussions with on-site employees, pursuant to their rights as permit holders under s.484 of the FW Act.
Entry notice and production of paperwork – ss.487 and 489 of the FW Act
The Commissioner alleged that Mr Hanlon and Mr Parker were required by s.487 of the FW Act to provide RCC with an entry notice at least twenty-four hours before their entry onto the Ponds site on 11 August 2014. It was alleged that they failed to provide such notice.
The Commissioner also alleged that Mr Hanlon and Mr Parker were required by s.489 of the FW Act to produce their entry notice and their entry permits upon request by the occupier. It was alleged that they failed to do so despite Mr Buchanan’s requests.
The Commissioner also alleged that during Mr Parker’s conversation with Mr Buchanan, Mr Parker said in a loud and intimating manner words to the following effect:
Do you understand who I am and what my position is; if you don’t get the workers together I’m going to do it;
You will do what I fucking say; and
Don’t fuck me around.
The Commissioner alleged that despite their failure to produce their entry notice and entry permits upon request, Mr Hanlon and Mr Parker remained on the Ponds site and continued to exercise, or sought to exercise, their rights as permit holders under s.484 of the FW Act.
Contravention of s.500 of the FW Act
The Commissioner alleged that in the course of exercising or seeking to exercise their rights under s.484, Mr Hanlon and Mr Parker acted in an improper manner and thereby contravened s.500 of the FW Act because they:
a)did not give at least twenty-four hours’ notice of their entry onto the Ponds site;
b)refused Mr Buchanan’s requests for the production of their entry notice and entry permits; and
c)remained on the Ponds site despite not producing their entry notice and entry permits.
In relation to Mr Hanlon, it was additionally alleged that he walked around the Ponds site unaccompanied, approached workers on site and asked them to stop work and attend a meeting, when he had no authority or power to do so.
In relation to Mr Parker, it was additionally alleged that he responded in an inappropriate, aggressive or intimidatory manner to Mr Buchanan’s lawful requests to see his entry notice and permit. It was also alleged that without authority he spoke to the workers and threatened to “pull up the job”.
The Commissioner alleged that, by operation of s.793(1)(a) of the FW Act, the CFMEU is taken to have engaged in the conduct engaged in by Messrs Hanlon Parker and that, by reason of that conduct, it too contravened s.500 of the FW Act.
DEFENCE
In their amended defence the respondents alleged that Messrs Hanlon, Parker and Rigby (another CFMEU organiser) attended the Ponds site on 11 August 2014 because Mr Parker wanted to talk to the RCC and Austar managers about suspected contraventions of the FW Act, an enterprise agreement and occupational health and safety issues.
The respondents alleged that:
a)upon arrival, Messrs Hanlon, Parker and Rigby went straight to the RCC site office which was located next to the Ponds site entrance. It was alleged that Mr Parker said to Mr Buchanan words to the effect of:
We’ve got concerns about whether some of the workers have the right to work on the project, and if they are getting paid properly. Can the blokes have a break to come up for a meeting with us?
We think there are breaches of visa conditions and exploitation of the young Chinese workers on this site.
b)the following conversation ensued between Mr Parker and Mr Buchanan or Wesley Ward, the RCC site manager:
MR PARKER: Can you ask the Austar workers to stop work and bring them over to a convenient spot because we fear that they have been working unsafely and that they are being underpaid and exploited as well.
RCC MANAGER: No I am not going to do that.
MR PARKER: Well hold on. We already have evidence that these people are working unsafely. And also we now have evidence that these people are being underpaid and we don’t know what their status is in terms of their legal right to work. We are confident from the documents that we have obtained that there is tax fraud and workers comp rorts happening with this contractor.
RCC MANAGER: It’s up to you to provide the evidence. I am not stopping them from working.
MR PARKER: We have received numerous calls from workers from the site saying that they feel that their safety is being put at risk by having this contractor working on site. They say that they have to access areas where this contractor is working and feel that their safety is being put at risk.
RCC MANAGER: No complaints have been made to us. I will contact Hamish Crookes and see what he says about the meeting.
c)while Mr Parker and Mr Buchanan continued talking, Mr Hanlon and Mr Rigby entered the Ponds site, spoke to some of the workers and told them that there was to be a meeting;
d)when Mr Parker was standing in the car park area later, another RCC manager said to him:
They are coming here for smoko anyway so you can talk to them then; and
e)Mr Parker proceeded to address the workers who had gathered in the paved area near the site sheds. This address was filmed by A Current Affair.
The respondents denied that Mr Parker had entered the Ponds site at all. They also denied that Messrs Hanlon and Parker exercised or sought to exercise their rights as permit holders to enter premises under s.484 of the FW Act for the purposes of holding discussions with employees working at the premises.
Additionally, and after the parties’ cases had closed, the respondents filed an application in a case seeking dismissal of the proceeding on the basis that it had been commenced for an improper purpose and because the Commissioner had failed to disclose material [to them].
RELEVANT LEGISLATION
Officials of industrial organisations may be issued entry permits under s.512 of the FW Act. A person who holds an entry permit is regarded as a “permit holder”: s.12 of the FW Act.
Part 3-4 of ch.3 of the FW Act sets out permit holders’ rights of entry. Sections 484, 487, 489 and 500 are found in that part and relevantly provide:
Division 2—Entry rights under this Act
…
Subdivision B—Entry to hold discussions
484 Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions with one or more employees … :
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled to represent; and
(c) who wish to participate in those discussions.
Subdivision C—Requirements for permit holders
486Permit holder must not contravene this Subdivision
Subdivisions A, AA and B do not authorise a permit holder to enter or remain on premises, or exercise any other right, if he or she contravenes this Subdivision, or regulations prescribed under section 521, in exercising that right.
487 Giving entry notice or exemption certificate
Entry under Subdivision A or B
(1) Unless the FWC has issued an exemption certificate for the entry, the permit holder must:
(a) …
(b) before entering premises under Subdivision B—give the occupier of the premises an entry notice for the entry.
(2) An entry notice for an entry is a notice that complies with section 518.
(3) An entry notice for an entry under Subdivision A or B must be given during working hours at least 24 hours, but not more than 14 days, before the entry.
(4) If the FWC has issued an exemption certificate for the entry, the permit holder must, either before or as soon as practicable after entering the premises, give a copy of the certificate to:
(a) the occupier of the premises or another person who apparently represents the occupier; and
(b) any affected employer or another person who apparently represents the employer;
if the occupier, employer or other person is present at the premises.
…
489 Producing authority documents
…
(2) If the permit holder has entered premises under Subdivision B, the permit holder must produce his or her authority documents for inspection by the occupier of the premises on request.
(3) Authority documents, for an entry under Subdivision A, AA or B, means:
(a) the permit holder’s entry permit; and
(b) either:
(i) a copy of the entry notice for the entry; or
(ii) if the FWC has issued an exemption certificate for the entry—the certificate.
490 When right may be exercised
….
(2)The permit holder may hold discussions under section 484 only during mealtimes or other breaks.
…
Division 4—Prohibitions
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.
As indicated above, s.487(2) provides that an entry notice is a notice that complies with s.518 of the FW Act. That section relevantly provides:
Division 6—Entry permits, entry notices and certificates
…
Subdivision B—Entry notices
518 Entry notice requirements
Requirements for all entry notices
(1) An entry notice must specify the following:
(a) the premises that are proposed to be entered;
(b) the day of the entry;
(c) the organisation of which the permit holder for the entry is an official.
…
Requirements for entry notice for entry to hold discussions
(3) An entry notice given for an entry under section 484 (which deals with entry to hold discussions) must:
(a) specify that section as the provision that authorises the entry; and
(b) contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of an employee or TCF award worker who performs work on the premises; and
(c) specify the provision of the organisation’s rules that entitles the organisation to represent the employee or TCF award worker.
By reason of s.27 of the Fair Work (Registered Organisations) Act 2009, the CFMEU is a body corporate capable of being sued. In that connection, s.793 of the FW Act relevantly provides:
793 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
…
APPLICANT’S EVIDENCE
Andrew Buchanan
Mr Buchanan deposed that RCC was the head contractor on the Ponds site. He was, in August 2014, employed by RCC as a project manager.
Mr Buchanan deposed that his office was in the RCC site office, which was located within the Ponds site’s perimeter fencing. To get to the RCC site office one had to enter through the main gate and walk past the change room, the RCC induction shed, the lunch sheds and the toilets. Those sheds were all placed and located on the teachers’ car park that RCC had fast tracked. The car park provided the sheds with a firm foundation and the workers with an area that was not muddy. He deposed that the site sheds and the car park were all part of the site. An annotated aerial photograph of the site, which was annexed to Mr Buchanan’s first affidavit, is attachment A to these reasons.
Mr Buchanan deposed that he was in his office with the RCC site manager, Wesley Ward, on the morning of 11 August 2014 when Messrs Hanlon, Parker and Rigby entered. He deposed that he had a conversation to the following effect:
MR PARKER: I want to get together with the workers to discuss some issues.
MR BUCHANAN: You haven’t given any notice of your entry, and you haven’t shown me your right of entry paperwork. Unless you have your right of entry paperwork, and you have filled out the official notice of entry, then you won’t be meeting with workers today.
He deposed that Mr Hanlon and Mr Rigby were standing with Mr Parker during the time that they were talking in his office.
Mr Buchanan deposed that when he refused to allow Mr Parker to meet with the workers, the conversation started to get heated. He deposed that Mr Parker stood very close to him and started talking in a loud and aggressive manner, going red in the face and puffing his chest out:
MR PARKER: I don’t care about the paper work. I want you to round up all the workers so I can speak with them.
MR BUCHANAN: You haven’t got the paperwork.
MR PARKER: I don’t care. I want to speak with them. If you don’t round up the workers I will go and do it.
