FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) [2019] FCA 1052
File number: QUD 388 of 2016 Judge: COLLIER J Date of judgment: 9 July 2019 Catchwords: INDUSTRIAL LAW – alleged contraventions of Fair Work Act 2009 (Cth) ss 417(1) and 500 – whether contractors and subcontractors authorised or agreed to conduct of Union representatives – entry permits and entry notices – whether “open door” policy or requirement for Union representatives to give notice before entering site – where Union representative claimed to have entered site to raise money for injured Union worker and workers took opportunity to raise workplace issues – genuine and reasonable concerns about imminent risks to health and safety
INDUSTRIAL LAW – whether Union representatives organised work stoppages – whether stoppages authorised by enterprise agreements – interpretation of “industrial action” – onus of proving the “organising” of industrial action within meaning of Fair Work Act 2009 (Cth) s 19(2) – whether Union representatives exercised or sought to exercise rights under Fair Work Act 2009 (Cth) Pt 3-4 – whether Union representatives “involved in” contraventions of civil remedy provisions – accessorial liability – aiding and abetting contraventions
INDUSTRIAL LAW – whether respondent Union liable for contraventions of Union representatives pursuant to Fair Work Act 2009 (Cth) ss 550 and 793 – whether Union representatives intentionally hindered or obstructed or acted improperly – whether Union representatives acted with actual or apparent authority – where individual respondents “clothed with apparent authority”
Legislation: Fair Work Act 2009 (Cth) ss 12, 19, 19(1), 19(1)(b), 19(2), 19(2)(a), 19(2)(b), 19(2)(c), 417, 417(1), 417(1)(a), 478, 484, 486, 487, 489, 500, 500(2), 512, 545, 550, 550(2)(c), 793, Pt 3-4 Div 2, Pt 3-4, Pt 3-4 Div 2 Subdivs A, AA, B, Pt 3-4 Div 3, Pt 3-4 Div 4
Workplace Relations Act 1996 (Cth)
Property Law Act 1974 (Qld) s 55
Work Health and Safety Act 2011 (Qld) ss 117, 119, 121(1), 122
Fair Work Bill 2008 (Cth)
Cases cited: Always Resource Holdings Pty Ltd v Samgris Resources Pty Ltd [2017] QSC 74
Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191
Apple and Pear Australia Ltd v Pink Lady America LLC [2016] VSCA 280
Asia Pacific Joint Mining Pty Ltd v Always Resource Holdings Pty Ltd [2018] QCA 48; (2018) 3 Qd R 520
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88; (2018) 357 ALR 510
Australian Building and Construction Commissioner v Huddy [2017] FCA 739
Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088
Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797; (2017) 252 FCR 393
Australian Workers' Union v Leighton Contractors Pty Limited [2013] FCAFC 4; (2013) 209 FCR 191
Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88
Banque Commerciale S.A, en Liquidation v. Akhil Holdings Ltd. (1990) 169 CLR 279
Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30; (2016) 92 NSWLR 639
BlueScope Steel Limited v Australian Workers’ Union [2018] FCA 1574
Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64; (2016) 242 FCR 46
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77; (2017) 251 FCR 528
Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87
Director of the Fair Work Building Industry Inspectorate v McCullough [2016] FCA 1291
Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456
Freeman & Lockyer (A Firm) v Buckhurst Park Properties (Magnal) Ltd [1964] 2 QB 480
Software AG (Australia) Pty Ltd v Racing & Wagering Western Australia [2009] FCAFC 36; 175 FCR 121
Vines v Djordjevitch (1955) 91 CLR 512
Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223
Date of hearing: 9-12 April 2018 and 23 July 2018 Registry: Queensland Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 258 Counsel for the Applicant: Mr CJ Murdoch QC with Mr S Mackie Solicitor for the Applicant: Clayton Utz Counsel for the Respondents: Mr WL Friend with Mr CA Massy Solicitor for the Respondents: Hall Payne ORDERS
QUD 388 of 2016 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: JADE INGHAM
First Respondent
MICHAEL MYLES
Second Respondent
ANDREW SUTHERLAND (and others named in the Schedule)
Third Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
9 JULY 2019
THE COURT ORDERS THAT:
1.By 4.00 pm on 24 July 2019 the parties file draft orders, if possible by consent, giving effect to the reasons for judgment in Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) [2019] FCA 1052 delivered 9 July 2019.
2.The matter be listed for case management on 31 July 2019 at 9.30 am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
BACKGROUND
[4]
CLAIMS OF THE ABCC
[25]
DEFENCE
[32]
PRINCIPAL ISSUES IN DISPUTE
[35]
1. 26 JUNE 2014
[40]
Organising industrial action
[40]
(a) Did Mr Ingham organise the stoppage within the meaning of s 417(1)?
[40]
(b) In the event that Mr Ingham did not organise the stoppage, did he involve himself within the meaning of s 550?
[70]
Right of entry contraventions
[90]
(a) Was Mr Ingham exercising or seeking to exercise a right conferred by Pt 3-4?
[90]
(b) When Mr Ingham was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
[108]
Conclusion
[109]
2. 27 JUNE 2014
[110]
Organising industrial action
[110]
(a) Who bears the legal onus in respect of disproving or proving that circumstances identified in s 19(2) applies?
[110]
(b) Was the stoppage industrial action within the meaning of s 19?
[127]
(c) If the stoppage was industrial action, did Mr Myles organise the stoppage within the meaning of s 417(1)?
[159]
(d) In the event that Mr Myles did not organise the stoppage, did he involve himself within the meaning of s 550?
[160]
Right of entry contraventions
[161]
(a) Was Mr Myles exercising or seeking to exercise a right conferred by Pt 3-4?
[161]
(b) When Mr Myles was at the Project Site, was the hindrance or obstruction caused by Mr Myles intentional or did Mr Myles otherwise act improperly?
[179]
Conclusion
[190]
3. 1 JULY 2014
[191]
Right of entry contraventions
[191]
(a) Was Mr Griffin seeking to exercise a right conferred by Pt 3-4?
[191]
(b) If Mr Griffin was seeking to exercise a state or territory right of entry in accordance with Pt 3-4, did he intentionally hinder or obstruct Watpac or otherwise act improperly?
[199]
Conclusion
[213]
4. 4 JULY 2014
[214]
Right of entry contraventions
[214]
(a) Was Mr Griffin seeking to exercise a right conferred by Pt 3-4?
[214]
(b) If Mr Griffin was seeking to exercise a state or territory right of entry in accordance with Pt 3-4, did he intentionally hinder or obstruct Watpac or otherwise act improperly?
[218]
Conclusion
[219]
5. 7 JULY 2014
[220]
Organising industrial action
[220]
(a) Did Mr Sutherland organise the stoppage within the meaning of s 417(1)? or
[220]
(b) In the event that Mr Sutherland did not organise the stoppage, did he involve himself within the meaning of s 550?
[220]
Right of entry contraventions
[232]
(a) Was Mr Sutherland seeking to exercise a right conferred by Pt 3-4?
[232]
(b) When Mr Sutherland was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
[232]
Conclusion
[235]
6. 17 JULY 2014
[236]
Organising industrial action
[236]
(a) Was the stoppage authorised by the sub-contractor EBAs?
[236]
(b) Did Mr Bragdon organise the stoppage within the meaning of s 417? or
[239]
(c) In the event that Mr Bragdon did not organise the stoppage, did he involve himself within the meaning of s 550?
[239]
Right of entry contraventions
[245]
(a) Was Mr Bragdon seeking to exercise a right conferred by Part 3-4? and
[245]
(b) When Mr Bragdon was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
[245]
Conclusion
[249]
7. CLAIMS AGAINST THE SIXTH RESPONDENT
[250]
Conclusion
[257]
APPROPRIATE ORDERS
[257]
REASONS FOR JUDGMENT
COLLIER J:
This is an amended originating application brought by the Australian Building and Construction Commissioner (ABCC) against the Construction, Forestry, Maritime, Mining and Energy Union (Union) and five officials of the Union, being Messrs Jade Ingham, Michael Myles, Andrew Sutherland, Chad Bragdon and Kevin Griffin. In its application the ABCC seeks extensive declaratory relief for alleged contraventions of ss 417(1) and 500 of the Fair Work Act 2009 (Cth) (FW Act) in relation to events at the 180 Brisbane Construction Project (the Project Site) involving employees of Watpac Construction Pty Ltd (Watpac) and Talbrace Services Pty Ltd (Talbrace). The ABCC also seeks the imposition of pecuniary penalties against all respondents under s 545 of the FW Act, and an order that such penalties be paid to the Consolidated Revenue Fund of the Commonwealth. The respondents deny liability for all alleged contraventions.
I note that the matter was held in abeyance awaiting the outcome of judgments involving the question of the ability of a body corporate such as the Union to be liable for a contravention of s 500 of the FW Act. The Union accepts, however, that following the delivery of decisions in Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797; (2017) 252 FCR 393 and Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088, if the ABCC can make out the alleged contraventions of s 500 of the FW Act against the individual respondents and the elements of s 793 of the FW Act, the Union will be liable pursuant to s 550 of the FW Act as a person involved in the contraventions of the individual respondents.
The parties filed a Statement of Agreed Facts in the proceedings. It is helpful to have regard to this as well as evidence before the Court in setting out the background to these proceedings.
BACKGROUND
At all material times work on the Project Site involved the construction of a 34 storey office tower, at an estimated cost of $200 million. Construction commenced in or around May 2013, and was in progress in June and July 2014.
Watpac was the principal contractor at the Project Site, and for the purposes of the FW Act was the occupier of the Project Site. At all material times Watpac was in management and control of the Project Site.
Watpac employed workers (Watpac Employees) to perform construction work on the Project Site, including in the roles of crane operators, hoist drivers, traffic controllers and general labourers.
Watpac also engaged numerous subcontractors to work on the Project Site including ECB Scaffolding Pty Ltd, Oneform, Marveldale Pty Ltd, Specialised Concrete Plumbing, Talbrace and Tensioned Concrete Pty Ltd (Project Subcontractors). The Project Subcontractors and their employees performed work in structural trades on the Project Site, including formwork, blocklaying, steelfixing, concreting and concrete pumping.
A Project Safety Management Plan had been promulgated by Watpac. The Project Subcontractors were contractually bound to comply with that document.
Each of the Project Subcontractors had an approved enterprise agreement (EBA) within the meaning of ss 12 and 417(1)(a) of the FW Act with the Union. Each agreement was operative at all material times, and contained the following terms:
8.1… Authorised Representatives of Employee Organisations (AREOs) under the Workplace Health and Safety Act are not required to provide any information or particulars of any suspected contravention of safety law prior to conducting inspections or discussions on site.
…
33.4A standing invitation exists for any representative of the Union covered by this agreement to enter any place where company employees or representatives are for purposes including, but not limited to, dispute resolution or consultation meetings but not for purposes for which a Right of Entry exists under Part 3-4 of the Fair Work Act.
…
33.9Employees are entitled to have paid time off to attend union meetings of up to 2 hours (or more by agreement) or participate in union activities.
At material times the individual respondents were employees and officers of the Union, and held the following positions with the Union:
(a)Mr Ingham: Assistant Divisional Branch Secretary
(b)Mr Myles: Organiser
(c)Mr Sutherland: Crane Co-ordinator
(d)Mr Bragdon: Organiser
(e)Mr Griffin: Organiser.
Each of the individual respondents held entry permits under the FW Act and the Work Health and Safety Act 2011 (Qld) (WHS Act).
The Union at all material times was entitled to represent the industrial interests of (inter alia) Watpac Employees and employees of Project Subcontractors.
The workers on the Project Site had lunch room sheds (Sheds) at the Project Site on basement level 3 of the building under construction.
In or around June and July 2014 work was being undertaken in respect of completion of works on level 6 of the building under construction.
Watpac sought to limit the conditions on which visitors could enter the Project Site, including requirements that they:
·report to the site office located off Ann Street;
·sign a visitor’s register;
·be inducted for the Project Site, or otherwise be escorted around by a person who had been inducted; and
·wear appropriate personal protective equipment.
