Commissioner of the Australian Building and Construction Commission v Hall
[2018] FCCA 3532
•7 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
COMMISSIONER OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION v HALL & ORS
(“The 3 Site Canberra Case”)[2018] FCCA 3532
Catchwords:
INDUSTRIAL LAW – Multiple contraventions pleaded regarding the conduct of CFMEU officials on different building sites over a period of seven months – issues considered include production of entry permits and the use by Union officials of “shrunken entry permits” – consideration of what constitutes “improper conduct” – consideration of principles attributing liability of the CFMEU for the conduct of its officials on a building site – liability relevantly established in relation to all contraventions pleaded except for one occasion on one site – liability established against the CFMEU for the conduct of its officials and employees.
Legislation:
Fair Work Act 2009 (Cth), ss.12, 494, 497, 499, 500, 503, 550, 793
Work, Health and Safety Act 2011 (ACT), s.119.
Cases cited:
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2007) 165 IR 94
Australian Securities and Investments Commission v ActivSuper Pty Ltd (2015) 235 FCR 181
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) (2018) 278 IR 68
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42
Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Cases) [2018] FCAFC 88; (2018) 357 ALR 510
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bendigo Theatre Case) [2018] FCA 122; (2018) 357 ALR 199
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No.2) [2018] FCA 1563
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802; (2017) 252 FCR 198
Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd (2014) 228 FCR 225
Australian Workers’ Union v Leighton Contractors Pty Ltd (2013) 209 FCR 191
Banditt v The Queen (2005) 224 CLR 262
Bragdon v Director, Fair Work Building Industry Inspectorate (2016) 242 FCR 46
Commissioner, Australian Building and Construction Commission v Hall (No.2) [2017] FCCA 18
Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1; (2016) 338 ALR 360
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 Australian Building and Construction Commission (The Broadway on Ann Case) [2018] FCAFC 126
Darlaston v Parker (2010) 189 FCR 1
Director of Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; (2016) 241 FCR 338
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union & Ors (No.2) [2016] FCCA 3322
Director, Fair Work Building Industry Inspectorate v Hall [2015] FCCA 2874
Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303
Gore v Australian Securities and Investments Commission [2017] FCAFC 13
Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15
Pacific Carriers Ltd v PNB Paribas (2004) 218 CLR 451
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Ramsay v Sunbuild Pty Ltd (2014) 221 FCR 315
Sekta v Gregor (No.2) (2011) 195 FCR 203
Tabcorp Holdings Limited v Victoria (2016) 90 ALJR 376; (2016) 328 ALR 375
Yorke v Lucas (1985) 158 CLR 661
Zaburoni v The Queen (2016) 256 CLR 482
Applicant: COMMMISSIONER OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION
First Respondent: DEAN HALL
Second Respondent: HALAFIHI KIVALU
Third Respondent: JOHNNY LOMAX
Fourth Respondent: JASON O’MARA
Fifth Respondent: ZACHARY SMITH
Sixth Respondent: KENNETH MILLER
Seventh Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
File Number: CAG 78 of 2014
Judgment of: Judge Neville
Hearing date: 30, 31 January 2017, 1, 2, 3, 4, 7, 8, 9 & 10 February 2017
Date of Last Submission: 21 March 2018
Delivered at: Canberra
Delivered on: 7 December 2018 REPRESENTATION
Counsel for the Applicant: Ms P McDonald SC
Ms P Bindon
Solicitors for the Applicant: Clayton Utz, Canberra
Counsel for the Respondents: Mr P Morrissey SC
Ms K Argiropolous
Solicitors for the First, and Third – Seventh Respondents: Slater & Gordon, Melbourne & Sydney Lawyer for the Second Respondent: Self-Represented but no appearance THE COURT DIRECTS THAT:
(1)Within 21 days, the parties are to provide to the Court an agreed Minute of the Declarations and Orders to be made that reflects the findings set out in these reasons.