Mr Buchanan deposed that he re-affirmed his position that Messrs Hanlon, Parker and Rigby were not allowed to enter the Ponds site without notice of entry and production of their entry permits. He deposed that, at one point, Mr Parker said to him “you will do what I fucking say” and “don’t fuck me around”.
Mr Buchanan deposed that his conversation with Mr Parker continued to the following effect:
MR PARKER: Austar are not paying their workers correctly and they’re employing illegal workers.
MR BUCHANAN: I haven’t seen any evidence of that and if you have information you should bring it to us to investigate.
MR PARKER: I want to talk to the workforce. I want you to get them together so I can speak with them.
MR BUCHANAN: I’m happy for you to talk to the workers as long as you go through the right protocols which is to provide written notice and show your right of entry permits. Without any direction from my supervisors and without right of entry paperwork, I am not going to be getting the guys together.
MR PARKER: [loudly and in an aggressive manner] Do you understand who I am and what my position is? If you don’t get the workers together, I’m going to do it.
MR BUCHANAN: Brian, you know I’m not allowing you to do that.
MR PARKER: All right that’s it then.
Mr Buchanan said that Mr Parker’s behaviour and demeanour had made him feel uncomfortable. Mr Buchanan said that Mr Parker might have said something similar to “We don’t know what [the Austar Workers’] status is in terms of their legal rights to work” or that “We are confident from the documents that we have obtained that there might be tax fraud”. However, at no time was safety discussed.
Mr Buchanan deposed that Messrs Hanlon and Parker then stormed out of his office and out of view. Mr Rigby had left the office some time before this.
Mr Buchanan said he tried to call his managers to seek instructions about what to do but was unable to get through, during which time he received a phone call from a foreman on the site. Mr Buchanan deposed that as he continued to try to call his managers, he walked out of his office and saw that Mr Parker was addressing a group of workers in the area in front of the site sheds. He could not say whether another RCC manager had told Mr Parker:
Well, they’re coming here for smoko anyway, so you can talk to them then,
but there was no fixed time for smoko, which was dependant on when trades and individuals wanted to take their breaks. He said he did not believe that he spoke to Mr Parker after Messrs Hanlon and Parker left his office.
Mr Buchanan deposed that at no time during the conversation in the RCC site office did Messrs Hanlon, Parker and Rigby produce their entry permits. He also deposed that he did not receive, and was not aware of, any entry notice being issued by them or by the CFMEU prior to their entry onto the Ponds site on 11 August 2014. Generally an entry notice would be sent to him or to RCC’s head office and then forwarded to him. Mr Buchanan said that before 11 August 2014 there had never been an issue at the Ponds site concerning whether or not a right of entry notice had been given. Mr Rigby had visited the Ponds site on a couple of occasions before the 11 August 2014 visit and had not served an entry notice and Mr Buchanan had not examined his right of entry. Mr Hanlon had not exercised a right of entry on his previous visits to the Ponds site because he had been holding discussions with Mr Buchanan or his site manager, or going on safety walks, rather than wanting to speak to workers. An example of this was a toolbox meeting on 1 August 2014 when a CBUS representative made a presentation to workers but Mr Hanlon did not seek and was not invited by RCC to speak on that occasion. Mr Buchanan said that he had not asked for 24 hours’ notice prior to 11 August 2014 because until that point Mr Hanlon:
… hadn’t asked to – to get the whole site together to discuss concerns that they had, and it’s not every day you have the State Secretary of the CFMEU in your office. That raises a few alarm bells as well.
He deposed that about ten minutes after Messrs Hanlon and Parker had left his office, he managed to get through to one of his managers who advised him to call the police to have them removed. However, by the time he had finished the call, he became aware from talking to a foreman that Messrs Hanlon, Parker and Rigby were leaving the site. He deposed that ultimately he did not call the police.
Mr Buchanan deposed that shortly after the CFMEU officials left the site he completed an incident report and sent it to the head office the same day “as [was] standard practice for any incident”. It stated relevantly:
SUMMARY of INCIDENT/INJURY DESCRIPTION:
(Describe what happened – who, when, how & why) In first aid patients own words
CFMEU officials (Brian Parker, Rebel Hanlon and Tom Rigby) came into the RCC site office and spoke to both the RCC Project Manager (Andrew Buchanan) and Site Manager (Wes Ward). Brian Parker advised he had issues with Austar Plaster and told RCC to round up all “the boys” so he could talk to them. RCC (Andrew Buchanan) advised that without a Right of Entry permit we would not be getting the site workers together as we had to follow the guidelines. Brian Parker then said that he didn't care about the paperwork and if we didn't get them all together he would bury us in paperwork. Andrew Buchanan advised again that we would not arrange a meeting without proper Right of Entry paperwork. Whilst RCC we [sic] discussing this matter with Brian Parker, Rebel Hanlon of the CFMEU walked onto site without authorisation and proceeded to tell all workers to go to the lunch area for a meeting. As this was approximately 9.45am many workers were already at the lunch shed area for morning tea. Without authorisation Brian Parker then spoke to the gathered workers however RCC are unable to verify what was said as we were not present as at this stage Andrew Buchanan was making calls to RCC’s Management (Cameron Waller & Hamish Crookes - both unsuccessfully until after things ended) and Wes Ward had walked onto site to see if any CFMEU officials had gone onto site without authorisation.
Whilst making phone calls RCC’s Andrew Buchanan observed a film crew filming Brian Parker’s speech to the gathered workers and there appeared to be additional CFMEU officials in the lunch area as well. Once the meeting wrapped up all workers returned to work.
Actions taken to- Control the Incident/ Treat the Injury:
RCC's Andrew Buchanan contacted RCC's management (both Cameron Waller & Hamish Crookes) who advised they would raise the matter with the CFMEU.
Mr Buchanan said that it was rare for him to fill out an incident report “from scratch” but he filled this one out.
Mr Buchanan also identified the project’s site diary for 11 August 2014 which relevantly stated:
CFMEU came to site with no Right of Entry but entered site regardless with video cameras. They tried to hold a stop work meeting but could only talk to the guys already at the sheds having smoko
We informed Cameron Waller and Hamish Crookes
CFMEU- Brian Parker, Rebel Hanlon, luke rigby [sic]
A current affair [sic] filmed a speech at the entry to the site sheds
Mr Buchanan said that he had had a conversation with Mr Hanlon on 1 August 2014 about “the workers compensation amounts” and conceded that, prior to 11 August 2014, he knew that the CFMEU was making inquiries about Austar. He said that he had had discussions:
… regarding workers compensation certificate and a number of workers covered on that certificate
but did not know “the full extent of what they were after”. He denied having discussed rates of pay.
Mr Buchanan agreed that he had met with Mr Hanlon and Mr Rigby on 6 August 2014 at which time Mr Hanlon told him about award wage rates that were applicable to Austar’s workers, raised the possibility that there were issues in that regard and suggested that an investigation should be conducted into whether Austar was paying its workers correctly. However, he was not given any information to show that Austar’s workers were being paid incorrectly or asked to conduct an investigation. He denied knowing on 11 August 2014 that there was an issue about Austar’s workers and subcontractors at the Ponds site.
In cross-examination Mr Buchanan was taken to a “Fair Work Building and Construction” notice to produce addressed to RCC dated 11 September 2014 and said that he had assisted in collating the documents which were produced in response to it. He was also taken to correspondence dated 14 and 15 August 2014 passing between him and a Mr Arends, an industrial officer at the Master Builders Association (“MBA”) who had produced a review of Austar’s contracting and payment arrangements dated 13 August 2014. Mr Buchanan acknowledged that he had been copied into an email from Mr Arends to Mr Jiang of Austar dated 15 August 2014. He said that he did not know why Mr Arends’s email to him of 14 August 2014, which attached a copy of the MBA report was not among the documents produced in response to the Notice to Produce. He also had no idea why his copy of the 15 August 2014 email from Mr Arends to Mr Jiang had not been produced in response to the notice.
The MBA report said, amongst other things:
Mr Arends’s email dated 14 August 2014 sending the MBA report to RCC said, in part:
Hi Andrew,
Please find attached preliminary assessment based on our meeting with Austar Plaster Pty Ltd.
It is apparent that a pyramid subcontracting arrangement exists between Austar Plaster Pty Ltd and its subcontractors. Based on the assessment the following issues were raised:
• Potential sham contracting arrangements;
• Workers not being paid their correct entitlements;
• Inadequate workers compensation coverage.
Mr Buchanan was taken to the transcript of an interview he gave to Fair Work Building Inspector Pascoe on 21 November 2014 in which he said that the MBA inquiry “showed a very minor underpayment” and rejected the proposition that that statement had been a lie. He said that an underpayment of $80 had been identified and he disagreed with some of the things Mr Arends had said. Mr Buchanan was taken to a further part of the transcript of the interview with Fair Work Building Inspector Pascoe where a report into Austar’s payment records, prepared for RCC by a firm of accountants, David Hicks & Co Pty Ltd, was discussed. Mr Buchanan relevantly told Fair Work Building Inspector Pascoe:
… I was given a spreadsheet from-from them, that basically generally showed that workers were being paid the - the correct amounts.
Mr Buchanan was taken to tables behind the accountants’ spreadsheet which recorded that some employees of Austar’s sub-contractors had been underpaid. He disagreed that his evidence, just quoted, was untruthful saying it was his opinion. He went on to say:
… based on the findings of the – the spreadsheet, you will see there’s a significant number of people that were getting paid substantially higher, and based on that and other documentation, we were happy to rely on that.
He also said that RCC had done an in-house follow-up on the David Hicks report that arrived at the same results.
Wesley Ward
In August 2014 Mr Ward was RCC’s site manager at the Ponds site.
Mr Ward said that Mr Hanlon had attended the Ponds site on approximately four occasions before 11 August 2014 but these were “just general…chit chat sort of visits”. Mr Ward did not recall an occasion prior to 11 August 2014 when Mr Hanlon’s right of entry permit had been requested. Mr Ward said Messrs Rigby and Hanlon had not previously given twenty-four hours’ notice and he had not asked them why they had not. He said that were generally welcome and treated as visitors when they attended the Ponds site previously they visited the RCC office, had a “chat” and left.