On 19 June 2014 Mr Drew Brockhurst, the Watpac State Manager Construction (Qld and NT), wrote to the Queensland Secretary of the Union to the effect that Watpac was updating its right of entry process for entry on to Watpac-controlled sites. In particular Mr Brockhurst stated that:
·Due to changes in the WHS Act, Watpac was updating its right of entry process;
·All entry notices for Watpac construction projects should be sent by the Union via email to Watpac’s Queensland Head Office;
·In order to enter any Watpac construction site, Watpac would require the Union and its representatives to issue a valid notice of entry and hold a valid and correct entry permit (including under the FW Act and the WHS Act);
·Access to Watpac construction sites would be strictly in accordance with all statutory obligations, including the relevant entry notice and Watpac’s site safety protocols.
Watpac posted relevant signage at the gates, entry points and in the Project Site office in respect of the protocols and requesting visitors to sign the Visitor’s Book.
In summary, the following events occurred on the material dates.
On 26 June 2014:
·A 20-minute morning tea break for workers was scheduled to occur between 9.00 am and 10.30 am
·Prior to 9.50 am Mr Ingham and Mr Myles entered the Project Site and went to basement level 3.
·Neither Mr Ingham nor Mr Myles presented Watpac with notices of proposed entry in accordance with the timeframe stipulated by ss 119 or 122 of the WHS Act.
·Mr Ingham and Mr Myles did not attend the Site Office, or sign the Visitor’s Register prior to entering the Project Site.
·Mr Bradley Ross, the Project Manager for Watpac for the Project, approached Mr Myles and Mr Ingham. Mr Myles said to Mr Ross:
We are here to raise money for a fellow member who was injured in Bali.
·Mr Ross then had a discussion with Mr Ingham, in which Mr Ingham said no right of entry notice had been issued.
·Mr Ingham entered the lunchroom at the Project Site where a large number of workers employed by the Project Subcontractors were present for morning tea.
·At around 10.35 am approximately 110 employees left the Project Site and did not return to their normal duties that day. Those employees included Watpac Employees and workers employed by Talbrace.
On 27 June 2014:
·At approximately 6.10 am Mr Myles went into the Project Site Office and had a discussion with Mr Ross.
·Mr Myles then went on to the Project Site and spoke with workers employed by Project Subcontractors including employees of Talbrace.
·No notice was given by Mr Myles to Watpac of the proposed entry on to the Project Site, and Mr Myles did not sign the Visitor’s Register prior to entering the Project Site.
·At approximately 6.45 am Mr Ross had a conversation with either Mr David Geelan or Mr Brian Baker (both of whom were Watpac Employees and representatives of the Union). Mr Ross was informed that the Safety Committee had gathered a requested a safety walk through the floors.
·The workers remained in the Sheds and did not commence work.
·Messrs Myles, Baker, Geelan and Ross, and the Safety Committee, then proceeded to level 5 of the Project Site. One of Messrs Myles, Baker or Geelan stated that there was an issue of stair access to Fire Stair Two between level 5 and level 6. Mr Myles stated that in an emergency the stairs were not suitable to remove an injured worker via a stretcher, that it was a union requirement to have two sets of stretcher stairs at all times servicing all floors, and accordingly no works were to be performed on levels 5 and 6 until the access was rectified. Mr Ross stated that the Site had four points of emergency egress from the working decks.
·Messrs Myles, Baker, Geelan, Ross and the Safety Committee then proceeded to level 3 of the Project Site. Level 3 was declared safe for workers to return.
·Mr Myles said that he was taking the Safety Committee back to the lunch room where the workers of the Project Subcontractors, including Talbrace and Tensioned Concrete, were located, to report back on the findings of the Safety Committee.
·During this time the services trades continued their usual duties on the Project Site.
·Mr Myles stated that no productive work would continue from level 4 of the Project Site upwards.
·At approximately 7.45 am some employees of Project Subcontractors returned to work on level 3 of the Project Site, however crane drivers employed by Watpac and Talbrace employees did not.
·A rectification crew comprised of three Oneform workers performed work in respect of Fire Stair 2 as well as the alignment of several props between levels 5 and 6.
·At around 9.00 am two inspectors from WHSQ, Mr Mark Norris and Mr John Barber, arrived at the Project Site and, after inspecting levels 5 and 6, told Mr Ross that the access provided by Watpac to Fire Stair 2 was suitable.
·At around 10.45 am a drill was undertaken of carrying a stretcher down Fire Stair 2. Mr Myles participated in this drill.
·At around 11.30 am several Safety Committee members undertook a drill of carrying a stretcher from level 6 to level 5. Messrs Myles, Geelan and Baker participated in that drill.
·At around 12.30 pm WHSQ inspectors Mr Chris Phelan, Ms Kym Tollenaere, Mr Barber and Ms Deborah Dargan arrived at the Project Site and met with the Safety Committee on level 5. Mr Myles spoke to Ms Tollenaere and Ms Dargan, and said to the Safety Committee words to the effect “return to the sheds”.
·Mr Phelan, Mr Barber, Ms Tollenaere and Ms Dargan inspected level 5 again, and confirmed that access to the floor was adequate.
·Mr Ross told Messrs Geelan and Baker that the inspectors would talk to the Safety Committee about their findings. Mr Geelan or Mr Baker told Mr Ross that the Safety Committee would not meet until the WHSQ inspectors had left the site. Mr Phelan, Mr Barber, Ms Tollenaere and Ms Dargan left the Project Site at approximately 2.00 pm.
·At all times workers (other than those who had returned to work at 7.45 am) remained in the Sheds on the Project Site.
·A meeting took place involving Messrs Myles, Ross, Daniel Butler (Project Safety Coordinator, Watpac), Brian Lewis (Watpac Safety Manager) and John Boye (Site Safety Advisor) or around 2.30 pm, involving (inter alia) a discussion concerning the possibility of rebuilding stretcher stairs
·Workers of the Project Subcontractors then left the Project Site.
·The respondents admit that the meetings Mr Myles held with the workers and/or the stoppage on 27 June 2014 hindered or obstructed Watpac from carrying out its usual work on the Project Site on 27 June 2014.
On 1 July 2014:
·At approximately 6.00 am Mr Griffin arrived at the Project Site office, wearing Union-branded clothing and carrying Union-branded materials.
·Mr Griffin introduced himself to Mr Ross as an organiser with the Union. He stated that he intended to meet with Union members to discuss safety issues, and went into the lunch room where workers were gathered.
·It is not in dispute that Mr Griffin did not provide Watpac with notice of his proposed entry in the form and timeframe stipulated by ss 119 or 122 of the WHS Act, or that Mr Griffin did not sign the Project Site visitor register.
·At approximately 6.45 am the Safety Committee including Messrs Baker and Geelan, and Messrs Ross and Griffin proceeded to the upper floors of the building under construction.
·Mr Griffin engaged in discussions with the members of the Safety Committee, asking them if they considered that access to the floors was suitable.
·Mr Ross provided the Safety Committee and Mr Griffin with a report following the 27 June 2014 visit of the WHSQ inspectors, which stated that the access provided by Watpac was adequate and that there were other means of emergency egress on site.
·The Safety Committee and Messrs Ross and Griffin proceeded to level 5 of the building under construction.
·Mr Griffin asked the Safety Committee when their meetings would be held, and said that he would attend those meetings.
·Mr Griffin and the Safety Committee then attended the lunch room and addressed workers present (including workers employed by Talbrace and Tensioned Concerete)
·At around 8.30 am workers of the Project Subcontractors commenced work on all floors on the Project Site.
·Mr Griffin then left the Project Site.
On 4 July 2014:
·At around 6.30 am Mr Griffin arrived at the Project Site Office and spoke with Mr Ross. Mr Griffin asked Mr Ross inter alia to attend a meeting of workers to hear worker concerns and provide undertakings from Watpac regarding those concerns.
·Mr Griffin did not provide an entry notice in respect of this attendance, nor did he attend the Project Site office or sign the visitor’s register at the Project Site.
·At around 6.35 am Mr Ross attended a meeting of Project Subcontractor employees. At that meeting Mr Griffin said words to the effect that workers should raise issues with Mr Ross. The workers raised issues including that they were working “over the top” or in close proximity to each other; in relation to a water issue on a lower basement level; in relation to a site barbeque; and in relation to hours of work. Mr Ross responded to those workers in attendance, and then left the meeting while Mr Griffin remained.
·At or around 7.40 am Mr Griffin left the Project Site and Project Subcontractor workers commenced work on the Project Site.
On 7 July 2014:
·At approximately 6.10 am Messrs Sutherland, Geelan and Henry arrived at the Project Site office.
·Mr Sutherland told Mr Ross that he intended to hold a meeting with Union members
·Mr Ross said that Mr Sutherland had not provided a notice of entry and therefore could not enter the Project Site.
·Mr Sutherland shrugged his shoulders and left the Project Site office. He remained on the Project Site.
·Mr Geelan and Mr Henry told Mr Ross words to the effect that Oneform employees would be involved in climbing the jump form, during that time the other workers would remain in the “smoko room”, and that after they had finished the Oneform employees would rejoin the other workers.
·Workers on the Project Site (except for Oneform) remained in the Sheds.
·At around 8.30 am the Oneform workers returned to the Sheds.
·A meeting with the workers was held by Messrs Sutherland, Geelan and Henry. Messrs Sutherland, Geelan and Henry returned to the Project Site office shortly afterwards and told Mr Ross and Mr Peter Luppi (the Watpac Project Director) that the workers did not have confidence in Mr Keiran Nailon (a Watpac deck foreman) and wanted him removed from the Project Site. Mr Ross protested this request and sought a resolution. Messrs Sutherland, Geelan and Henry returned to meet with the workers.
·At approximately 10.00 am Messrs Sutherland, Geelan and Henry returned to the Project Site Office and met again with Messrs Ross and Luppi. Mr Sutherland told Mr Ross that the workers had gone home for the day. Mr Sutherland said words to the effect “I tried to hold them but they wanted to go home… I did my best.”
·Shortly thereafter 110 workers engaged in the structural trades left the Project Site and did not return to their normal duties that day.
·The respondents admit that the workers on 7 July 2014 engaged in industrial action within the meaning in s 417(1) of the FW Act.
On 17 July 2014:
·At approximately 6.35 am Mr Bragdon telephoned Mr Ross and told Mr Ross that he was on the Project Site. Mr Bragdon asked where Mr Ross was.
·Shortly thereafter Mr Bragdon met Mr Ross at the Project Site office and said that workers had reported concerns about a safety screen being loose and Watpac’s plans to pour a slab, climb the jump form and climb the screens all at one time. Mr Ross had a brief discussion with Mr Bragdon about these issues including the sequencing of works that were to occur at the Project Site on that day.
·Mr Bragdon told Mr Ross that he intended to hold a meeting with the workers to find out more about the issues. Mr Ross said that he had not received a right of entry notice from Mr Bragdon.
·Mr Bragdon did not provide a right of entry notice, or notice of proposed entry pursuant to the WHS Act. He did not sign the visitor’s register prior to entering the Project Site.
·Mr Bragdon left the Project Site office and held a meeting with Project Subcontractor workers.
·At around 7.40 am Messrs Bragdon and Geelan and the site Safety Committee came to Mr Ross’ office, and invited Mr Ross to meet with the Safety Committee to discuss issues raised at the meeting. Messrs Ross, Luppi and Butler then met with Messrs Bragdon and Geelan and the site Safety Committee.
·At the meeting Mr Bragdon said, in summary, that the following issues had been raised by the workers, namely that they wanted better communication and co-ordination with Watpac (in particular in relation to their belief that Watpac was pouring a slab, climbing the jump form and climbing the screens simultaneously), and in respect of a perimeter screen extension which a worker had leaned on and which had flexed approximately 200 millimetres.
·During the meeting Mr Brian Lewis (a Watpac Safety Manager) and Messrs Phelan and Baptista (WHSQ Inspectors) arrived in the meeting room. Mr Bragdon asked Mr Baptista if he was an “investigator”, and Mr Baptista replied affirmatively.
·Mr Bragdon told Mr Ross that the workers would not return to work until after Mr Baptista left the Project Site.