One such occasion was when Mr Hanlon and a CBUS representative, Nick Fodor, attended the RCC office to ask whether Mr Fodor could hang flyers on-site, speak about CBUS superannuation with the workers at the next toolbox meeting and remain on-site for half a day in case workers wanted to update their details. Mr Ward said that Mr Buchanan had agreed to Mr Fodor speaking at the toolbox meeting and putting up flyers.
Mr Ward said that he had been present at that toolbox meeting and that Mr Hanlon had introduced Mr Fodor but he was not aware of, or could not recall, Mr Hanlon speaking at the meeting. He said the workers had already assembled when he arrived but could not say whether Mr Hanlon was already there. He said he did not believe Mr Hanlon would have spoken to the workers at any length prior to introducing Mr Fodor because generally it was Mr Beswick or he who would call the meeting. He was not sure whether Mr Rigby was also at the meeting. Mr Ward said that the meeting was held in an outdoor area between the lunch shed, induction shed, change rooms, around the same place where Mr Parker had addressed the workers on 11 August 2014. He said that the meeting took place within the perimeter fencing.
Mr Ward deposed that he was in the RCC site office on the morning of 11 August 2014 when Messrs Hanlon, Parker and Rigby entered the building. To get there they had to pass through the gates in the perimeter fence and past the change rooms, the induction shed, the lunch sheds and the toilets. He deposed that he followed them into Mr Buchanan’s office where a conversation to the following effect ensued:
MR PARKER: Can you round up all the workers on site? We have to have a meeting.
MR BUCHANAN: We can’t do that. You haven’t given us 24 hours’ notice. You haven’t provided the proper paperwork.
MR WARD: Guys this is a government job. You know the rules, we can’t give you access.
…
MR PARKER: You’re asking for one piece of paper from me, when there are guys out there working on the wrong visas.
Mr Ward deposed that despite requests from Mr Buchanan, Messrs Hanlon, Parker and Rigby did not produce their entry permits. He also deposed that he was not aware of the CFMEU, Messrs Hanlon, Parker or Rigby giving written notice of their entry to the Ponds site on 11 August 2014.
Mr Ward deposed that during the conversation in the RCC site office Mr Parker talked loudly and aggressively, was red faced, annoyed and getting progressively louder. Mr Ward said that Mr Parker had asked for a meeting with “the boys or the men” not the “Austar plaster workers”. Mr Ward said that he recalled Mr Parker referring to “illegal workers” and supposed he meant the Austar workers because the “visas and stuff” had been brought to his attention prior to 11 August 2014. He wasn’t sure who had alerted him but thought it might have been Mr Beswick, the site’s work, health and safety officer. Mr Ward said he had been present for the whole conversation and did not recall Mr Parker saying “hold on” or raising safety issues. Mr Ward also did not recall Mr Parker referring to workers’ wages or stating that people were being underpaid.
Mr Ward deposed that Mr Buchanan started making some phone calls, following which the CFMEU officials walked out of the office and out of his view. He was advised by a foreman shortly afterwards that there were people without personal protective equipment walking around the site. Mr Buchanan was still making phone calls and instructed him to go outside to see what was happening.
Mr Ward deposed that he walked into the construction areas and saw Mr Hanlon walking around the site without any RCC representative accompanying him. He deposed that he saw Mr Hanlon approach and speak to workers on the site but could not hear their conversations. Mr Ward deposed that as he tried to catch up with Mr Hanlon, a person whom he did not know and who was not wearing any personal protective equipment crossed his path. When he caught up with Mr Hanlon he said:
You’ve even got guys here with no [personal protective equipment]. What are you doing?
to which Mr Hanlon did not respond.
Mr Ward deposed that he then followed Mr Hanlon back to the site sheds. Mr Ward explained that the shed area where Mr Parker had addressed workers was part of the construction site saying: “Well, it was part of my site because it’s inside the boundary and I have to lock up every night.” He saw that there was a media crew in the car park area and also saw Mr Parker speaking to a group of about 20 to 25 workers at a location he indicated on a copy of the aerial photograph of the site as being outside the lunch sheds, almost halfway from the entry gates to the RCC site office. He deposed that Mr Parker’s meeting with the workers lasted about ten minutes and was attended by the formwork and bricklaying contractors’ workers. Mr Ward said he saw the workers in the area but did not know how they came to be there. He did not know whether they were on smoko, although they might have been. He said the times for workers’ smokos varied between 9 am and 11 am.
Mr Ward said that, while not “100 per cent sure”, the account of events in the site diary was “about what happened”. He said that the site foreman maintained the site diary using notes provided by him and occasionally also the “safety guy”. He said he was not sure who made the 11 August 2014 entry but id not believe it was him because of the manner in which it had been written.
Trent Roll
Mr Roll was a Fair Work Building Industry Inspector (“FWBI”). His affidavit relevantly annexed a transcript of video footage of Mr Parker speaking to workers at the Ponds site on 11 August 2014. FWBI Roll said that he was a team leader at the time of the investigation and so “to a degree” had overseen it. He said that the investigation was conducted by one of his team members, FWBI Pascoe.
FWBI Roll agreed that part of the FWBI’s role was to investigate sham contracting contraventions which would have been something that they looked at when ensuring that building industry participants complied with work place relation laws. He said several documents had been requested to make determinations of that nature. He was unaware of a separate investigation into whether Austar had engaged in sham contracting, but said that employment documents had been assessed as part of the investigation to make a determination about whether the workers had or had not been employees.
In cross-examination FWBI Roll was taken to a running sheet which recorded, tracked and documented important events of the investigation and “should” have logged all events. He was specifically taken to a file note of a telephone call between Mr Jiang and Inspector Pascoe on 11 August 2014 about some of that day’s events. In particular, the file note recorded that Jamie Crooks had told Mr Jiang “if Austar is breaking the law he will cancel the contract”. He agreed that the running sheet recorded the decision to investigate as being on “11.8” which had been approved by Inspector Pascoe and then himself. He thought that there were several possible breaches that they were looking into and which might have prompted the decision to investigate. However, he did not recall what they were. When FWBI Roll was asked whether there had been a decision to investigate any potential sham contracting engaged in by Austar he replied:
There may have been. I would like to say there most likely would have been. It is certainly something – it is not something that we ignore.
However, apart from requesting records about employment relationships no distinct investigation occurred, he imagined because it was deemed not required.
RESPONDENTS’ EVIDENCE
Rebel Hanlon
Mr Hanlon was employed by the CFMEU as an organiser. On 7 August 2014 he was issued an entry permit pursuant to s.512 of the FW Act.
Early investigations
Mr Hanlon deposed that he visited the Ponds site on about four occasions in mid-2014, usually accompanied by Mr Rigby, to address safety complaints which had been received by the CFMEU. He deposed that on the second occasion, Mr Buchanan or Mr Ward asked for his right of entry permit, which he produced. He deposed that he was not asked for his entry permit on any subsequent visit to the Ponds site.
Mr Hanlon deposed that he had met Mr Buchanan on several occasions and that they had a good relationship. He considered that he was generally welcome on the site and treated as a visitor. Mr Hanlon deposed that, in his experience, RCC never asked him to give notice of his entry in accordance with the FW Act. He deposed that the Ponds site entrance was adjacent to the site office and that the site was separated from the car-park and paved area by a school-type fence or a water-filled barrier known as a Jersey Kerb.
On 1 August 2014 Mr Hanlon attended the Ponds site with a CBUS representative, Nick Fodor, to speak at a toolbox meeting. The meeting had been pre-arranged with RCC and Mr Buchanan. Mr Hanlon said that he had told Mr Buchanan that he and Mr Fodor would attend the meeting and that he too would speak to members. He said that as a CFMEU organiser his role was, amongst other things, to inform workers of their legal entitlements regarding superannuation and wages. Mr Hanlon deposed that at 6:30 am on that day, before work was due to start, he had a meeting with approximately 50 workers from the site. He deposed that some of the workers expressed concerns about the Austar employees not receiving superannuation, not being paid correctly and not being covered by workers compensation, amongst other issues. Mr Hanlon deposed that he and Mr Rigby decided to pursue these issues with RCC.
Later on the morning of 1 August 2014, Mr Hanlon and Mr Rigby approached Joshua Beswick, a CFMEU member who had been present at the meeting that morning. He deposed that Mr Beswick conducted the site inductions and advised them that Austar was “turning over the crews regularly”, that most of the Austar employees did not speak English and that an interpreter had not been used for their inductions. He deposed that Mr Beswick gave him the sign-in register and the site induction records which he photocopied off-site and later returned.
Mr Hanlon deposed that he also spoke to Mr Buchanan on the morning of 1 August 2014 and asked him to provide the workers compensation certificates of currency for the Austar workers. Mr Buchanan provided those certificates to him later that day. Mr Hanlon deposed that upon review of those certificates and following further investigations, he reached the view that Austar was practising workers compensation fraud.
Mr Hanlon deposed that on or about 6 August 2014 he had a meeting with Mr Buchanan at the Ponds site to speak to him about Austar. During that meeting he said they had a conversation to the following effect:
MR HANLON: You are aware of Richard Crookes’[s] responsibility as the principal contractor. I have brought to your attention concerns about this contractor in relation superannuation, workers comp and other matters. I have also brought to your attention how many workers have been inducted onto your site over a short period of time.
MR BUCHANAN: I will look after it with Hamish Crookes. We will probably push them to do an MBA audit.
Mr Hanlon said that a meeting with workers was not the purpose of his visit to the Ponds site on 6 August 2014. He also said that when he attended the site for a safety visit and for investigations he had felt welcome and, each time, Mr Buchanan and others had been receptive. He conceded that save for the 1 August 2014 CBUS meeting that had been pre-arranged with Mr Buchanan prior to 11 August 2014, neither he nor another CFMEU representative had asked for a meeting of workers to be called.
11 August 2014
On 11 August 2014 Mr Hanlon visited the Ponds site with Mr Parker and Mr Rigby. Mr Hanlon deposed that his primary purpose was, with Mr Parker, to talk to RCC’s managers and Austar’s managers about suspected contraventions of the FW Act, the enterprise agreement and occupational health and safety issues. He deposed that he wanted to get RCC to assist the investigation and he wanted to talk to Austar workers about these contraventions. Mr Hanlon said that on 11 August 2014 he and Mr Parker advised Mr Buchanan that they wanted a meeting with Austar workers.
Mr Hanlon said it was possible that on entering the site he saw a sign with the words “Construction Site. No unauthorised access” but did not recall seeing a sign saying “All visitors must report to the site office”. He said he could not recall what signs might have been at the pedestrian gate or what they may have said. Mr Hanlon said that he thought the site’s perimeter fence was for “property-wise” purposes, rather than to identify the construction site, because it was in a new housing estate and a subdivision was being built.
Following their arrival at the Ponds site, Mr Hanlon, Mr Parker and Mr Rigby entered the RCC site office which he described as being located in the car park area and not on “the site proper”. Mr Hanlon said that he had not been aware that the car park was part of the construction site. He said it had been used by subcontractors, visitors and other people for on-site parking. Mr Hanlon said that the building site was a couple of hundred metres from the sheds. He said that he did not think that the induction sheds, lunch sheds, change rooms and toilets were part of the construction site, it not being unusual to have site offices and accommodation away from the “actual physical building site”. Mr Hanlon agreed with Mr Buchanan that he and Mr Rigby were standing with Mr Parker while he and Mr Buchanan were talking in the latter’s office. He could not recall the entirety of the conversation but remembered Mr Parker saying to Mr Buchanan words to the effect of:
We’ve got concerns about whether some of the workers have the right to work on the project, and if they are getting paid properly. Can the blokes have a break to come up for a meeting with us?
Mr Hanlon disagreed with Mr Ward’s account of the conversation in the RCC site office and deposed that at no time during the visit did he have a discussion with any RCC manager or employee about entry permits or entry notices. He deposed that no one asked to see his entry permit or asked him about an entry notice but conceded that no notice under the FW Act had been given.
Mr Hanlon also generally disagreed with Mr Buchanan’s account of the discussion in the RCC site office and deposed that Mr Parker did not become irate. He denied that Mr Parker said the words attributed to him, namely:
·I want to talk to the workforce. I want you to get them together so I can speak with them;
·Do you understand who I am and what my position is? If you don’t get the workers together, I’m going to do it;
·You will do what I fucking say;
·Don’t fuck me around;
·I don’t care about the paperwork. I want you to round up all the workers so I can speak with them; and
·I don’t care. I want to speak with them. If you don’t round up the workers, I’ll go and do it.
However, he conceded that Mr Parker “asked for the lawful rights of workers to be honoured”.
Mr Hanlon also deposed that at some point during the discussion he heard Mr Parker ask Mr Buchanan about whether they could speak to workers other than the Austar workers, to which Mr Buchanan replied:
They are coming here for early smoko anyway so you can talk to them then.
However, in cross-examination Mr Hanlon said that when Mr Parker said “workers” he meant “Austar workers”. He said that he understood Mr Buchanan to have organised a non-staggered, i.e. early, smoko between Mr Hanlon leaving the RCC site office and the meeting taking place. Mr Hanlon said he presumed Mr Buchanan spoke to Austar because he was told that smoko would be early.
In cross-examination Mr Hanlon said that upon leaving the RCC site office they planned to organise a meeting with Austar workers to investigate the suspected breaches further. Mr Hanlon deposed that he left the site office and told some of the workers on “the site proper”:
… that we were having a meeting at smoko
and “possibly” spoke to workers before they were on a meal break.
Mr Hanlon denied having told workers to cease work immediately and attend the meeting, saying that he told them the meeting would be at smoko. He said he could not recall whether any of the workers he spoke to attended Mr Parker’s address, but they “possibly” could have. He said he could not really recall the period of time between speaking with workers and the meeting occurring but it would have been a short time frame as he had probably only been on [that part of the] site for 10 minutes.
In cross-examination, Mr Hanlon was shown the transcript of the A Current Affair video footage and when asked whether he said the words in that transcript he replied “quite possibly” and, “if it’s in the transcript”. The transcript relevantly records:
…
Reporter:Rebel what did you find down there?
Mr Hanlon:When we went for the walk around the site we’ve actually found a lot of blokes that have actually said that, that they’re claiming that they’re visaed, that they’re not visaed. There’s a lot of workers there that we know are working on an ABN number, get copying and all (???) in payment and the ABN numbers we know that these workers are not paying tax. We now [sic] that for a fact. And this is an absolute taxation rort that’s on a State government job.
He was also taken to another part of the transcript which records:
Reporter:… So how many did you hit up out there do you reckon? Asian guys or Chinese guys?
Mr Hanlon:There’s probably about nearly 15 or 16 blokes that we hit up.
When asked whether he had discussed other issues with workers on-site, for example whether they had visas, Mr Hanlon replied that he “may have” but thought that at the time he was merely expressing his opinion to the reporter as he already had the evidence. When it was suggested to him that, as he told the reporter, he spoke to fifteen or sixteen workers about issues such as “whether or not they were visaed” he said “possibly” but it was unnecessary to ask them many questions because of the evidence he already had. He said that he would have told them that there was going to be a meeting at smoko but could not recall if he had said more than that.
During the smoko break, Mr Parker met with some of the workers in the paved compound area of the site. He deposed that the meeting was filmed by A Current Affair. Mr Hanlon said that he could not recall whether he had had any discussions with A Current Affair prior to attending the Ponds site, but said it was possible and agreed that the CFMEU had organised for them to attend on 11 August 2014.
Mr Hanlon conceded that on 11 August 2014 he did not do anything to investigate the contraventions apart from communicating concerns to Mr Buchanan and having discussions with workers. He said this was because he thought the correct protocol was to wait for Mr Buchanan and Mr Crookes to get back to them.
Brian Parker
Mr Parker was the Construction and General NSW Divisional Branch Secretary of the CFMEU. He deposed that prior to the CFMEU’s site visit on 11 August 2014 he had become concerned that Austar was in breach of various legal obligations.
Mr Parker was taken to the aerial view of the site, and confirmed that on 11 August 2014 he had entered via the “main site entry gates”. He said that the “usual” signs had probably been on the fencing and agreed that the construction site was marked by the perimeter fence. He said that they parked in an area between the gates and the change rooms and walked to the RCC site office. Mr Parker agreed that in order to reach the office he had to pass the change rooms, the induction and lunch sheds and the toilets, but said these were merely amenities and different from the construction site.
Mr Parker deposed that once at the Ponds site he had a conversation with a “Richard Crookes manager”, whom in cross-examination he was prepared to accept had been Mr Buchannan. He agreed with Mr Buchanan that Mr Hanlon and Mr Rigby were standing with him while he and Mr Buchannan were talking in the latter’s office. He deposed that the conversation proceeded in words to the effect of:
MR PARKER: We’ve got concerns about whether some of the workers have the right to work on the project, and if they are getting paid properly. Can the blokes have a break to come up for a meeting with us? We think there are breaches of visa conditions and exploitation of the young Chinese workers on this site. Can you ask the Austar workers to stop work and bring them over to a convenient spot because we fear that they have been working unsafely and that they are being underpaid and exploited as well.
RCC MANAGER: No I am not going to do that.
MR PARKER: Well hold on. We already have evidence that these people are working unsafely. And also we now have evidence that these people are being underpaid and we don’t know what their status is in terms of their legal right to work. We are confident from the documents that we have obtained that there is tax fraud and workers comp rorts happening with this contractor.
RCC MANAGER: It’s up to you to provide the evidence. I am not stopping them from working.
MR PARKER: We have received numerous calls from workers from the site saying that they feel that their safety is being put at risk by having this contractor working on site. They say that they have to access areas where this contractor is working and feel that their safety is being put at risk.
RCC MANAGER: No complaints have been made to us. I will contact Hamish Crookes and see what he says about the meeting.
Mr Parker deposed that at no point during his site visit on 11 August 2014 was he asked for his entry permit or for an entry notice. He deposed that RCC managers made no reference that day to permits or entry notices and he conceded that no notice was given, deposing that there would have been no Austar workers on site if it had been. He also said that because he visited the office, not the construction site, he was not required to give notice. He said he did not enter “the site” although Mr Hanlon and Mr Rigby did to have a look at some safety breaches. Mr Parker said that, regardless of the site’s perimeter fence, there was a clear distinction between the site offices and the building site, it not being uncommon for site offices to be apart from a building site.
Mr Parker also deposed that he did not say the words attributed to him by Mr Buchanan, namely:
·I want to talk to the workforce. I want you to get them together so I can speak with them;
·Do you understand who I am and what my position is? If you don’t get the workers together, I’m going to do it;
·You will do what I fucking say; and
·Don’t fuck me around.
He deposed that he did not become red in the face, puff his chest out, stand very close to Mr Buchanan during their conversation or storm out of the latter’s office. Mr Parker also denied speaking loudly to Mr Buchanan or addressing him in an aggressive manner.
Mr Parker said that after speaking with Mr Buchanan he waited in the compound area because Austar’s site office was in the car park area and, secondly, because he was waiting for a return phone call from Mr Waller and RCC management about whether he could meet with the Austar workers. At this point, Mr Hanlon and Mr Rigby went to look for Austar workers to speak to them.
Mr Parker deposed that while in the car park area, he asked a RCC manager whether he could speak to workers other than the Austar workers. The RCC manager, who may have been Mr Buchanan, said words to the effect of:
They are coming here for smoko anyway so you can talk to them then.