·Messrs Phelan and Baptista left the Project Site, and at approximately 11.00 am the workers returned to work.
CLAIMS OF THE ABCC
In relation to these events the ABCC claims in its amended statement of claim in summary:
In relation to the events of 26 June 2014:
·The employees who stopped work engaged in industrial action within the meaning of s 417(1) of the FW Act. It can be inferred that Mr Ingham organised the industrial action within the meaning of s 417(1), or alternatively was knowingly concerned in, encouraged, aided, abetted, induced, counselled or procured that action within the meaning of s 550 of the FW Act.
·Mr Ingham contravened s 500 of the FW Act in that he was a permit holder for the purposes of s 512 of the FW Act, and (inter alia) entered the Project Site, was exercising or seeking to exercise rights in accordance with Pt 3-4 of the FW Act, intentionally hindered or obstructed Watpac and the Project Subcontractors from carrying out their usual work on the Project by conducting a meeting and then causing workers to leave the Project Site.
·Mr Ingham entered on to the Project Site without giving a notice required by s 119 of the WHS Act and the WHS Regulation, or alternatively failed to give notice in accordance with s 122 of the WHS Act and the WHS Regulation; failed to follow Watpac’s site safety protocols and remained on the Project Site notwithstanding Mr Ross’ statement that he should not be there.
·The Union was, by operation of s 793 of the FW Act and/or at common law, liable for Mr Ingham’s contraventions. It followed that the Union had contravened ss 417(1) and 500 of the FW Act.
In relation to the events of 27 June 2014:
·The employees who stopped work engaged in industrial action within the meaning of s 417(1) of the FW Act. It can be inferred that Mr Myles organised the industrial action within the meaning of s 417(1), or alternatively was knowingly concerned in, encouraged, aided, abetted, induced, counselled or procured that action within the meaning of s 550 of the FW Act.
·Mr Myles contravened s 500 of the FW Act in that he was a permit holder for the purposes of s 512 of the FW Act, and (inter alia) entered the Project Site, was exercising or seeking to exercise rights in accordance with Pt 3-4 of the FW Act, intentionally hindered or obstructed Watpac and the Project Subcontractors from carrying out their usual work on the Project by conducting a meeting and then causing workers to leave the Project Site.
·Mr Myles entered on to the Project Site without giving a notice required by s 119 of the WHS Act and the WHS Regulation, or alternatively failed to give notice in accordance with s 122 of the WHS Act and the WHS Regulation; failed to follow Watpac’s site safety protocols; remained on the Project Site notwithstanding Mr Ross’ statement that he should not be there; used offensive language to Mr Ross and the WHSQ inspectors; and directed the Safety Committee to stop work due to the presence on the site of the WHSQ inspectors.
·The Union was, by operation of s 793 of the FW Act and/or at common law, liable for Mr Myles’ contraventions. It followed that the Union had contravened ss 417(1) and 500 of the FW Act.
In relation to the events of 1 July 2014:
·Mr Griffin contravened s 500 of the FW Act in that he was a permit holder for the purposes of s 512 of the FW Act, entered the Project Site without giving a notice required by s 119 of the WHS Act and the WHS Regulation for a purpose of enquiring into a suspected contravention of the WHS Act relating to or affecting a relevant worker, or alternatively for a purpose of consulting on work, health and safety matters with, and providing advice on those matters to, one or more relevant workers; was exercising or seeking to exercise his rights in accordance with Pt 3-4 of the FW Act; intentionally hindered or obstructed Watpac and the Project Subcontractors from carrying out their usual work on 1 July 2014 in that he conducted meetings with the workers and the Safety Committee which caused the workers to not perform work on the Project Site, and caused approximately 110 workers to not undertake their duties.
·The Union was, by operation of s 793 of the FW Act and/or at common law, liable for Mr Griffin’s contraventions. It followed that the Union had contravened ss 417(1) and 500 of the FW Act.
In relation to the events of 4 July 2014:
·Mr Griffin contravened s 500 of the FW Act in that he was a permit holder for the purposes of s 512 of the FW Act and, notwithstanding his failure to give a notice in accordance with s 119 of the WHS Act and the WHS Regulation, entered the Project Site for a purpose of enquiring into a suspected contravention of the WHS Act that related to or affected a relevant worker; was exercising or seeking to exercise his rights in accordance with Pt 3-4 of the FW Act, and intentionally hindered or obstructed Watpac and the Project Subcontractors from carrying out their usual work on 4 July 2014 in that he conducted meetings with the workers and the Safety Committee which caused the workers to not perform work on the Project Site, and caused approximately 110 workers to not undertake their duties.
·The Union was, by operation of s 793 of the FW Act and/or at common law, liable for Mr Griffin’s contraventions. It followed that the Union had contravened ss 417(1) and 500 of the FW Act.
In relation to the events of 7 July 2014:
·The employees who stopped work engaged in industrial action within the meaning of s 417(1) of the FW Act. It can be inferred that Mr Sutherland organised the industrial action within the meaning of s 417(1), or alternatively was knowingly concerned in, encouraged, aided, abetted, induced, counselled or procured that action within the meaning of s 550 of the FW Act.
·Mr Sutherland contravened s 500 of the FW Act in that he was a permit holder for the purposes of s 512 of the FW Act, and (inter alia) entered the Project Site for a purpose of holding discussions with employees whose industrial interests the Union was entitled to represent working on the Project; was exercising rights in accordance with Pt 3-4 of the FW Act, intentionally hindered or obstructed Watpac and the Project Subcontractors from carrying out their usual work on the Project by conducting meetings and then causing workers to leave the Project Site.
·Mr Sutherland entered on to the Project Site without giving a notice required by s 487 of the FW Act; failed to follow Watpac’s site safety protocols; and entered and remained on the Project Site notwithstanding Mr Ross’ statement that he should not be enter.
·The Union was, by operation of s 793 of the FW Act and/or at common law, liable for Mr Sutherland’s contraventions. It followed that the Union had contravened ss 417(1) and 500 of the FW Act.
In relation to the events of 17 July 2014:
·The employees who stopped work engaged in industrial action within the meaning of s 417(1) of the FW Act. It can be inferred that Mr Bragdon organised the industrial action within the meaning of s 417(1), or alternatively was knowingly concerned in, encouraged, aided, abetted, induced, counselled or procured that action within the meaning of s 550 of the FW Act.
·Mr Bragdon contravened s 500 of the FW Act in that he was a permit holder for the purposes of s 512 of the FW Act and, notwithstanding his failure to give a notice in accordance with s 119 of the WHS Act and the WHS Regulation, entered the Project Site for a purpose of enquiring into a suspected contravention of the WHS Act that related to or affected a relevant worker; was exercising or seeking to exercise his rights in accordance with Pt 3-4 of the FW Act, and intentionally hindered or obstructed Watpac and the Project Subcontractors from carrying out their usual work on 17 July 2014 in that he conducted meetings with the workers and the Safety Committee which caused the workers to not perform work on the Project Site, and caused approximately 110 workers to not undertake their duties.
·The Union was, by operation of s 793 of the FW Act and/or at common law, liable for Mr Bragdon’s contraventions. It followed that the Union had contravened ss 417(1) and 500 of the FW Act.
DEFENCE
It appears to be common ground that, on the dates pleaded by the ABCC:
·workers engaged by Watpac and one or more subcontractors ceased or did not commence work during normal working hours (including participating in meetings);
·one or more of the individual respondents entered the Project Site and spoke to representatives of Watpac and workers engaged by the subcontractors; and
·none of the entries by the individual respondents complied with the right of entry requirements in the FW Act or the WHS Act.
However the respondents deny key aspects of the ABCC’s claims. In particular, in their Defence the respondents claim that:
·Watpac had adopted an open door policy with respect to entry by employees or officials of the Union, and did not require those persons to comply with entry requirements and/or provide an entry notice in accordance with the FW Act or the WHS Act (Defence para 21(a))
·Clause 33.4 of each relevant EBA provided an independent and lawful right for employees and officials of the Union to enter the Project Site which was not subject to Watpac’s direction and/or control (Defence para 21(b))
·While the Union received Mr Brockhurst’s correspondence, it did not advise officials or employees of the Union because Mr Ingham and Mr Ravbar thought it was erroneous because it was inconsistent with Watpac’s open door policy and cl 33.4 of the relevant EBAs (Defence para 22)
·Insofar as concerned Mr Ingham and Mr Myles and the events of 26 June 2014:
(a)Mr Ingham and Mr Myles entered the Project Site for the purpose of soliciting charitable donations from members who worked at the Project Site, for a member of the Union who had been seriously injured (Defence para 28).
(b)They were not entering the Project Site in accordance with the WHS Act and therefore were not required to provide any notices in accordance with that Act (Defence para 29).
(c)When Mr Ingham and Mr Myles entered the lunchroom for the purposes of soliciting charitable donations from the employees, employees commenced raising issues relating to safety at the Project Site and neither Mr Ingham nor Mr Myles sought or encouraged such issues to be raised (Defence para 35).
(d)Neither Mr Ingham nor Mr Myles organised industrial action by the workers (Defence paras 42 and 43).
(e)Mr Myles in Mr Ingham’s presence advised the workers that any stoppage of work would be unlawful (Defence para 43(a)).
(f)Mr Ingham’s mere attendance at the meeting was insufficient for him to be a person associated within the meaning of s 550 of the FW Act (Defence para 43(b)).
·Insofar as concerned Mr Myles and the events of 27 June 2014:
(a)Mr Myles was not required to give notice of entry because of the Watpac open door policy and cl 33.4 of the EBAs (Defence paras 49, 96(a) and (b)).
(b)The reason the employees of Talbrace and Tensioned Concrete did not return to work after the completion of the meeting was because there was no safe work for them to perform (Defence para 55). Mr Norris and Mr Barber told Mr Ross words to the effect that the access provided to the emergency stairs was suitable without first seeing that staircase (Defence para 69).
(c)Mr Myles enquired about whether Mr Phelan, Ms Tollnaere and Ms Dargan were investigators but did not use offensive language or say to the effect that the workers would be returning to the Sheds (Defence para 77).
(d)Mr Myles went to the lunch rooms to learn if the employees had any further issues and the employees remained in the lunchrooms because there was no safe work for them to perform (Defence para 79).
(e)In any event the conduct of the meeting was authorised by cl 33.9 of the Subcontractor EBAs (Defence para 96(d) and (e)) and alternatively was agreed to by the respective employers and Watpac (Defence para 96(e)(ii)).
·Insofar as concerned Mr Griffin and the events of 1 July 2014
(a)Mr Griffin denied making any reference to s 81(3) of the WHS Act in his conversation with Mr Ross (Defence para 102).
(b)Mr Griffin entered the Project Site in accordance with cl 33.4 of the relevant EBAs and conducted a meeting in accordance with cl 33.9 of the relevant EBAs (Defence para 103). He did not enter the Project Site for the purposes of the WHS Act and was not required to give any such notices (Defence para 104).
(c)The cessation of work was an incident of the employee’s entitlement to participate in a two-hour meeting pursuant to cl 33.9 of the relevant agreement, or was agreed to by the employers and Watpac (Defence paras 122, 139)
(d)Mr Griffin was not required to sign the visitor’s register because of the Watpac open door policy (Defence para 130).
·Insofar as concerned Mr Sutherland and the events of 7 July 2014
(a)Mr Sutherland entered the Project Site in accordance with cl 33.4 of the relevant EBAs and conducted a meeting in accordance with cl 33.9 of the relevant EBAs (Defence paras 147, 154, 158, 161). He did not enter the Project Site for the purposes of the WHS Act and was not required to give any such notices (Defence para 154).
(b)Mr Sutherland was not required to sign the visitor’s register because of the Watpac open door policy (Defence para 155).
·Insofar as concerned Mr Bragdon and the events of 17 July 2014:
(a)Mr Bragdon and Mr Ross had a discussion during which Mr Bragdon expressed concerns about the sequencing of works that were to occur on the project and about exclusion zones but otherwise deny the ABCC’s allegations concerning that conversation (Defence para 179).