During cross-examination Mr Parker said that Mr Ward, not Mr Buchanan, had said this.
Mr Parker deposed that while he waited in the car park area, Mr Hanlon or Mr Rigby informed him that a number of the Austar workers had run off the site. Given their disappearance, he decided to inform other members on the site about the suspected contraventions in order to get their support for the investigation and to encourage them to tell the CFMEU what they knew. During the smoko break he, Mr Hanlon and Mr Rigby met with the workers from the site, other than the Austar workers and some others, in the car park area. The meeting was filmed by A Current Affair and lasted about ten minutes. Mr Parker deposed that he left shortly afterwards having never entered the Ponds site.
Mr Parker deposed that his primary purpose in attending the site had been to talk to RCC and Austar’s managers about the enterprise agreement, suspected contraventions of the FW Act, and occupational health and safety matters. He said issues such as correct payment of workers, sham contracting, tax avoidance, workers’ compensation fraud and site safety had also been of concern. He deposed that he wanted to get RCC to assist the investigation. He had also wanted to talk to the Austar workers about the suspected contraventions.
In cross-examination Mr Parker denied that meeting and having discussions with Austar workers about the alleged contraventions had been the main purpose of the visit, although he had wanted to speak with them at some stage to identify concerns and whether they could speak English. In cross-examination Mr Parker conceded that at one stage he might have said:
I want to get together with the workers to discuss some issues.
He said that speaking with the Austar workers became a purpose due to management’s lack of co-operation and that he asked to speak to the workers once he concluded from his conversation with Mr Buchannan that Mr Buchannan “wasn’t going to be co-operative”. However, in cross-examination Mr Parker agreed that he had asked to speak with workers prior to Mr Buchanan’s “lack of cooperation” and, in fact talking to the workers had been a purpose of the visit before he entered the RCC management office.
During cross-examination it was put to Mr Parker that he had failed to ask Mr Buchanan to speak to the Austar managers. Mr Parker was sure that he had had a conversation with Mr Buchanan at some point but, if he had not, was “pretty confident” he had asked Mr Ward. It was also put to Mr Parker that upon entering Mr Buchanan’s office he had not asked him to furnish documentation or asked any questions about issues such as sham contracting. Mr Parker agreed that he had not done so at first, but was positive that he had later. He said he first raised the problems with Mr Buchanan but could not recall the order in which he said things.
Mr Parker deposed that the camera crew from A Current Affair arrived at the Ponds site and started filming at around the time that he, Mr Hanlon and Mr Rigby left the site office. He deposed that he and Mr Rigby had brought A Current Affair to the site and had met the producer and film crew before going to “the car park area near the Ponds site”.
Mr Parker denied that it had been planned that the program would record discussions with workers. He said that he thought that they wanted to capture him talking to management but conceded that no one from A Current Affair had filmed or witnessed his conversation with Mr Buchanan. He said he could not recall whether he had told A Current Affair that there would be a meeting with workers but that they were “all about … the big hype about things that may happen”. He said that “when [A Current Affair] go to sites where … people haven’t got their legal right to work, they usually get them on camera running away”.
In cross-examination, Mr Parker was taken to a portion of the A Current Affair transcript of his address to the workers which stated in part:
…the company says it’s highly illegal for us to do that...
Mr Parker said that he was probably referring to workers withdrawing their labour as opposed to Mr Buchanan telling him that he was not allowed to be on-site conducting the meeting or the fact that he had not given notice.
Thomas Rigby
Mr Rigby was a CFMEU organiser. He deposed that between April or May 2014 and 11 August 2014 he had attended the Ponds site on a number of occasions. On the second of those visits he was asked to produce his right of entry permits which he gave to Mr Buchanan or Mr Ward who read them and made some notes. He deposed that was not subsequently asked for his permits.
Mr Rigby deposed that on 1 August 2014 he and Mr Hanlon attended the Ponds site with a representative from CBUS. He deposed that the visit was pre-arranged and was intended to give the workers on site the opportunity to consult with the CBUS representative about their superannuation. Mr Rigby deposed that at a meeting with almost 50 workers at 6:30am, before work was due to start, some of the workers raised concerns about the Austar employees not receiving superannuation, not being paid correctly and not being covered for workers’ compensation. He and Mr Hanlon decided to follow up these issues and left the site with the Austar employees’ induction records which were returned the next morning.
On 11 August 2014 Mr Rigby and Mr Hanlon attended the Ponds site again, accompanied by Mr Parker. Mr Rigby deposed that he attended the site to further investigate what appeared to be visa breaches and exploitation by Austar of its employees. Mr Rigby said that their purpose had been to investigate suspected breaches of conditions and they planned to follow those issues up with RCC management and to gather evidence. He denied their purpose had been to speak with workers. Mr Rigby said he “vaguely” recalled having a conversation with Messrs Hanlon and Parker about the intentions for the visit. He said that the evidence he had given as to his purpose was something that he would have discussed with Messrs Hanlon and Parker prior to going on-site and they all had the same purpose. Mr Rigby said that if the opportunity arose their investigation included speaking with workers to investigate the allegations.
Mr Rigby said they entered in the main site entry gates as identified on the aerial view of the site. Mr Rigby recalled signage near the gates stating:
All visitors must report to the site office,
and a “site entry” sign bearing the RCC logo which he understood to signify the Pond site’s point of entry.
Mr Rigby deposed that he and Messrs Parker and Hanlon parked near the site sheds in the car park. They then walked straight to the RCC site office which was located at the far end of the car park, next to the site entrance. Mr Rigby deposed that the site office was not part of the Ponds site, which was marked off by a taped barrier.
Mr Rigby deposed that they were met by Mr Buchanan. Mr Parker then said words to the effect of:
We think there are breaches of visa conditions and exploitation of the young Chinese workers on this site.
Mr Rigby deposed that he was not standing particularly close to Mr Parker and Mr Buchanan and, as a result, he did not hear their entire conversation. He also said that although he was approximately two metres away from the conversation he did not hear all of it because his broken foot made it difficult to concentrate. He deposed, however, that the conversation did not become heated at all. There was no shouting or raising of voices and Mr Parker remained calm throughout the conversation.
Mr Rigby deposed that no reference whatsoever was made by Mr Buchanan to entry permits or entry notices on 11 August 2014. He deposed that he was not asked for his entry permit or for an entry notice and Mr Buchanan did not say anything about them not providing twenty-four hours’ notice or not providing the proper paperwork.
Mr Rigby also deposed that he did not hear Mr Parker say the following words attributed to him by Mr Buchanan, namely:
You will do what I fucking say; and
Don’t fuck me around.
He denied that Mr Parker said:
·I want to talk to the workforce. I want you to get them together so I can speak with them; or
·Do you understand who I am and what my position is? If you don’t get the workers together, I’m going to do it.
Mr Rigby deposed that he left the management office about ten minutes later. He then walked the Ponds site for about half an hour, accompanied by a reporter from A Current Affair, and attempted (unsuccessfully) to speak to some of the Austar employees. In cross-examination he said he was followed around the site by someone but did not know where that person was from as he did not speak to him. He was unsure but they could have had a camera. He said he walked on-site in order to speak with Austar workers and to see whether he recognised any faces from other sites, but had not discussed this with Messrs Hanlon and Parker beforehand. He deposed that Mr Parker remained in the site shed area during this time and did not enter the Ponds site at all.
Mr Rigby deposed that he then returned to the site shed compound where the majority of workers had gathered. Mr Parker proceeded to discuss with the workers the CFMEU’s concerns regarding Austars’ employees. He deposed that the discussion was filmed by A Current Affair.
Mr Rigby said that the only thing they did was to walk the site and speak with workers and that they left after Mr Parker had addressed the workers. He said no Austar managers or personnel had been on-site to speak with.
Timothy McCauley
Mr McCauley was the solicitor with carriage of this matter for the respondents. In his affidavit affirmed 10 August 2016 he deposed to certain enquiries he had undertaken with a view to identifying the location and title details of the Ponds project site by reference to title details particularised in a sub-contract related to the project. The burden of this affidavit was that the title details of the project site, based on the title details in the sub-contract, could not be reconciled with the title details of the project site, as at the time of Mr McCauley’s affidavit, based on its address.
Mr McCauley caused a title search to be undertaken in relation to the location of the Ponds site, which he deposed was at the corner of Wentworth Street and Riverbank Drive, The Ponds. Annexed to Mr McCauley’s affidavit of 10 August 2016 were the results of that search, namely the plan of Deposited Plan 1200915.
CONSIDERATION
Contraventions – Messrs Hanlon and Parker
The contraventions of s.500 of the FW Act alleged against Messrs Hanlon and Parker comprise a number of elements, all of which must be proved by the Commissioner. In making the following findings, I have kept in mind s.140 of the Evidence Act 1995 and the antecedent common law that informs it.
A permit holder cannot contravene s.500 unless the allegedly offending conduct occurred while the permit holder was exercising, or seeking to exercise, rights “in accordance with” pt.3-4 of the FW Act. The phrase “in accordance with” means “covered by” or “under”: Australian Building and Construction Commissioner v CFMEU (Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473 at 477 [5], 492 [84], 509 [181]. One of the rights “under” pt.3-4 of the FW Act is the right provided by s.484 to enter premises to hold discussions.
Permit holder
The first matter to be proved is that at all relevant times Messrs Hanlon and Parker were “permit holders” as defined by the FW Act. They admitted that fact in their amended defence.
Premises
The Commissioner contended that on 11 August 2014 the whole of the Ponds site was “premises” for the purposes of pt.3-4 of the FW Act, while the respondents’ position was that only that part of the site where construction was taking place ought be characterised as the site, the implication being that only that area was “premises” for the purposes of pt.3-4. The respondents argued that the function of the perimeter fence was simply to prevent people “accessing the site” and, noting what the car park area was used for and that there was a jersey kerb at the edge of the macadam, contended that the sealed car park area was not part of the “site proper”.