(b)Mr Bragdon said to Mr Ross that he proposed to have a meeting with members to ascertain if the members had other issues they wanted raised with management but was not required to give a notice of entry because he was not seeking to enter the Project Site in accordance with Pt 3-4 of the WHS Act (Defence para 181, 204).
(c)Mr Bragdon entered the Project Site in accordance with cl 33.4 of the relevant EBAs and conducted a meeting in accordance with cl 33.9 of the relevant EBAs (Defence para 185, 203).
(d)The cessation of work by the employees was authorised and agreed to by the employers in accordance with cl 33.9 of the relevant EBAs (Defence paras 196, 200, 201) and agreed to by Watpac (Defence para 200).
In its Reply the ABCC pleaded, in summary:
·The relevant EBAs were not agreements for the purposes of the general law, nor for the benefit of the Union for the purposes of s 55 of the Property Law Act 1974 (Qld). Clause 33.4 of the relevant EBAs did not authorise entry by the individual respondents.
·Watpac did not have an open door policy with respect to entry by employees or officials of the Union, and required such persons to comply with entry requirements and provide an entry notice in accordance with the FW Act or the WHS Act.
·Even if Watpac did have an open door policy, it had advised the Union that entry by employees or officials of the Union at Watpac construction sites would require a valid notice of entry and compliance with Watpac’s entry requirements.
·The relevant meetings were not authorised by cl 33.9 of the relevant EBAs.
·Mr Ingham and Mr Myles did not enter the Project Site for the purpose of soliciting charitable donations from members – rather they entered to address alleged safety issues on the job and inquire into a suspected contravention of the WHS Act. Accordingly they were required to provide the requisite notices under the WHS Act.
·Mr Griffin and Mr Bragdon both entered the Project Site for the purpose of inquiring into a suspected contravention of the WHS Act or alternatively for a purpose of consulting on work, health and safety matters and was required to provide requisite notices under the WHS Act, and therefore were seeking to exercise their rights in accordance with Pt 3-4 of the FW Act.
PRINCIPAL ISSUES IN DISPUTE
The ABCC alleges that the conduct of the individual respondents contravened s 417 of the FW Act on 26 and 27 June 2014 and 7 and 17 July 2014, and contravened s 500 of the FW Act on 26 and 27 June 2014, and 1, 4, 7 and 17 July 2014.
In considering the ABCC’s allegations of contravention and the defence raised by the respondents, it is clear that questions arise as to whether Watpac and the Project Subcontractors had agreed to the conduct of the individual respondents. In respect of Watpac, questions arise about Watpac’s alleged “open door” policy in respect of the Union and its officials/employees, and therefore whether there was any requirement on the individual respondents to give notices to Watpac before entering the Project Site.
Further, it is necessary for the Court to consider whether what authority (if any) cl 33.4 of the EBAs gave to the respondents in respect of rights of entry. It is also necessary to consider whether cl 33.9 of the relevant EBAs authorised the meetings conducted on the dates in question.
In the Statement of Agreed Facts the parties submit that the following issues require resolution:
26 JUNE 2014
Organising industrial action
143. The questions to be resolved are:
(a)Did Mr Ingham organise the stoppage within the meaning of s.417(1); and
(b)In the event that Mr Ingham did not organise the stoppage, did he involve himself within the meaning of s 550?
Right of entry contraventions
144. The questions to be resolved are:
(a)was Mr Ingham exercising or seeking to exercise a right conferred by Part 3-4;
(b)when Mr Ingham was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
27 JUNE 2014
Organising industrial action
145. The questions to be resolved are:
(a)who bears the legal onus in respect of disproving or proving that circumstances identified in s. 19(2) applies.
(b)Was the stoppage industrial action within the meaning of s. 19 and in particular:
(i)was the stoppage authorised or agreed to by the employees by virtue of clause 3.4.1 of the Project Safety Management Plan?
(ii)was the action based on a reasonable concern of each of the employees about an imminent risk to his or her health or safety?
(c)If the stoppage was industrial action, did Mr Myles organise the stoppage within the meaning of s.417 (1); and
(d)In the event that Mr Myles did not organise the stoppage, did he involve himself within the meaning of s. 550?
Right of entry contraventions
146. The questions to be resolved are:
(a)was Mr Myles exercising or seeking to exercise a right conferred by Part 3-4?
(b)when Mr Myles was at the Project Site, was the hindrance or obstruction caused by Mr Myles intentional or did Mr Myles otherwise act improperly?
1 JULY 2014
Right of entry contraventions
147. The questions to be resolved are:
(a) was Griffin seeking to exercise a right conferred by Part 3-4; and
(b) if Griffin was seeking to exercise a state or territory right of entry in accordance with Part 3-4, did he intentionally hinder or obstruct Watpac or otherwise act improperly?
4 JULY 2014
Right of entry contraventions
148. The questions to be resolved are:
(a) was Griffin seeking to exercise a right conferred by Part 3-4; and
(b) if Griffin was seeking to exercise a state or territory right of entry in accordance with Part 3-4, did he intentionally hinder or obstruct Watpac or otherwise act improperly?
7 JULY 2014
Organising industrial action
149. The questions to be resolved are:
(a) Did Sutherland organise the stoppage within the meaning of s.417(1); and
(b)In the event that Sutherland did not organise the stoppage, did he involve himself within the meaning of s. 550
Right of entry contraventions
150. The questions to be resolved are:
(a) was Sutherland seeking to exercise a right conferred by Part 3-4?
(b) when Sutherland was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
17 JULY 2014
Organising industrial action
151. The questions to be resolved are:
(a) Was the stoppage authorised by the sub-contractor EBAs;
(b) Did Bragdon organise the stoppage within the meaning of s.417; and
(c) In the event that Bragdon did not organise the stoppage, did he involve himself within the meaning of s. 550?
Right of entry contraventions
152. The questions to be resolved are:
(a) was Bragdon seeking to exercise a right conferred by Part 3-4?
(b) when Bragdon was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
CLAIMS AGAINST THE SIXTH RESPONDENT
153.The principal issue that arises is whether the acts were within the scope of the relevant respondents’ actual or apparent authority.
154.Were the actions of the individual respondents that allegedly amounted to a contravention of s. 417, within their actual or apparent authority?
155.Were the actions of the individual respondents that allegedly amounted to a contravention of s. 500, within the actual or apparent authority of the individual respondents?
I will examine each of these issues in turn.
1. 26 JUNE 2014
Organising industrial action
(a) Did Mr Ingham organise the stoppage within the meaning of s 417(1)?
Section 417 of the FW Act provides:
417Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.
No industrial action
(1)A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:
(a)an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or
(b)a workplace determination comes into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter dealt with in the agreement or determination.
Note: This subsection is a civil remedy provision (see Part 4 1).
(2) The persons are:
(a)an employer, employee, or employee organisation, who is covered by the agreement or determination; or
(b)an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.
Injunctions and other orders
(3)If a person contravenes subsection (1), the Federal Court or Federal Circuit Court may do either or both of the following:
(a)grant an injunction under this subsection;
(b)make any other order under subsection 545(1);
that the court considers necessary to stop, or remedy the effects of, the contravention.
(4)The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
(5)Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
Note:Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions.
In interpreting “industrial action” for the purposes of s 417, regard must be had to s 19 of the FW Act which provides:
19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a)the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b)a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c)a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d)the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a)action by employees that is authorised or agreed to by the employer of the employees;
(b)…
(c)action by an employee if:
(i)the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) …
Note:In this section, employee and employer have their ordinary meanings (see section 11).
The respondents admit that, by stopping work and leaving the Project Site, workers on the Project Site engaged in “industrial action” within the meaning of ss 417(1) and 19(1) of the FW Act on 26 June 2014 (Defence para 41).
The current question for consideration however is whether Mr Ingham organised that industrial action. The issue of onus in analogous circumstances was recently summarised by Wigney J in BlueScope Steel Limited v Australian Workers' Union [2018] FCA 1574, where his Honour observed at [145]:
BlueScope bore the onus of proving that the AWU organised the 24-hour strike. While the civil standard applies, because BlueScope’s allegations were serious and exposed the AWU to penalties, satisfaction on the balance of probabilities is not achieved by “inexact proofs, indefinite testimony, or indirect inferences”: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; [2015] FCAFC 25 at [63]. In considering whether a party has proved its case on the balance of probabilities, the Court is required to take into account: the nature of the cause of action; the nature of the subject-matter of the proceeding; and the gravity of the matters alleged: Evidence Act 1995 (Cth), s 140(2).
In the present case the ABCC bears the onus of proving that Mr Ingham organised industrial action and, in the circumstances, contravened s 417(1). In considering whether it has successfully done so I respectfully have had regard to and adopt the comments of Wigney J set out above.
Mr Ingham’s evidence as set out in his affidavit affirmed 15 September 2016 was as follows:
7.In approximately December 2013, a member of the Union named Mitchell Bamping was seriously injured in a scooter accident in Bali. The effect of those injuries was that Mitchell was unable to work and was confined to a wheelchair and had limited range of movement in his limbs. Mr Bamping had a wife and two young children for whom he was unable to provide because of his injuries and was in hardship.
8.As a consequence, the Union decided to organise a charitable collection for Mr Bamping from other members of the Union in 2014. What this involved was an organiser or organisers of the Union meeting with members of the Union at various work sites throughout South-East Queensland and ask them to give up a day’s worth of their fares and travel allowances to donate to Mitchell and his family.
9.On the morning of 26 June I attended a Lend Lease Construction Project at Fortitude Valley in Brisbane and held a pre-start meeting with the workers at that site and raised money for Mitchell.
10.Later that day, at approximately 9.50am, I attended the Watpac Construction Project at 180 Ann Street, Brisbane to have a similar meeting with the workers at that project during their smoko break. To the best of my recollection, the smoko break at that site was 10.00am until 10.30am and my entry was designed to coincide with that period. I attended the site together with Mick Myles.
11.At no time prior to entry that day, did I (or Mick) provide Watpac or any of the sub-contractors to Watpac with notice of our intention to enter the site. It was not my intention to enter the site in the exercise of a right pursuant to industrial or safety legislation, but rather, I was entering the site to speak to members about a matter unrelated to their employment at the Project.
He also deposed:
16.Shortly after we entered the site, Mr Ross approached me and we had a discussion about the basis of our entry to the site that day. I cannot now recall word for word the exchange that we had. That discussion was had at the café near the site office.
17.I advised him that we were present at the site for the purpose of raising money for a member of the Union, Mitchell Bamping, who had been seriously injured in Bali, and that we were going to speak to the members during their smoko break in the crib shed for that purpose. Mr Ross went on to argue that I should not be present on the site because I had not given a right of entry notice. While I did not dispute that I had not issued an entry notice, I largely ignored that issue because I did not want to get into an argument with him about right of entry in circumstances where, as set out above, I was not exercising statutory right of entry.
In relation to the meeting he deposed:
20.The meeting commenced at approximately 10.05am once the workers all assembled for their smoko break in the crib sheds which were on the Level 3 basement. During the first 10 minutes of that meeting, I explained to the workers the plight of Mitchell and the fact that we were raising money for him and I asked for a day’s fares and travel towards his cause.
21.There was a unanimous vote of support for that proposition and we then circulated the relevant paperwork, namely a form which all workers sign to authorise the monies to be deducted from their wages and those monies are then remitted to the Union by cheque, which makes the process of obtaining those funds for the cause that you are raising them for much more clean and tidy. Over a period of weeks the Union ultimately raised around $44,279.51 for Mitchell and his family.
22.Annexed and marked JI1 is a ledger setting out all of the monies which we raised for Mitchell between 19 June 2014 and 30 October 2014.
23.Annexed and marked JI2 is a photograph of me presenting to Mitchell and his mother a cheque for the monies which we raised for him.
24.The discussion in relation to Mitchell concluded at or shortly after 10.14am that morning. As soon as that issue was dealt with, workers began to raise, from the floor of the meeting, issues in relation to safety at the job sit. The issues that were raised included:
(a)issues in relation to access to the upper decks at the site for example the fact that at one point they had to climb up a precarious ladder to get to the next work level;
(b)the lack of a second point of egress from the upper levels of the job in circumstances where the only two modes of egress at that point were the hoist and the crane, both of which had recently been rendered inoperative due to windy conditions; and
(c)various other safety issues which had arisen at the site from time to time which I cannot now recall.