Section 12 of the FW Act defines “premises” as including:
(a)any land, building, structure, mine, mine working, aircraft, ship, vessel, vehicle or place; and
(b)a part of premises (including premises referred to in paragraph (a)).
The s.12 definition is inclusive and thus not limited by concepts of “site”, “site proper” or on the degree of work-related activity carried out at the location. In this case, the metes and bounds of the relevant premises were manifested by the perimeter fence which had gates that were closed at night. The implication of that fence was that it bounded a discrete area of land and its obvious purpose was to reserve to RCC the power to exercise control over who entered that land.
The contended distinction between the car park area and the areas where construction was under way is a false one. It was not demonstrated why the functional distinction between an area with sheds and another where construction was taking place, all within one large project site occupied by RCC, points to the relevant “premises” being only part of the project site rather than all of it. Given that the car park had been constructed as part of the project, as I accept it to have been, the implication of the respondents’ argument must be that the “premises” shifted from one location to another and from time to time as work progressed within the perimeter fence, which seems unlikely to be a correct application of that defined term. It is also an artificial approach given that workers circulated between the sheds in the car park area and the location of their work for the day, all within the perimeter fence.
It was also not demonstrated why, even if the area where construction was in train was “premises”, the car park area was not “premises” too. There is nothing in the FW Act’s definition of “premises” or use of that term that would necessarily foreclose that construction in this matter.
However, given the facts of this case, I find that the entire project site, bounded by the perimeter fence, was the one “premises” for the purposes of pt.3-4 of the FW Act.
In reaching this conclusion, I have not overlooked Mr McCauley’s affidavit affirmed 10 August 2016. As noted earlier, Mr McCauley was unable to reconcile the project site’s title details cited in a sub-contract with those disclosed by a title search of the site performed shortly before he affirmed his affidavit. However, according to Mr Buchanan, annexure ARB9 to his affidavit sworn 15 April 2016 was:
… the Overall Site Plan that was issued by NSW Public Works and the Department of Education and Communities. RCC was in control of the whole Site.
Exhibit 1 was a clearer copy of that document. Mr Buchanan deposed that the site “comprised the whole area” shown in that plan. It is numbered A101 and appears to show that the Ponds site comprised the entirety of the area depicted in the title search annexed to Mr McCauley 10 August 2016 affidavit. The information in Mr McCauley’s affidavit, coupled with that in Mr Buchanan’s affidavit, fortifies me in the conclusion I have reached as to what areas were comprised in the Ponds site “premises”.
Entered the premises
Given the conclusion I have reached regarding the identification of the premises in question I find that by entering the car park area, Messrs Hanlon and Parker “entered the premises”.
Failure to give 24 hours’ notice
It was not contested that Messrs Hanlon and Parker did not give notice under s.487 of the FW Act. The respondents’ case was that they did not need to.
Purpose of entry
The Commissioner’s allegation is that Messrs Hanlon and Parker entered the premises while exercising or seeking to exercise a right of entry under s.484 of the FW Act, which allows a permit holder to enter premises “for the purposes of holding discussions” with an employee or employees “who perform work on the premises” and “whose industrial interests the permit holder’s organisation is entitled to represent”. The respondents’ position is that Messrs Hanlon and Parker attended the site so Mr Parker could talk to RCC and Austar managers about suspected contraventions of the FW Act, an enterprise agreement and occupational health and safety issues.
In Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147, Charlesworth J said on the subject of “purpose”:
I proceed on the basis that the word “purpose” in s 484 of the FW Act is a reference to the subjective purpose of the permit holder and that the enquiry to be undertaken is one involving an assessment of the permit holder’s state of mind. Although it is not necessary for the [Commissioner] to prove, as an element of a contravention of s 500 of the FW Act, that the workers at the Site objectively had the characteristics prescribed in s 484 of the FW Act, the characteristics of the workers, as understood by the alleged contravenor, will be relevant in determining whether the contravenor exercised or was seeking to exercise a right of entry to premises for the subjective purpose of holding discussions with them … at [110]
Moreover, s.484’s operation is not restricted to persons whose entry onto premises is motivated only by one particular purpose: cf. Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 at 92 [8], 97 [39].
In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 at [72], White J considered what “discussions” under s.484 might be:
There is no reason to construe the word “discussions” in s 484 narrowly. To hold otherwise would be to confine the kinds of discussions which union officials generally may have in the course of their legitimate activities. The term should be given its ordinary meaning. That includes “talking something over”. Even a brief conversation comprising little more than an introduction and an enquiry as to whether a worker has any concerns may constitute a discussion in the relevant sense. There is no reason to incorporate into s 484 a requirement that the discussions be of a formal kind, concern the pursuit of an agenda, or be of some minimum duration. The section itself contemplates that the discussions may be with one or more employees. A discussion with an individual employee may of necessity be brief. Section 480 contemplates that the discussions may be with potential members, as well as existing members. Discussions with such persons may be of diverse kinds, again indicating that the term should not be given a narrow meaning. Sections 132 and 194 indicate that Pt 3-4 is intended to be the only prescription with respect to workplace entry by union officials, an intention which may well be frustrated if the term “discussions” was construed narrowly.
Those conclusions were not challenged in Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2017) 251 FCR 528, the appeal from his Honour’s decision, and respectfully I will be guided by them.
The respondents agreed that on 11 August 2014 Messrs Hanlon and Parker had wanted to interview workers. Such talks would have amounted to discussions for the purposes of s.484. However, submitted the respondents, they had not wanted to interview workers in a s.484 meeting but in a stop work meeting, which they argued was a different thing. They said in that regard:
The fundamental flaw in the applicant’s written submission is to confuse a purpose to request RCC to compel workers attend a stop-work meeting to be addressed by Parker with a purpose to enter premises to hold discussions with one or more employees … who wish to participate in those discussions under s 484 of the FW Act.
…
Stop work meetings are not provided for under Part 3-4 Division 2. Meetings must be in meal times or other breaks in work. The suggestion that a demand for management call a stop work meeting of any or all workers supports the requisite purpose for s 484 is risible. Such a request, if it relied on s 484, would be ridiculous and beyond credibility.
The principal distinction between a request for a stop work meeting and a request for a s.484 meeting was said to be that the latter was voluntary whereas a request for a stop-work meeting was:
… in essence, a request … for the employer to compel everybody to come to the meeting.
The point appears to have been that if workers attended discussions because they were compelled to, they could not be described as employees who “wish[ed] to participate in those discussions” as required by s.484(c).
However, Messrs Hanlon and Parker’s evidence, quoted earlier, does not indicate that they were asking that the Austar workers be compelled to attend the proposed meeting or reasonably believed that compulsion by RCC was practicable. Even Mr Buchanan’s version of events does not indicate that compulsion by RCC was contemplated. Both accounts simply record, at least in the initial stage, a wish by the officials to have discussions with workers whose industrial interests the CFMEU could represent. That satisfies the criterion found in s.484(c).
I do not find that statements in the site diary for 11 August 2014 contradict that conclusion. The statements were:
CFMEU came to site with no Right of Entry but entered site regardless with video cameras. The tried to hold a stop work meeting but could only talk to the guys already at the sheds having smoko …
The author of that entry was not identified but I accept that it was not Mr Buchanan. Another person’s understanding of the respondents’ request does not assist me to characterise the respondents’ intentions.
I consequently find that at least one of the reasons for the visit by Messrs Hanlon and Parker to the Ponds site on 11 August 2014 was to hold “discussions”, with Austar workers who met the descriptions found in s.484 of the FW Act.
Before leaving this topic it should be recorded that in final addresses the respondents suggested for the first time that their entry might have been pursuant so s.481 of the FW Act which relevantly provides:
481 Entry to investigate suspected contravention
(1)A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation:
(a) whose industrial interests the organisation is entitled to represent; and
(b) who performs work on the premises.
…
Sections 487, 498 and 500 of the FW Act apply to entries pursuant to s.481 in much the same way as they apply to entries pursuant to s.484 and so the contraventions found in this case would apply to the respondents’ conduct even were the visit on 11 August 2014 to have been pursuant to s.481.
Further, in circumstances where the respondents did not serve a notice under s.487, which pursuant to s.518 would have identified the statutory provision authorising entry, the character of their visit falls to be determined by their conduct. That the conduct in this case may have met the criteria of s.481, which was not explored, does not alter the fact that it met the criteria of s.484.
Failure to produce entry permits
The parties disagreed on whether, on the morning of 11 August 2014, Mr Buchanan had asked Messrs Hanlon and Parker to produce their right of entry permits. The principal evidence on that question is what Messrs Buchanan and Ward said on the one hand and what Messrs Hanlon, Parker and Rigby said on the other. Significantly, Mr Buchanan’s account is corroborated by the incident report, which Mr Buchanan deposed he completed “shortly after the union officials left the Site”, and the site diary for 11 August 2014 which Mr Ward described as being “about what happened”.
The respondents challenged the credibility of Mr Buchanan’s evidence and the reliability of the incident report.
The respondents argued that it would have been apparent to Mr Buchanan on 11 August 2014 that Messrs Hanlon and Parker were seeking a stop work meeting rather than discussions covered by s.484 of the FW Act. It was argued that, given those circumstances, it was illogical and not credible that Mr Buchanan would have demanded to see Messrs Hanlon and Parker’s right of entry permits, with the consequence that his evidence that he had done so could not be believed. However, I do not accept the respondents’ argument that Mr Buchanan would have known that Messrs Hanlon and Parker contemplated anything other than a s.484 meeting. As noted earlier, the evidence does not support a finding that they sought a meeting which Austar workers would be compelled to attend. Given those circumstances, it was credible and not illogical that Mr Buchanan would think that a meeting pursuant to s.484 was proposed and a request for entry permits would have been conduct consistent with that understanding.