25.The conclusion that was reached by the workers at the meeting that day was that they would withdraw their labour for the balance of the day because they did not feel that it was safe to keep working. Mick and I did not encourage the workers to take that course. That was the independent decision of the workers. The Union considers safety at work to be a matter of the utmost importance especially given the dangers that are present every day in the construction industry.
26.The workers then ceased work and left the site. I did not organise or encourage the stoppage of work in any way.
In relation to their visit to the Project Site on 26 June 2014, Mr Myles gave evidence consistent with that of Mr Ingham. In his affidavit affirmed 15 September 2016 Mr Myles deposed:
3.As at 26 June 2014, as a part of my role as an organiser, I was assisting the union in raising money for a member of the union named Mitch Bamping, who has been involved in an accident in Bali. My understanding was that Mr Bamping was unable to support himself as a consequence of the injuries he suffered in his accident and the Union was therefore attempting to raise money to support him in hardship as an act of charity for him and his family.
4.The fundraising for Mitch involved me and other organisers attending various construction projects throughout South East Queensland and speaking to members of the union about Mitch’s plight and inviting them to donate one day’s fares and travel towards his cause. The way that that was done was by having the members complete a form which authorised the amount of money to be deducted from their wages and remitted to the charitable collection fund via the Union.
5.Throughout the period either side of 26 June 2014 I would have had over a dozen worksite meetings for the purpose mentioned above, and as I understand it, the Union raised many thousands of dollars for Mitch. I regarded it as an important and worthy cause and in my experience the members of the union with whom we met to discuss Mitch’s plight, were very receptive to it.
…
8.On 26 June 2014 I attended the Project, together with the Assistant Secretary of the Union Mr Jade Ingham. The purpose of our visit to this site that day was to have a meeting of the kind mentioned above, for the purpose of raising money for Mitch. That was the third construction project that Jade and I had done meetings of that kind at that day.
9.I have a fairly good recollection of the events on 26 June 2014, because it was an unusual visit to the Project. It was unusual because it was a different purpose for attending the Project to the norm, and because I was with another official, which was different to the norm and because I was not the usual organiser for the Project.
…
11.Prior to entering the Project, Jade and I were having a sandwich and a coffee at a café on the street level adjacent to the Watpac site office. While we were doing that some representatives of Watpac, whom I believe to have been Brad Ross and Peter Luppi and someone else whose name I cannot recall, came up to us and spoke to Jade. They asked Jade words to the effect:
“Are you here to do that fundraiser?”
12.Jade said:
“Yes”
13.We then had a general discussion about the fundraiser and what was happening around the industry. That discussion was a fairly short one and it was cordial. …
Mr Myles gave the following evidence about Mr Ingham addressing the workers on 26 June 2014:
16.Jade addressed the meeting, and I did not do so. Jade explained to the meeting that we were there to raise money for Mitch and that cause was warmly received by the members in attendance. I estimated there were approximately at least 110 workers present at that meeting.
17.Whilst Jade was taking [sic], I circulated the form that needed to be completed by the workers and they all unanimously endorsed the notion of making the requested donation to Mitch and they all completed a form. The process took perhaps 10-15 minutes at the most.
18.After the fundraising process was complete, the workers, of their own motion, raised concerns in relation to safety. As I recall the concern was in words to the following effect:
“What the fuck? Why are there no fucking scaffold stairs any more? I cannot walk from the fucking stop down to the fucking bottom without any fucking stairs? What are these fucking wankers doing? It is not fucking safe to have no stairs.”
19. Another worker responded in words to the following effect:
“You guys should try having a walk around this joint. It is a fucking mess. What the fuck are they doing?”
20. Jade arrived and then responded in words to the effect of:
“Well boys, we just can’t magically fix it for you. You have to raise the issue if you want to get it fixed.”
21. A worker, whose name I cannot recall, then made a proposal in words to the effect of:
“Well fuck it, someone can stay and fix the stairs and we should go home because we don’t want to work here while they are nor scaffold stairs, because it is not safe”.
22.That motion was unanimously supported by the workers present and those present at the meeting withdrew their labour for the balance of the day.
23.Jade and I both told the workers that they would not be paid if they withheld their labour because it would be classified as unlawful industrial action. Despite that warning they were undeterred and they left the site. At no stage did we encourage or organise the workers to leave the site.
A witness statement filed by the ABCC on 24 August 2016 in respect of Mr Ross’ evidence on which the ABCC relied contained the following:
42.Mr Ross walked up to Myles and said words to the effect “What are you doing here?” Myles replied “We are here to raise money for a fellow member who was injured in Bali. We want the boys to donate a day’s travel.”
43.Myles then said words to the effect of “Jade’s up there. You can go and talk to him” and gestured towards him.
44.Mr Ross then approached Ingham who was standing approximately twenty metres away and approximately 10 metres outside the lunchroom entrance and had a conversation to the following effect with him:
Mr Ross said: What are you doing here. Michael tells me you are here to raise money?
Ingham said: Yes but you also have issues on the job.
Mr Ross said: I haven’t received a right of entry (ROE) notice and therefore you shouldn’t be on site.
Ingham said: Are you going to give me the standard spiel about ROE?
Mr Ross said: Yes
Ingham said: Well that’s fine I am going to have a meeting with the men and I will advise you of the result.
45.When Mr Ross asked Ingham what the issues were on the Project he said words to the effect that there were safety issues in relation to access, that the hoist was not operational and that Watpac were pouring both sets of access stairs to the top deck today. Mr Ross stated to Ingham that this was not correct, that the hoist was operational and that Watpac were only pouring one set of access stairs on that day.
In evidence in chief during the hearing Mr Ross affirmed that, in his original conversation with Mr Ingham, Mr Ingham had referred to the safety issues on the Project Site. In particular:
MR MURDOCH … And was that the first occasion that you spoke to Mr Ingham that day?---That was the first occasion that I had met Mr Ingham, yes.
First occasion you had met him at all?---Yes.
Okay. Now, what was the effect of that discussion with Mr Ingham?---Had a bit of a right-of-entry discussion; we had – we just – we also talked about the fundraising that Mr Myles had told me about, and – we had discussion about some suggested safety issue on the project.
Right. Now, you’ve said “some suggested safety issues”; who raised the – what you’ve referred to as the suggested safety issues?-- Mr Ingham.
And what do you recall – sorry. Do you – did he tell you what the nature of those suggested issues was?---I don’t believe at that time; he just told me he had some safety – well, I can’t recall.
Cool. Now, can you tell the court what your recollection is, if any, about any discussion with Mr Ingham about right of entry?---I would have raised the issue that a right-of-entry notice had not been provided.
Right?---And that was – that was the legislation at the time, that they were meant to, so - - -
And anything else about right of entry?---No, not that I can recall.
HER HONOUR: When you say you would have raised that with Mr Ingham, what do you mean?---So in that instance, I did raise – so “would of” – I shouldn’t use that. So I did have a right-of-entry discussion; the actual infinite details of that I couldn’t recall – can’t recall right now. But at that time, every union official that entered site, I would have a right-of-entry discussion, one day before them with.
That was your practice?---That was – yes, that was a requirement that we had.
Thank you.
MR MURDOCH: And you mentioned your notes before. Did you make notes of that discussion with Mr Ingham?---I made notes on that day, yes, I made notes, yes. Very handy about this.
Sorry?---They would be very handy at this point in time.
(transcript pp 32-33)
Mr Ross referred to a document he identified as his contemporaneous notes. These notes were tendered and marked as exhibit 8(A), and provided as follows:
The following events occurred on the 26/6/14 at the ''180 Brisbane" site at 192 Ann Street Brisbane city;
•At approximately 9.50am I was advised by site personnel that Union officials from the CFMEU were on site.
•I immediately left the site office for the site to locate the officials.
•Upon arrival on Basement 3 on the Ann street side of the project I can came across Michael Miles from the CFMEU. I requested Mr Miles to advise what he was doing on the site to which he provided the following; 'We are here to raise money for a fellow member who became was injured whilst on holidays in Bali, we want the boys to donate a day's travel.' Mr Miles then Suggested I continue my conversation with Jade Ingham, also of the CFMEU, who was located outside the lunch room about 20 meters away. I approached Mr Ingham and again asked why they were on site, Mr Ingham advised that there were several issue's on the project that need addressing and he intended on having a meeting with the workers to discuss. He advised there was access issues to both the hoist and stairs to the live deck, both of these were found to be incorrect.
•It was at this point I advised Mr Ingham that I had not received a right of entry notice from either himself or Mr Miles and they should not be on site.
•Mr Ingham then proceeded to suggest I was there to provide the 'standard line' for right of entry, to which I agreed that I was.
•Mr Ingham then advised they would be meeting with the men and would advise the result.
•At approximately 10.35 workers began leaving site.
•Mr Miles and Mr Ingham were waiting around at the base of the tower crane talking to the Watpac delegates David Geelan and Brian Baker.
•I approached and advised both organisers that work place health and safety had been contacted and was on their way. Mr Ingham then advised me that I should call them back and inform the department that they had left site and there was no reason to attend. He then added the Safety Committee wanted a meeting with Watpac management to discuss further issues raised during the meeting.
•At no time was any issue advised that would affect the site or any imminent risk advised to myself.
•It was at this time, around 10.45am, that the department arrived. Where I escorted the department to the site office and I did not see either Mr Miles or Mr Ingham again.
•After a brief meeting with the department I met with the Safety Committee in the Watpac meeting room, issues raised by the committee were as follows;
a)Lighting in toilet cubicles suggested to be inadequate.
b) Access lighting under the live deck required when early morning activities are taking place
c) The physical size of the toilets was suggested to be too small.
d) It was suggested insufficient power boards were available to the Western side of the lift core where some minor works were occurring.
e) It was advised there appeared to be a area of the deck where power leads did not reach, about a 5m zone near the pour joint.
f) The quantity of tables and chairs in the lunch room was questioned as being adequate.
g) It was suggested both sets of fire stairs were intended to be poured on the same day, restricting access from the live deck.
h) Some members of the Safety Committee expressed concerns that they were not being listened to.
i) It was advised trades were working “over the top of each other” on the live deck. The example was given of the steel fixers and post tensioning trades.
j) An issue was raised about a small slab pour that had been poured without sign off being received from the form worker. It was found to be poured with a set of braces missing from a frame.
k) Hours or work for some trades was raised as being over the 10 hrs maximum allowed within the EBA.
l) It was requested to ensure adequate lighting was provided for crane drivers to climb the crane towers in early morning starts.
In giving his evidence Mr Ross continued:
Now, one of the matters that I asked you about was whether Mr Ingham apprised you of the nature of the safety issues. Does reference to your notes assist your recall in respect of that issue?---I’ve written here:
Mr Ingham advised that there were several issues on the project that needed addressing - - -
Yes?---
- - - and he intended on having a meeting with the workers to discuss.
Yes?---
He advised, there was access issues to both the hoist and the stairs to the live deck; both of these were found to be incorrect.
And, having read that, does that assist you to recall the conversation?---Yes. Yes.
And was the conversation to that effect?---Yes, best of my knowledge.
Now, in respect of right of entry, what if anything – and if needs be, refresh your memory from your notes – what if anything did you say to Mr Ingham about what the requirements in respect of right of entry were?---I said that Watpac had not received a right-of-entry notice from either himself or Mr Myles, and they shouldn’t be onsite.
And Mr Ingham’s response to that was?---He basic – so I’ve written:
Mr Ingham then proceeded to suggest that I was there to provide the standard line for right of entry, to which I agreed that I was.
Now, did Mr Ingham then make any statement as to what he proposed to do thereafter?---He advised that he was – there would be a meeting with the men, and would advise the result.
Now, you mentioned that Mr Ingham raised two issues with you in respect of the site – safety issues. Did you provide him with any response, at that point, to those matters?---That was the first that I was made aware of them, so I didn’t provide a response, no.