The respondents also questioned why Mr Buchanan would have asked to see right of entry permits when these had not been sought previously. However, the circumstances and purpose of this visit were different from those of previous visits and I found Mr Buchannan’s evidence on the point persuasive:
MR PEARCE Why did you suddenly, having – for about four visits by Mr Hanlon to the office, where you had never asked for the 24 hours notice – why did you suddenly raise it now, on 11 August 2014?
MR BUCHANAN Because up until now Mr Hanlon hadn’t asked to – to get the whole site together to discuss concerns that they had, and it’s also not every day that you have the State Secretary of the CFMEU in your office. That raises a few alarm bells as well. [T88]
The respondents challenged the reliability of Mr Buchanan as a witness more generally. One aspect of the attack on Mr Buchanan concerned the parties’ differing accounts of conversations between Mr Hanlon and Mr Buchanan on 6 August 2014 from which the respondents extrapolated a submission that Mr Buchanan was not to be believed when he said that on 11 August 2014 he had told Mr Parker that he had not seen any evidence of underpayment of Austar workers and if there was any it ought to be provided so it could be investigated. Notwithstanding the ingenuity of the respondents’ arguments, the evidence does not support a finding that at any point prior to 11 August 2014 evidence of underpayment of Austar workers had been provided to Mr Buchanan, or that his statement it had not been was incorrect.
It was also submitted that Mr Buchanan had lied twice in his 21 November 2014 interview with FWBI Pascoe. The first lie was said to have been his statement that the MBA review had shown “a very minor underpayment” in circumstances where the MBA had also referred to other matters of concern. However, the respondents’ argument ignored the context in which the answer was given, which was a discussion of the wages the Austar workers were receiving. In context, Mr Buchanan’s answer was reasonable and not untruthful.
The second lie was said to have been the statement:
In this particular case we checked timesheets and - and did our own checks about what they said they were paying. Unfortunately, we weren't able to ascertain exactly [sic] payment to each person, that was beyond our scope, but we could see everything that they were telling us - it appeared that workers were being paid correctly, so once that was done we - we made payments to Austar.
The submission in relation to that passage was:
… Buchanan [sic] evidence was that he was unclear if he was referring in that statement [to] exhibits D [Mr Arends’s MBA report of 13 August 2013] and E. [Mr Arend’s 14 August 2014 email to Mr Buchanan attaching his report] In making that statement to the FWBC in context Buchanan was again conveying the view that the MBA check showed that the workers were being paid correctly. This was plainly a lie.
A review of the transcript of the interview reveals that Mr Buchanan was referring to neither ex. D nor ex. E but to the accountant’s report, ex. F. That report was referred to earlier in these reasons and supports the statement made by Mr Buchanan to which the respondents have taken objection.
The respondents also referred to FWBI Pascoe’s 10 November 2014 invitation to Mr Buchanan to participate in an interview. The invitation letter stated amongst other things:
Fair Work Building & Construction (FWBC) is conducting an investigation into allegations of suspected contraventions by you, of section 340, 345 of the Fair Work Act 2009 and the Building Code 2013 at the construction project known as The Ponds High School. It is alleged the suspected contraventions occurred on 6, 11, 27 August 2014 and on 4 September 2014.
It was submitted that the interview was a “pressure point” for Mr Buchanan and that “by the time he got to the interview he had settled on a format of what had occurred on that day” and used the interview as an opportunity to make allegations against Messrs Hanlon and Parker in order to distract attention from himself. However, the transcript of that interview reveals that Mr Buchanan relevantly did no more than repeat the substance of the incident report after FWBI Pascoe had shown it to him, had him identify it and then had him explain what had happened that day “from start to finish”. I reject the implication that his evidence to FWBI Pascoe was a fabrication.
The respondents also submitted that the incident report was not to be accepted as a contemporaneous record because the second and third pages of the complete version of the document were blank where, the respondents argued, RCC’s subsequent actions to inquire into Austar’s treatment of its workers should have been recorded. The principal implication of that submission was that Mr Buchanan was not truthful when he told the Court that he had completed the incident report shortly after Messrs Hanlon, Parker and Rigby left the site on 11 August 2014, a contention that was not put to him. The other implication of the submission, that the second and third pages of the report should have been completed, was also not put to Mr Buchanan although it was far from obvious that pages two and three needed to be completed. This is because the report concerned the nature of the CFMEU officials’ conduct at the site on 11 August 2014 whereas RCC’s subsequent conduct addressed the reasons for their visit.
Those contentions should have been put to Mr Buchanan so he could deal with them: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 23-24. It should be noted in that connection that, at the request of the respondents at the end of his cross-examination, Mr Buchanan was not excused until a point after the tender of the incident report. In the circumstances it would be unfair to accept the respondents’ submission that I should disbelieve Mr Buchanan’s evidence concerning when the incident report was created.
The challenges to Mr Buchanan’s credit which I have rehearsed have been unsuccessful.
I consequently accept the incident report to be an almost contemporaneous record of the meeting in the RCC management shed on 11 August 2014 and I also accept its accuracy. The substance of that report is reflected in Mr Buchanan’s account of the verbal exchanges which took place there that morning, which I consequently accept. As Mr Ward’s account of the meeting reflects Mr Buchanan’s I also accept it. To the extent that those accounts differ from the recollections of Messrs Hanon, Parker and Rigby, I prefer Messrs Buchanan and Ward’s accounts, supported as they are by the incident report.
Because I prefer Messrs Buchanan and Ward’s accounts of their conversations with Messrs Hanlon and Parker in the RCC site office on 11 August 2014, I find that Messrs Hanlon and Parker failed to produce their entry permits on 11 August 2014 when asked by Mr Buchanan to do so.
Before moving from this issue, I should also record that I found aspects of the respondents’ evidence to be unpersuasive. Mr Hanlon gave inconsistent versions of when Mr Buchanan allegedly said that there was to be a smoko break at which Mr Parker could address the workers, the effect of one of those versions being that he could not have known to tell workers that there was to be a meeting “at smoko”. Mr Parker gave inconsistent evidence concerning the point at which he had determined to hold discussions with workers, one being before arriving at the RCC site office and another being after Mr Buchanan was not “co-operative”. Added to this was a lack of frankness in Mr Hanlon’s frequent use during his cross-examination of the qualification “possibly”, which suggested evasiveness, and his unwillingness to acknowledge the correctness of the A Current Affair transcript of things he said on the day although the respondents did not challenge its correctness.
Remaining on premises
I further find that, notwithstanding that they had not given notice of their visit and had failed to produce their entry permits on request, Messrs Hanlon and Parker remained on the premises until they had participated in a meeting with such site workers as were willing to attend.
Breach of s.500
Because of the conclusions I have reached concerning the purpose of their visit to the Ponds site on 11 August 2014, I find that Messrs Hanlon and Parker were at that time seeking to exercise rights of entry provided to them by s.484 of the FW Act. They were only seeking, or attempting, to exercise those rights, rather than actually exercising them, because they had not given notice under s.487 and so were not authorised to exercise their s.484 rights of entry: Laverton North and Cheltenham Premises Case at 125 [1], 488 [62], 493 [88] and 157 [179], [180]. They also failed to produce their entry permits on request, contrary to s.489. In that connection it should be recalled that s.486 provides that a permit holder is not authorised to enter or remain on premises if he or she contravenes any one of ss.487 to 493, inclusive.
In Director of theFair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [170]-[172] White J, referring to earlier authority, found in the context of s.500 that impropriety consists in a breach of the standards of conduct that would be expected of a person in the permit holder’s position by reasonable persons with knowledge of the circumstances of the case as well as of the duties, powers and authority of the permit holder. The meaning of “improper” in s.500 was further considered in the Laverton North and Cheltenham case where it was held by Allsop CJ (at 487 [6]-[7]) and White J (at 512 [200]-[201]) that non-compliance with s.487 or 489 does not, ipso facto, amount to improper conduct for the purposes of s.500. Something more is needed. On remittal in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 at [17], Bromberg J commented on those findings as follows:
The analysis draws attention to the distinction between the legal consequence and the practical consequence of a failure by a permit holder to give notice of an intended entry and show his or her entry permit on the request of the occupier. The legal effect of the failure to satisfy the statutory requirements of ss 487 or 489 is given by s 486 which removes what would otherwise have been the permit holder’s statutory authority to enter and remain on the premises. In other words, the legal effect of the failure to satisfy either of ss 487 or 489 is to render the entry unlawful, unless it is otherwise made lawful by the grant of the occupier’s permission or by some other means. That is the place or role of ss 487 and 489 in effectuating the right of entry scheme provided for by Part 3-4 of the FW Act …
The finding in the Laverton North and Cheltenham case, which the present parties addressed in further submissions, means that Messrs Hanlon and Parker’s failure to give notice and to produce entry permits, contrary to ss.487 and 489 respectively, did not, simpliciter, amount to improper conduct. Attention must focus on how Messrs Hanlon and Parker conducted themselves at the Ponds site on 11 August 2014. It should also be recorded that the decision in Laverton North and Cheltenham case rendered otiose some of the submissions the parties had made before it was delivered.
Because I prefer Mr Buchanan’s account, I find that in the conversation in the RCC site office on 11 August 2014, Mr Parker said to Mr Buchanan that he did not “care about the paperwork” relevant to his request to speak to the Austar workers and did not care that he did not have it. I further find that he spoke in an aggressive way and told Mr Buchanan that he would round up the workers himself if Mr Buchanan would not do it and also said “you will do what I fucking say” and “don’t fuck me around”. In reaching that conclusion I have not overlooked Mr Rigby’s evidence that the conversation did not become heated but I give it little weight as he said that he had not stood particularly close to Mr Parker and Mr Buchanan whereas Messrs Hanlon, Parker and Buchanan all said that he, with Mr Hanlon, had stood “with” Mr Parker. To be contradicted on a matter as material as physical proximity to an obviously relevant conversation leads me to question the accuracy of his recollection.