(transcript pp 34-35)
During the hearing Mr Ingham reiterated his affidavit evidence and denied that he had told Mr Ross that he (Mr Ingham) was at the Project Site because of “issues on the job”. During cross-examination he explained further:
HER HONOUR: Can I just ask a question of Mr Ingham. Mr Ingham, you said you had been to Lend Lease earlier that morning. So why did you go to Watpac? Why – was there other places you were looking at going?---Yes.
Why Watpac?---Well, your Honour, we had a scheduled itinerary of meetings with a view to, you know, raising money from the membership to support this young member who at that time had been in the PA Hospital for nine months, and he couldn’t go home because they didn’t have wheelchair facilities at his – at his house. And so we tried to raise some money to do some work at – at the house where his mum was living, and also to get his wife and two young children over from Indonesia, Balinese wife and his – and his young – two young kids. And so he was doing it pretty tough and we had set up a series of meetings. I reckon it was over about a week or even a fortnight. So, you know, the Lend Lease one and the Watpac one were two of many, and I – yes. I don’t remember where we were the day before or the day after, but I know that we did a heap of meetings over the course of a week, or even two weeks. I did a lot of them personally. It was one that I got personally involved in. I don’t always get involved in all of them, but this one I did. I had been to see Mitchell in hospital, and – so, yes, that’s – hopefully that answers your question, your Honour.
Thank you.
MR MURDOCH: Now, I’ve suggested to you that in this discussion that you had with Ross before you had the meeting, you had raised that there are issues on the job, and that he asked you what the issues were. Now, what do you say about that?---About – so this is on the way into the smoko shed?
Yes, yes?---Well, no, we didn’t have a conversation about safety issues at that time. It was, again, about right of entry and about what I was doing to raise money for Mitchell Banthy.
Now, I suggest that there was such a discussion, and that in the course of that discussion you said that there was safety issues in relation to access, that the hoist was not operational and that Watpac was pouring both sets of access stairs to the top deck that day?---We didn’t have that conversation then.
Now, you did know, though, didn’t you, of there being safety concerns on this job, or what you understood to be safety concerns prior to you entering?---Yes.
Because if you go to your paragraph 19 of your affidavit you refer there to having received anecdotal reports, etcetera, from people that the safety conditions of the site were unsatisfactory, etcetera. Now, it would be a logical thing, I suggest, that if you had received such reports, that they would be of concern to you, given your position in the union?---Yes, I receive those reports daily from multiple sites.
Well - - -?---It’s – it’s an unsafe industry, so - - -
You – you may well, but regardless of the frequency of you receiving such reports, receiving such reports would be of concern to you?---They would, yes.
Yes. So you’re there with the person who you knew, I imagine, to be the project manager?---Brad Ross?
Yes?---I didn’t know what his role was. I knew he was either a seat – site manager or – he was a senior rep on site, yes.
And - - -?---I didn’t know what his title was, though.
- - - I suggest that if you’ve gone to this – if you’re onsite, and you’re there having a discussion with a senior person from Watpac, that it would be – the logical thing for you to do to raise with him the safety matters that you’d been told about prior to you coming on site?---Well, a couple of things: (1) it’s not my – not my direct responsibility within the union to resolve site-specific safety issues. There are organisers whose responsibility that is. And the other thing about it is we’ve spent a lot of time and effort in empowering Safety Committees and health and safety representatives. So ultimately, that’s where issues should be resolved. I didn’t feel that it was my place to have a direct discussion about that with – with Mr Ross or a site manager. I would – if it gets to a point where it escalated and things are extremely serious, well, I may raise that with Mr Brockhurst or someone at that level in the organisation. The other thing there is that’s not why I was there that day. I was there to raise money for Mitchell Banthy.
(transcript pp 187-188)
The concept of “organising” industrial action for the purposes of s 417 of the FW Act is not defined by the legislation. As White J recently observed in Australian Building and Construction Commissioner v Huddy [2017] FCA 739:
66.The term “organise” used in conjunction with “action” or “industrial action” in ss 343, 348 and 417 of the FW Act is not defined. It is a commonly used term in industrial parlance but lacks a precise definition.
67.The “organisation” of “action” (ss 343(1) and 348) or “industrial action” (s 417(1)) involves the intentional arranging, bringing about, putting in place, procuring or coordinating the action in question. Meanings of this kind seem consistent with the first meaning given by the Macquarie definition to the word “organise”, namely:
To form as or into to a whole consisting of interdependent or coordinated parts, especially for harmonious or united action: to organise a party.
68.However, saying this begs questions about the kind of conduct required. The circumstance that the proscription is on the organisation of a form of human activity and not inanimate objects suggests that organising has the connotation of positive conduct which is intended to, and does, induce or procure others to engage in conduct and/or which marshalls or coordinates the activities of those who are willing to do so. Understood in this way, conduct constituting organising in the relevant sense may take a variety of forms. As was said by Isaacs J, in a different statutory context, in Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170 at 203 the word “organise” is “of large connotation”.
White J also referred to earlier comments of Jessup J in Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223 as follows:
70.The notion that the procuring of industrial action may constitute the organisation of that action is supported by the reasoning of Jessup J in Williams v CFMEU [2009] FCA 223; (2009) 179 IR 441.
[79]In the light of the evidence to which I have referred, it would be naïve not to recognise that the burden of Mr Mates’ message to the workers in the meeting on 31 July 2006 was that they should perform no further work on the site that day. No doubt he had his own good reasons for conveying that message. I accept also that it was not a direction. It was, however, a recommendation with the authority of a union organiser. Neither would it have appeared to the workers to be any spur-of-the-moment thing: Mr Mates’ reference to something having been raised with the builder on the Friday, and not sorted out, would have given an element of considered seriousness to what he was recommending. I accept also that the workers generally agreed with Mr Mates’ assessment of the situation on site, but he himself added an opinion about Mr Leonard’s ability to control matters of safety on site which would not otherwise have been known to the workers. That Mr Mates would have felt able to make a comment about such a subject could only have added further authority to what he said.
[80]For the above reasons, I accept the applicant’s allegation that, on 31 July 2006, Mr Mates organised a stoppage of work on the site. I also accept the alternative, and effectively indistinguishable, formulation relied on by the applicant, namely, that Mr Mates “took ... steps to procure” such a stoppage.
This aspect of the reasons was not disturbed on appeal: CFMEU v Williams [2009] FCAFC 171; (2009) 262 ALR 417.
In summary: on the one hand Mr Ingham’s evidence (supported by Mr Myles) was that he entered the Project Site to raise money for an injured Union member, that the workers on the Project Site took advantage of his presence to raise workplace issues with him, and that he listened to them but did not organise industrial action by them. On the other hand, Mr Ross’ evidence was that Mr Ingham entered the Project Site with the specific intention of discussing workplace issues with the workers there.
While I accept that this was Watpac practice, it does not follow that Mr Griffin’s ultimate proposed solutions were in any way indicative of impropriety on his part.
However I am satisfied that Mr Griffin’s actions were improper within the meaning of the section in the sense that:
·Mr Griffin entered the Project Site on 1 July 2014 but failed to give required notice prior to doing so, and
·Mr Griffin did not provide an entry notice or sign the visitor’s register as required by Watpac’s Site Safety Protocols.
Conclusion
In relation to the issues the parties identify as requiring determination:
(a)Was Mr Griffin seeking to exercise a right conferred by Pt 3-4?
Yes.
(b)If Mr Griffin was seeking to exercise a State or Territory right of entry in accordance with Pt 3-4, did he intentionally hinder or obstruct Watpac or otherwise act improperly?
Mr Griffin acted improperly in exercising or seeking to exercise a right conferred by Pt 3-4.
4. 4 JULY 2014
Right of entry contraventions
(a) Was Mr Griffin seeking to exercise a right conferred by Pt 3-4?
Relevant facts in relation to Mr Griffin’s presence on the Project Site on 4 July 2014 are uncontroversial.
Mr Griffin gave evidence of his belief that the purpose of his attendance was to facilitate discussions between the company and the workers “as the workers believed their concerns were not being listened to” (Mr Griffin’s affidavit at [20]). Mr Ross composed a contemporaneous note which was tendered in which he wrote:
I was requested to attend the “meeting” by Mr Griffin to hear workers concerns and provide undertakings from Watpac regarding said concerns.
I am satisfied that, in attending the Project Site on 4 July 2014, Mr Griffin was there to follow up on his visit of 1 July 2014. On the evidence before the Court, there would appear to be no other reason for him to be at the Project Site on that day to “hear workers’ concerns”. This is supported by Mr Griffin’s subsequent evidence about alleged statements of workers concerning the non-rectification of safety issues (transcript pp 280-281). Accordingly I am satisfied that Mr Griffin entered the Project Site on 1 July 2014, for the purpose of exercising or seeking to exercise rights under Div 3 of Pt 3-4 within the meaning of s 500 of the FW Act, namely to consult on work health and safety matters to, one or more relevant workers who wish to participate in the discussions (as contemplated by s 121(1) of the WHS Act) or for the purpose of inquiring into a suspected contravention of the WHS Act (as contemplated by s 117 of the WHS Act). He did so without giving the notice required by the FW Act.
Again, I am satisfied that Mr Griffin was not absolved of the need to provide an entry notice or comply with Site Safety Protocols by virtue of cl 33.4 of the EBAs. Mr Griffin was exercising, or seeking to exercise, rights within the meaning of s 500 of the FW Act.
(b) If Mr Griffin was seeking to exercise a state or territory right of entry in accordance with Pt 3-4, did he intentionally hinder or obstruct Watpac or otherwise act improperly?
For similar reasons to those I found in relation to 1 July 2014, I am satisfied that Mr Griffin did not intentionally hinder or obstruct Watpac, but that he did act improperly. In particular:
·I consider the stoppage of 4 July 2014 was authorised by cl 33.9 of the EBAs (being a meeting of less than two hours in duration);
·There is no evidence about the presence or otherwise of Watpac employees at the meeting;
·However Mr Griffin entered the Project Site on 4 July 2014 but failed to give required notice prior to doing so; and
·Mr Griffin did not provide an entry notice or sign the visitor’s register as required by Watpac’s Site Safety Protocols.
Conclusion
In relation to the issues the parties identify as requiring determination:
(a)Was Mr Griffin seeking to exercise a right conferred by Pt 3-4?
Yes.
(b)If Mr Griffin was seeking to exercise a State or Territory right of entry in accordance with Pt 3-4, did he intentionally hinder or obstruct Watpac or otherwise act improperly?
Mr Griffin acted improperly in exercising or seeking to exercise a right conferred by Pt 3-4.
5. 7 JULY 2014
Organising industrial action
(a) Did Mr Sutherland organise the stoppage within the meaning of s 417(1)? or
(b) In the event that Mr Sutherland did not organise the stoppage, did he involve himself within the meaning of s 550?
The facts in respect of events on 7 July 2014 are, in key respects, agreed. In particular the parties agree that on 7 July 2014 the workers of the Project Subcontractors engaged in industrial action within the meaning in s 417(1) of the FW Act.
It is convenient to deal together with questions of Mr Sutherland’s role (if any) in those events.
In support of its claim that Mr Sutherland organised (or was involved in) the industrial action on 7 July 2014 the ABCC submits that the Court should infer that Mr Sutherland organised or was involved with the stoppage on 7 July 2014 because, in summary:
·The 8.30 am meeting must have been planned as 100 people do not coincidentally gather in a single room and wait for two hours
·The plan must have been put into execution at or about the time of Mr Sutherland’s arrival at 6.10 am, because according to evidence of Mr Ross (for example his witness statement at [186]-[187] and at transcript pp 91-92) at 6.10 am Messrs Geelan and Henry were able to accurately inform Mr Ross of events which would occur later that morning (namely that the Union members would wait in the Sheds until the Oneform members had completed their involvement in climbing the jump form, and that the Oneform members would then join the rest of the workers for the meeting).
·The issue of Mr Nailon was apparently only raised while Mr Sutherland was present, and once he left the Project Site it was not mentioned again. There is no evidence that Mr Sutherland informed Mr Ross what the supposed problem with Mr Nailon actually was.