Mr Parker’s contemptuous disdain for statutory preconditions to lawful entry on others’ premises, manifested by the way he spoke to Mr Buchanan was, I find, improper conduct in the relevant sense in that it was a breach of the standards of conduct that reasonable persons with knowledge of the relevant circumstances and of Mr Parker’s duties, powers and authority, would expect of a person in Mr Parker’s position.
The respondents’ improper conduct was not limited to the site office. I find that Mr Buchanan told Mr Parker that neither he nor Messrs Hanlon and Rigby were allowed to enter the Ponds site without notice of entry and production of their entry permits. And yet that is what they did, Mr Hanlon proceeding into the construction site, as he himself said, and both he and Mr Parker remaining in the car park area until at least the end of the meeting that was filmed by A Current Affair.
It can be inferred from Mr Hanlon’s agreement that he had been standing with Mr Parker during his conversation with Mr Buchanan that he heard what Mr Buchanan said, notwithstanding that he denied the relevant burden of Mr Buchanan’s evidence concerning that part of the conversation. As stated earlier, I prefer Mr Buchanan’s account of the exchanges in the RCC site office over those of Mr Hanlon. Mr Hanlon’s action in entering that part of the site where construction was proceeding, was not sanctioned by the FW Act and was not lawful because Mr Buchanan had told the CFMEU officials not to enter the site, which the respondents agreed included “the site proper”. Mr Ward’s evidence, which I accept, was that Mr Hanlon was not accompanied by an RCC employee while he was on “the site proper”. During his time on that part of the premises Mr Hanlon told workers:
… that we were having a meeting at smoko
even though Mr Buchanan had said that he would not allow the workers to be called together. I find that this conduct was improper.
Similarly improper was Messrs Hanlon and Parker’s presence in the car park, which I have found was part of the premises, in pursuit of the meeting that Mr Buchanan had told them would not be permitted. Aggravating that impropriety was the fact that Mr Parker then proceeded to address workers even though Mr Buchanan had made it clear that RCC did not consent to a meeting being held unless the requirements of the FW Act had been satisfied. In that connection I reject as contrary to the evidence I have accepted, Mr Hanlon’s statement that Mr Buchanan said:
They’re coming here for smoko anyway, so you can talk to them then.
Mr Parker’s contention that Mr Ward had said those words to him in the car park after the meeting in the RCC site office was not put to Mr Ward for his comments and so must be given diminished weight. Such evidence as Mr Ward gave relevant to the subject was to the effect that he had not spoken to Mr Parker in the car park after the meeting in the RCC site office. In any event, I reject the proposition as quite improbable in the circumstances, given that it would have been contrary to what had been said on behalf of RCC by Mr Ward’s superior, Mr Buchanan, during the meeting in the RCC site office at which Mr Ward had been present.
Nonetheless, I am not persuaded that Mr Parker threatened to “pull up the job”, as was alleged. That allegation is based on what Mr Parker said to workers at the meeting recorded by A Current Affair. The transcript of parts of that meeting, annexed to Mr Roll’s affidavit, relevantly records that after referring to having “pulled up” another job in Blacktown where, it was alleged, foreign workers were being exploited, Mr Parker said:
…
Have a look around. How many of the [Austar] workers are here? Right. There's at least 30 of them working out there in the workplace at the moment and they've all been instructed by their boss “No, you stay at work”. Why? Because of the rorts that are going on. We're not going to stand for it.
So what we want to do here today is get a resolution from youse blokes that we need, if we need your support, youse’ll come and pull up the job until we get this sorted out.
…
Well I wouldn't mind if we see a show of hands. Don't be scared just coz the cameras are around. But I want to see a show of hands. If we can get it, a resolution off you I'm going to let youse get back to work, but if we need youse to stop work on the job until we sort it out, because we're going back into the management after this meeting …
…
All right fellas, thanks very much hey. Thanks for your support. OK.
Go back to work and if we need to pull it up we’ll pull it up. Right? That was the resolution.
…
However that conduct might be characterised, evidence of there having been a threat is absent. There is no evidence of the substance of that resolution having been communicated to any of the employers on the site, or of the terms of any such communication. This allegation is not made out.
Contraventions – CFMEU
The Commissioner alleged that the CFMEU had contravened s.500 because, by virtue of s.793, it was liable for the conduct of its officials. However, s.793 does not have that effect in relation to contraventions of s.500: Australian Building and Construction Commissioner v Harris [2017] FCA 733; Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393. The allegation that the CFMEU is liable in its own right for Messrs Hanlon and Parker’s contraventions of s.500 is not made out.
APPLICATION TO DISMISS PROCEEDING
Following the conclusion of the evidence the respondents filed an application in a case seeking the following orders:
1. That the Application and Statement of Claim be dismissed as an abuse of process because it was commenced for an improper purpose and accordingly continuation of the proceedings would be miscarriage of justice.
2. That the Application and Statement of Claim be dismissed as an abuse of process because of the Applicant's failure to disclose material and accordingly continuation of the proceedings would be miscarriage of justice.
3.In the alternative to Order 1, that the Application and Statement of Claim be stayed until the Applicant and the investigation officer Mr Pascoe are called to give evidence.
This proceeding was originally brought by the Director of the Fair Work Building Industry Inspectorate (“Director”). On 9 November 2017, I ordered that the Commissioner replace the Director as applicant in this proceeding. This followed the repeal of the Fair Work (Building Industry) Act 2012 by the Building and Construction Industry (Improving Productivity) Act 2016 on 2 December 2016, a consequence of which was the abolition of the position of Director. However, through the operation of statute, the holder of that office at the time of its abolition became the Commissioner: item 4 of sch.2 to the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016. The parties did not address the Court on the significance those matters might have to the respondents’ application in a case. I will proceed on the basis that it had no significance and that the arguments against the Director applied equally to the Commissioner: items 19 and 24 of sch.2 to the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016.
The respondents submitted that the Director had had information which he had not pursued and that he had failed to investigate the circumstances on 11 August 2014 “and before and afterwards”. They submitted that the MBA review and the David Hicks & Co report had raised serious issues about whether RCC and Mr Buchanan had complied with “workplace relations laws” and that the Director had adduced evidence from FWBI Rolls, who had had limited involvement in the case, but had not called FWBI Pascoe “who was in charge of the investigation”.
The respondents relied on the 22 July 2016 affidavit of their solicitor, Mr McCauley. At the time that affidavit was read, the application in a case had not been filed and the relevance of its paras.10 to 19 was not apparent. Consequently a ruling on their admissibility was reserved. The application in a case having been filed subsequently and the relevance of those passages now being clear, I rule that those paragraphs should be admitted into evidence.
The respondents’ first contention was that the Director had, at an earlier time, held a view as to the respondents’ purpose for entering the site on 11 August 2014 different from the one alleged against them in this proceeding. However, the documents said to support that contention were not admitted into evidence and so that argument goes nowhere.
The remaining arguments were that:
a)there had been a failure to follow up “leads” which might have supported a hypothesis consistent with Messrs Hanlon and Parker having attended the Pond site with the purpose of talking to RCC and Austar managers based on genuine concerns about suspected contraventions of the FW Act, the enterprise agreement and occupational health and safety matters;
b)evidence had been withheld from the respondents and the Court which might have supported that hypothesis. This argument advanced in the respondents’ written submissions on the application in a case was not withdrawn although other arguments that information was not provided to the respondents were; and
c)although the proceeding had been commenced on a wrong appreciation of the facts relating to Messrs Hanlon and Parker’s conduct on the site, the Director nevertheless persevered with it. The respondents submitted that this conduct reflected a desire to use the proceeding to vilify Messrs Hanlon and Parker on a factual basis that was not prosecuted in the proceeding;
with the consequence that the proceeding amounted to a serious abuse of duty by the Director, whose role was similar to that of a prosecutor, and a miscarriage of justice.
As to the first of the respondents’ three arguments, the outcome of this proceeding did not turn on whether Messrs Hanlon and Parker, or either of them, attended the Ponds site to talk to RCC and Austar managers because they had genuine concerns about suspected contraventions of the FW Act, the enterprise agreement and occupational health and safety matters. It turned instead on whether they attended the site because they wanted to hold s.484 discussions. Importantly, those were not mutually exclusive motivations. In circumstances where I have held that the respondents did want to hold s.484 discussions, whether they also wanted to talk to RCC and Austar managers for the stated reasons was a matter of no determinative significance. As a result, any failure by the Director to follow up “leads” related to that issue is also of no determinative significance and need not be considered further.
For the same reasons the respondents’ second argument, that evidence supporting the first argument had been withheld from them, takes the matter no further.
The third argument was to the effect that this proceeding was brought to vilify Messrs Hanlon and Parker rather than to enforce or encourage observance of the FW Act. However, the argument was premised on the evidence that was not adduced and so cannot be made out. In any event, the Court cannot review the decision to bring this proceeding: Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500 at [3].
In all of the circumstances, the arguments advanced have not persuaded me that the orders sought in the respondents’ application in a case filed should be made.
CONCLUSION
There will be declarations that:
a)on 11 August 2014 Mr Hanlon acted in an improper manner and so contravened s.500 of the FW Act by entering the Ponds site and, having sought to exercise rights under pt.3-4 of the FW Act, remained on the site although he had failed to give notice of entry and refused to produce his entry permit;
b)on 11 August 2014 Mr Parker acted in an improper manner and so contravened s.500 of the FW Act by entering the Ponds site and, having sought to exercise rights under pt.3-4 of the FW Act:
i)remained on the site although he had failed to give notice of entry and had refused to produce his entry permit;
ii)responded in an inappropriate, aggressive or intimidatory manner to lawful requests to see his entry notice and entry permit; and
iii)spoke to workers without authority to do so.
The matter will stand over for directions.
I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 16 December 2020
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