The respondents submit however that:
·The only evidence in respect of the meeting of 7 July 2014 was that of Mr Sutherland.
·There is nothing inherently unlikely in his account that he received a telephone call requesting that he come to site and speak to the workers. The fact that when he arrived at the site the workers had assembled to talk to him was consistent with someone having requested his presence.
·Mr Sutherland gave evidence that he attempted to stop the workers going on strike, which evidence was inherently reasonable and did not constitute organising industrial action.
On balance I am not prepared to infer that Mr Sutherland organised the industrial action of the workers of 7 July 2014.
First, while Mr Sutherland’s attendance at the Project Site coincided with the day on which the workers stopped work, this coincidence is no more than suggestive of possible involvement in the subsequent events. Mr Sutherland’s evidence was that he received a telephone call from “one of the delegates” informing him that there was a “problem” and that he came to the Project Site as soon as he could after that call (transcript p 326 lln 39-47). In my view this evidence is plausible, particularly in view of events of the previous few weeks which were suggestive of some worker unrest on the Project Site.
Second, the role of Union delegates Messrs Geelan and Henry in organising the industrial action is unclear. It is plausible that they liaised directly with the workers on the Project Site, and that they organised the stop work. This would be consistent with their anticipation of prospective events on 7 July 2014 and their separate discussions with Mr Ross on that day in respect of relevant issues (see evidence of Mr Ross at pp 91-93). It is also consistent with the evidence of Mr Sutherland that he was, in essence, “called in” to a volatile situation on the Project Site, and the fact that Mr Geelan was a person named as involved in other stoppages on the Project Site (see, for example, para 131 of the Statement of Agreed Facts and the transcript p 100).
Third, the lack of detail concerning Mr Nailon in Mr Sutherland’s discussions with Mr Ross is explainable by the fact that Mr Sutherland actually was only informed of worker concerns on Mr Sutherland’s arrival at the Project Site, and that Mr Sutherland knew little about it. In his evidence Mr Sutherland was somewhat vague about those concerns (see transcript p 333 lln 17-21) – again consistent with Mr Sutherland’s lack of detailed knowledge and the fact that he personally had no particular concerns about Mr Nailon.
The question remains however whether, if Mr Sutherland did not organise the industrial action, nonetheless whether Mr Sutherland was “involved” in the industrial action. Mr Sutherland’s evidence was:
Like I said, I wasn’t in control of those group of workers. They were in control of themselves or out of control (transcript p 334 lln 19-20).
Further, he gave evidence that rather than endorsing the prospect of industrial action, he encouraged the workers to return to work:
But that wasn’t a step that you took on this day, was it?---I did recommend they go back to work, recommend they stay at work before they went. I did.
I’m sorry?---I did recommend that they stay at work - - -
Right?--- - - - before they went. I asked them to stay.
Okay. Before they - - -?---Before they left, yes.
You’re talking about when they ultimately left, but you didn’t make a recommendation that they go back to work while they were sitting in the sheds.
That’s the case?---No, I didn’t, because I was going to speak to Brad Ross and I was hoping to get – to get a good outcome for them and come back and deliver it to them and they would go back to work.
You went and spoke to Mr Ross and you told him that the boys were not happy out there?---Yes.
(transcript p 334 lln 25-40)
As I explained earlier, “involvement” requires that the person be an intentional participant in the contravention based on actual knowledge of the essential facts constituting the relevant contravention: Yorke v Lucas (1985) 158 CLR 661 at 666-667. The facts of this case insofar as concerns Mr Sutherland are analogous to those in Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87 where the Full Court found that the consultation by Union organisers with the employer and communication of the reason for the stoppage could not reasonably be held to make either the Union or the organisers a party to, or concerned in, the withdrawal of labour so as to conclude that they engaged in the particularised industrial action. In the case before me there is no evidence that Mr Sutherland should be “linked in purpose” with the workers – rather the contrary would appear to be the case because it appeared he sought to end their stoppage as soon as possible and dissuade them from taking further action.
This aspect of the ABCC’s case against Mr Sutherland is not substantiated.
Right of entry contraventions
(a) Was Mr Sutherland seeking to exercise a right conferred by Pt 3-4?
(b) When Mr Sutherland was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
Mr Sutherland admitted that the purpose of his entry on to the Project Site was to hold a meeting with members of the Union (see [24] of his affidavit affirmed 15 September 2016). At [24] this statement was qualified by reference to cl 33.9 of the EBAs in the circumstances this clause was not relevant (I note in particular that the parties agree the conduct of the workers constituted industrial action and the duration of the stoppage exceeded two hours).
In so entering the Project Site, Mr Sutherland was clearly intending to hold discussions with workers as contemplated by s 484 of the FW Act, and was exercising or seeking to exercise rights conferred by Pt 3-4 within the meaning of s 500.
I am not satisfied that Mr Sutherland intentionally hindered or obstructed Watpac. In particular I am not satisfied that Mr Sutherland organised the stoppage, and such evidence as there is indicates that he was endeavouring to resolve the situation and encourage the workers to return to work rather than hinder or obstruct Watpac. However I am satisfied that Mr Sutherland acted improperly in that he:
·entered the Project Site on 7 July 2014 but failed to give required notice prior to doing so, and
·did not provide an entry notice or sign the visitor’s register as required by Watpac’s Site Safety Protocols.
Conclusion
In relation to the issues the parties identify as requiring determination:
Organising industrial action
(a)Did Mr Sutherland organise the stoppage within the meaning of s 417(1)?
No.
(b)In the event that Mr Sutherland did not organise the stoppage, did he involve himself within the meaning of s 550?
No.
Right of entry contraventions
(a)Was Mr Sutherland seeking to exercise a right conferred by Pt 3-4?
Yes.
(b)When Mr Sutherland was at the Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
Mr Sutherland acted improperly in exercising or seeking to exercise a right conferred by Pt 3-4.
6. 17 JULY 2014
Organising industrial action
(a) Was the stoppage authorised by the sub-contractor EBAs?
It is common ground that employees of Project Subcontractors, including employees of Talbrace, did not undertake any work for the period from approximately 7.40 am to 11.00 am on 17 July 2014 notwithstanding that there was work available to be performed.
While a meeting of employees of Project Subcontractors of two hours on the Project Site may be authorised by cl 33.9 of the EBA, it is not in dispute that the workers stopped work for more than two hours on 17 July 2014. The respondents submit that the meeting conducted upon Mr Bragdon’s entry was authorised by cl 33.9 but the period after the WHSQ investigator and inspectors arrived was not. However I am not persuaded that it is appropriate to treat the stop work period in this fashion. Clause 33.9 is clear in its terms: employees are entitled to have paid time off to attend union meetings of up to two hours (or more by agreement – which was not the case here) or participate in union activities. The evidence before the Court is that the stop work on 17 July 2014 allegedly related to issues including communication and co-ordination by Watpac, concerns about simultaneous events on the Project Site, a safety concern about a perimeter screen extension, and then the presence of an investigator on the Project Site. The stoppage of the workers remaining in the Sheds during toing and froing of Mr Bragdon, Mr Geelan and others in their interactions with Mr Ross and Watpac representatives that morning should properly be viewed as one period of stop work. Certainly it is not apparent that workers returned to work at any time during that period.
It is clear that this stop work was “industrial action” within the meaning of s 19(1) of the FW Act, and did not fall within s 19(2)(a) as it was not authorised.
(b) Did Mr Bragdon organise the stoppage within the meaning of s 417? or
(c) In the event that Mr Bragdon did not organise the stoppage, did he involve himself within the meaning of s 550?
The facts in respect of events on 17 July 2014 are, in key respects, agreed, and I find that the stoppage of relevant employees constituted industrial action. It is convenient to deal together with questions of Mr Bragdon’s role (if any) in those events.
Mr Bragdon gave the following evidence that he attended the Project Site because he had received a telephone call to do so:
MR MURDOCH: How do you say it was that you came to attend this site on 17 July 2014?---So I had a – I would have had a phone – I had a phone call from a – a concerned worker onsite, that there was issues going on - - -
Right?--- - - - and pretty much would’ve been in the city at the time, and – and far as I know, that they were sort of in the sheds or not going back to work for various reasons due to safety, and they wanted me to go there. So I sort of – I ended up going there first thing in the morning.
Right. So you were invited by someone from the site to go to the site, were you?---Yes. Correct.
And was that someone – I think you may have said before was a member of the union?---That’s correct, yes.
So someone had called you on the telephone, had they, prior to your entry?---Correct.
Yes. And so your plan was to go there to hear from people eligible to be members of the CFMEU about safety issues, was it?---Correct.
Yes. Can you tell the court – do you have a recollection of who it was who telephoned you?---No.
(transcript p 292 lln 17-39)
It may be the case that Mr Bragdon came to the Project Site unexpectedly because of a telephone call from a worker. However there is evidence that Mr Bragdon played an important role in the meeting at the Project Site and the subsequent stoppage. Mr Ross gave evidence that:
·Mr Bragdon told him that “he would be holding a meeting with the men to find out more about these issues” (transcript p 98 lln 15-16)
·Mr Ross had already told Mr Bragdon that Watpac would not be climbing the jump form, the screens and pouring a slab all at the same time, so any understanding of the workers in that respect were inaccurate (p 98 ll 21-25).
The holding of a meeting to “find out more about these issue” appeared unnecessary, and, as it transpired, no further information about these issues appeared to emerge. An inference can properly be drawn that the meeting and subsequent stoppage were an excuse to enable Mr Bragdon to discuss general workplace issues in working hours with employees on the Project Site. This is consistent with Mr Bragdon’s evidence about the “culture” between Watpac and form workers:
So if Mr Ross tells you that the plan was to conduct the works one at a time, you would accept that?---Yes and no.
Well, why no? Were you saying Mr Ross is wrong?---Well, the history of the job site.
So are you saying that Mr Ross was telling lies, are you?---Well, no. I’m not saying he’s telling lies.
Yes?---I’m just saying the history of the job up to that point was every builder and every subcontractor will all say that they’re never wrong and they’re never building wrong. A lot of the job sites that – well, that job in particular – there was a culture created in early days between Watpac and the form worker which exacerbated as the job went up between payments, between safety, between program, between consultation and communication, which I actually was in the middle of. Quite often, Brad would ring me and go, “Mate, you need to try and control Oneform.” Oneform would constantly ring me and say, “Mate, you need to get down there and control Watpac.” So, therefore, I would ring Ross at all times; respect the site rules at all times; respected Ross and Peter Luppi; and I had had common catch-ups to say, “Mate, look, where are the jobs at? What are you guys doing? How do we need to manage our Oneform? What are you guys managing Oneform? What is it?” And then, obviously, the onflow from Oneform down through the works – they would get upset, so therefore they wouldn’t build it correctly and play – you know, well, what I looked at as games, which in – probably, inside, had the potential and did have the potential to hurt people. I mean, with their screens being loose one day, a metre by two bit of form pipe fell out and also hit a motorcyclist.
Well, that was not an event that was relevant to your discussion on this day, was it?---No. Correct.
No?---But it’s a build-up. So when Ross says to me, “Yes, mate. I’ve got all these in place.” I’m going to say, “Well, okay. You say you’ve got it in place but you had 35 a bit of four-by-two hit a worker two days ago. You had a bit of ply almost hit a motorbike last week.”
No. Stop. There’s no suggestion that that happened two days ago from 17 July?---No. Correct.
No?---But this is the build-up to it.
(transcript p 299)
Further, the stoppage involving alleged worker objections to the presence of the investigator coincided with Mr Bragdon’s presence on the Project Site. Mr Bragdon himself clearly objected to the presence of the “investigator” (transcript p 316) and communicated those objections to Mr Ross. Mr Bragdon gave evidence as follows:
MR MURDOCH: Well, if that was the case, why didn’t you say when you were in the meeting, “Look, we’re happy to continue this meeting, but we will only do it with the inspector, not with the investigator.”?---I would’ve at the time.
You just upped and left, didn’t you?---Well, I would’ve said we’re not going to deal with the investigator.
And you upped and left and you took the Safety Committee with you, didn’t you?---That’s correct.
So you broke off from the very meeting that you wanted to have?---Yes.
You weren’t genuinely trying to resolve safety issues that day, were you?---I was. If you were, you would’ve sought to stay there and discuss them with the Workplace Health and Safety inspector?---Not with the investigator there.
(transcript p 316 lln 18-33)
Given Mr Bragdon’s presence on the Project Site, his insistence on meeting further with the workers notwithstanding Mr Ross’ assurances, the subsequent stoppage, and Mr Bragdon’s views concerning investigators resulting in the ongoing stoppage until the investigator left the Project Site, I am satisfied that the industrial action which took place involving the stoppages were organised by Mr Bragdon, or at the very least he was involved with that industrial action.
Right of entry contraventions
(a) Was Mr Bragdon seeking to exercise a right conferred by Part 3-4? and
(b) When Mr Bragdon was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
In the circumstances it is plain that Mr Bragdon sought to exercise a right conferred by Pt 3-4 within the meaning of s 500 of the FW Act in entering the Project Site on 17 July 2014. His evidence was that he attended the Project Site to:
… hear from members about various issues they had at the site. I intended to look into the issues that had been raised with me but also to discuss any other issues that workers wished to raise with me on site.”
(Affidavit of Chad Bragdon affirmed 15 September 2016 at para 9).
Mr Bragdon was a permit holder, and was required to give notice before exercising a right of entry in accordance with Pt 3-4 of the FW Act. The discussions he proposed to have on 17 July 2014 clearly were discussions within the meaning of s 484. Whether he believed that he was entitled to enter the Project Site pursuant to cl 33.4 is not relevant – he was not entitled to enter the Project Site except in accordance with Pt 3.4.
I am also of the view that Mr Bragdon intentionally hindered or obstructing Watpac in persisting to convene a meeting of workers in circumstances where the issue allegedly causing concern was a canard, and in organising or being involved in the stoppage of workers when an investigator came to the Project Site for no apparent reason other than Mr Bragdon’s belief that investigators did not have the interests of workers at heart. Mr Bragdon would have been well aware that the result of the worker stoppages would be disruptive to Watpac at the Project Site. I am satisfied he formed the requisite intent within the meaning of s 500 of the FW Act.
Finally, I consider that Mr Bragdon acted improperly in that he:
·entered the Project Site on 17 July 2014 but failed to give required notice prior to doing so; and
·did not provide an entry notice or sign the visitor’s register as required by Watpac’s Site Safety Protocols.
Conclusion
In relation to the issues the parties identify as requiring determination:
Organising industrial action
(a)Was the stoppage authorised by the sub-contractor EBAs?
No.
(b)Did Mr Bragdon organise the stoppage within the meaning of s 417?
Yes.
(c)In the event that Mr Bragdon did not organise the stoppage, did he involve himself within the meaning of s 550?
Yes.
Right of entry contraventions
(a)Was Mr Bragdon seeking to exercise a right conferred by Pt 3-4?
Yes.
(b)When Mr Bragdon was at the Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
Mr Bragdon intentionally hindered or obstructed Watpac, and otherwise acted improperly in exercising or seeking to exercise a right conferred by Pt 3-4.
7. CLAIMS AGAINST THE SIXTH RESPONDENT
The claims of the ABCC in respect of Mr Ingham are not substantiated, however to varying degrees I have made findings in favour of the ABCC concerning contraventions by Messrs Myles, Griffin, Sutherland and Bragdon of the FW Act. The question remains as to whether the Union is liable for those contraventions.
The ABCC claims that the Union is liable for those contraventions pursuant to ss 550 and 793 of the FW Act.
Section 550 provides that involvement in a contravention is treated in the same way as the actual contravention. Section 793 provides as follows:
Liability of bodies corporate
Conduct of a body corporate
(1)Any conduct engaged in on behalf of a body corporate:
(a)by an officer, employee or agent (an official ) of the body within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2)If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a)that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b)that the person had that state of mind.
Meaning of state of mind
(3)The state of mind of a person includes:
(a)the knowledge, intention, opinion, belief or purpose of the person; and
(b)the person's reasons for the intention, opinion, belief or purpose.
(4) …
(5) In this section, employee has its ordinary meaning.
I noted earlier that Messrs Myles, Griffin and Bragdon held a position of organiser with the Union, and Mr Sutherland was a Crane Co-Ordinator. I am satisfied that each of the individual respondents had actual authority to appear on the Project Site as Union officials. It is not in dispute that each of these individual respondents held entry permits under the FW Act and the WHS Act. Further it is not in dispute that each of these respondents entered the Project Site, with Union materials, represented Union members to management during working hours, and were present for that purpose. There is no suggestion that any of the individual respondents were not authorised by the Union to attend the Project Site on its behalf and represent its members, notwithstanding that the required notice of entry had not been given.
The respondents submit that, because it is no part of the actual authority of any of the individual respondents to engage in the organisation of industrial action pursuant to r 22(9) of the registered rules of the Union, the claims in respect of the sixth respondent cannot be substantiated. However as the Full Court pointed out in Australian Workers’ Union v Leighton Contractors Pty Limited [2013] FCAFC 4; (2013) 209 FCR 191 at [91], it is no answer to the proposition that the individual respondents had apparent authority to show that they had no actual authority. Relevantly, in order to establish apparent authority on the part of a putative agent it is necessary to show that:
·a representation that the agent had authority to enter on behalf of the company into a contract of the kind sought to be enforced was made to the contractor;
·such representation was made by a person or persons who had “actual” authority to manage the business of the company either generally or in respect of those matters to which the company relates; and
·he (the contractor) was induced by such representation to enter into the contract, that is, that he in fact relied upon it.
(See Diplock LJ in Freeman & Lockyer (A Firm) v Buckhurst Park Properties (Magnal) Ltd [1964] 2 QB 480 at 502–9; Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72 at 79; Australian Workers' Union v Leighton Contractors Pty Limited [2013] FCAFC 4; (2013) 209 FCR 191 at [92].)
In this case, each of the individual respondents were clothed with apparent authority to act on the Union’s behalf, including dealing with Watpac management, convening and addressing meetings of Union members, and participating in Union activities on the Project Site, even where such conduct amounted to a contravention of s 417 of the FW Act.
I am satisfied that the actions of the individual respondents that amounted to contraventions of ss 417 and 500 were within the apparent authority of the individual respondents, and that the Union is liable for those contraventions pursuant to either s 793 or s 550 of the FW Act. This finding is consistent with observations of this Court in McDermott (No 2) at [46]-[67] and Huddy (No 2) at [38].
Conclusion
(a)Were the actions of the individual respondents that allegedly amounted to a contravention of s 417, within their actual or apparent authority?
Yes.
(b)Were the actions of the individual respondents that allegedly amounted to a contravention of s 500, within the actual or apparent authority of the individual respondents?
Yes.
APPROPRIATE ORDERS
I have made detailed findings referable to the issues the parties have identified as requiring determination in the Statement of Agreed Facts. Issues of relief clearly require separate determination, and separate case management orders for the filing of further submissions.
I will direct that the parties have 14 days in which to file draft orders giving effect to these reasons, and that the matter subsequently returns for further case management.
I certify that the preceding two hundred and fifty-eight (258) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 9 July 2019
SCHEDULE OF PARTIES
QUD 388 of 2016 Respondents
Fourth Respondent:
CHAD BRAGDON
Fifth Respondent:
KEVIN GRIFFIN
Sixth Respondent:
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
- AGLC
- Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) [2019] FCA 1052
- Case
- [2019] FCA 1052
- Decision Date
CaseChat Overview and Summary
The Court examined the conduct of each union representative individually, considering whether their actions amounted to organising industrial action and whether they hindered or obstructed the employer. The Court found that while some representatives were seeking to exercise rights under the Fair Work Act, their actions were not authorised by the enterprise agreements or the law. Notably, the Court held that Mr Griffin acted improperly by failing to give the required notice before entering the site and not complying with the site safety protocols. The Court also concluded that Mr Sutherland did not organise the industrial action but acted improperly by entering the site without notice. The union was found not liable for the actions of its representatives as they were not acting with actual or apparent authority.
The Court ordered the parties to file draft orders reflecting the judgment and listed the matter for case management. The final orders were to give effect to the reasons for judgment and address the contraventions of the Fair Work Act by the union representatives.
Orders
Orders of the court
1. By 4.00 pm on 24 July 2019 the parties file draft orders, if possible by consent, giving effect to the reasons for judgment in Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) [2019] FCA 1052 delivered 9 July 2019.
2. The matter be listed for case management on 31 July 2019 at 9.30 am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
BACKGROUND
[4]
CLAIMS OF THE ABCC
[25]
DEFENCE
[32]
PRINCIPAL ISSUES IN DISPUTE
[35]
1. 26 JUNE 2014
[40]
Organising industrial action
[40]
(a) Did Mr Ingham organise the stoppage within the meaning of s 417(1)?
[40]
(b) In the event that Mr Ingham did not organise the stoppage, did he involve himself within the meaning of s 550?
[70]
Right of entry contraventions
[90]
(a) Was Mr Ingham exercising or seeking to exercise a right conferred by Pt 3-4?
[90]
(b) When Mr Ingham was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
[108]
Conclusion
[109]
2. 27 JUNE 2014
[110]
Organising industrial action
[110]
(a) Who bears the legal onus in respect of disproving or proving that circumstances identified in s 19(2) applies?
[110]
(b) Was the stoppage industrial action within the meaning of s 19?
[127]
(c) If the stoppage was industrial action, did Mr Myles organise the stoppage within the meaning of s 417(1)?
[159]
(d) In the event that Mr Myles did not organise the stoppage, did he involve himself within the meaning of s 550?
[160]
Right of entry contraventions
[161]
(a) Was Mr Myles exercising or seeking to exercise a right conferred by Pt 3-4?
[161]
(b) When Mr Myles was at the Project Site, was the hindrance or obstruction caused by Mr Myles intentional or did Mr Myles otherwise act improperly?
[179]
Conclusion
[190]
3. 1 JULY 2014
[191]
Right of entry contraventions
[191]
(a) Was Mr Griffin seeking to exercise a right conferred by Pt 3-4?
[191]
(b) If Mr Griffin was seeking to exercise a state or territory right of entry in accordance with Pt 3-4, did he intentionally hinder or obstruct Watpac or otherwise act improperly?
[199]
Conclusion
[213]
4. 4 JULY 2014
[214]
Right of entry contraventions
[214]
(a) Was Mr Griffin seeking to exercise a right conferred by Pt 3-4?
[214]
(b) If Mr Griffin was seeking to exercise a state or territory right of entry in accordance with Pt 3-4, did he intentionally hinder or obstruct Watpac or otherwise act improperly?
[218]
Conclusion
[219]
5. 7 JULY 2014
[220]
Organising industrial action
[220]
(a) Did Mr Sutherland organise the stoppage within the meaning of s 417(1)? or
[220]
(b) In the event that Mr Sutherland did not organise the stoppage, did he involve himself within the meaning of s 550?
[220]
Right of entry contraventions
[232]
(a) Was Mr Sutherland seeking to exercise a right conferred by Pt 3-4?
[232]
(b) When Mr Sutherland was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
[232]
Conclusion
[235]
6. 17 JULY 2014
[236]
Organising industrial action
[236]
(a) Was the stoppage authorised by the sub-contractor EBAs?
[236]
(b) Did Mr Bragdon organise the stoppage within the meaning of s 417? or
[239]
(c) In the event that Mr Bragdon did not organise the stoppage, did he involve himself within the meaning of s 550?
[239]
Right of entry contraventions
[245]
(a) Was Mr Bragdon seeking to exercise a right conferred by Part 3-4? and
[245]
(b) When Mr Bragdon was at the Project Site did he intentionally hinder or obstruct Watpac or otherwise act improperly?
[245]
Conclusion
[249]
7. CLAIMS AGAINST THE SIXTH RESPONDENT
[250]
Conclusion
[257]
APPROPRIATE ORDERS
[257]
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.