(2)In the same Minute, there is to be an agreed timetable for the procedural course regarding the determination of penalties.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRACAG 78 of 2014
COMMMISSIONER OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION Applicant
And
DEAN HALL First Respondent
And
HALAFIHI KIVALU Second Respondent
And
JOHNNY LOMAX Third Respondent
And
JASON O’MARA Fourth Respondent
And
ZACHARY SMITH Fifth Respondent
And
KENNETH MILLER Sixth Respondent
And
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Seventh Respondent
TABLE OF CONTENTS
INTRODUCTION.................................................................................................... [12]
Aritsans v Union Officials............................................................................ [13]
Documentary & Other Evidence.................................................................. [18]
Matters of Construction................................................................................ [20]
Statement of Agreed Facts............................................................................ [22]
Overview of Contraventions......................................................................... [27]
THE NEXUS SITE: 21ST AUGUST 2013.............................................................. [32]
Factual Summary............................................................................................ [32]
Summary of Contraventions......................................................................... [33]
Applicant’s Evidence .................................................................................... [34]Evidence of Mr Azzopardi................................................................... [34]
Evidence of Mr Northey...................................................................... [37]
Respondent’s Evidence................................................................................. [39]
Affidavit Evidence of Mr Hall............................................................. [39]
Oral Evidence of Mr Hall.................................................................... [42]
Affidavit Evidence of Mr O’Mara....................................................... [43]
Oral Evidence of Mr O’Mara.............................................................. [44]
Evidence of Mr Vitler.......................................................................... [46]
Applicant’s Submissions............................................................................... [47]
Respondent’s Submissions........................................................................... [55]
Applicant’s Submissions in Reply................................................................ [60]
Consideration and Disposition..................................................................... [64]
THE NEXUS SITE: 21ST OCTOBER 2013........................................................... [68]
Factual Summary............................................................................................ [68]
Summary of Contraventions......................................................................... [69]
Applicant’s Evidence .................................................................................... [70]Affidavit Evidence of Mr Fox............................................................. [71]
Oral Evidence of Mr Fox..................................................................... [72]
Affidavit Evidence of Mr Azzopardi................................................... [73]
Oral Evidence of Mr Azzopardi........................................................... [75]
Affidavit Evidence of Mr Mende........................................................ [76]
Oral Evidence of Mr Mende................................................................ [79]
Affidavit Evidence of Mr Pothan........................................................ [81]
Oral Evidence of Mr Pothan................................................................ [83]
Affidavit Evidence of Mr Drury.......................................................... [85]
Oral Evidence of Mr Drury................................................................. [86]
Affidavit Evidence of Mr Leeming..................................................... [86]
Oral Evidence of Mr Leeming............................................................ [87]
Evidence of Mr Mioc........................................................................... [88]
Respondent’s Evidence................................................................................. [89]
Affidavit Evidence of Mr Hall............................................................. [89]
Oral Evidence of Mr Hall.................................................................... [92]
Affidavit Evidence of Mr Hamilton.................................................... [97]
Oral Evidence of Mr Hamilton........................................................... [98]
Evidence of Mr Lomax........................................................................ [99]
Applicant’s Submissions............................................................................. [100]
Respondent’s Submissions......................................................................... [110]
Applicant’s Submissions in Reply.............................................................. [117]
Consideration and Disposition................................................................... [121]
THE NEXUS SITE: 30TH OCTOBER 2013........................................................ [128]
Factual Summary......................................................................................... [128]
Summary of Contraventions....................................................................... [128]
Applicant’s Evidence .................................................................................. [129]Affidavit Evidence of Mr Northey.................................................... [129]
Oral Evidence of Mr Northey........................................................... [132]
Affidavit Evidence of Mr Fox........................................................... [134]
Oral Evidence of Mr Fox................................................................... [135]
Evidence of Mr Rogic....................................................................... [136]
Evidence of Mr Sibley....................................................................... [138]
Respondent’s Evidence............................................................................... [139]
Affidavit Evidence of Mr Hall.......................................................... [139]
Oral Evidence of Mr Hall.................................................................. [141]
Affidavit Evidence of Mr Smith........................................................ [148]
Oral Evidence of Mr Smith............................................................... [150]
Applicant’s Submissions............................................................................. [154]
Respondent’s Submissions......................................................................... [166]
Applicant’s Submissions in Reply.............................................................. [172]
Consideration and Disposition................................................................... [178]
THE HARRISON SITE: 30TH OCTOBER 2013................................................. [185]
Factual Summary......................................................................................... [185]
Summary of Contraventions....................................................................... [186]
Applicant’s Evidence .................................................................................. [186]Affidavit Evidence of Mr Fox........................................................... [186]
Oral Evidence of Mr Fox................................................................... [187]
Affidavit Evidence of Mr Rogic....................................................... [188]
Oral Evidence of Mr Rogic............................................................... [189]
Evidence of Mr Sibley....................................................................... [190]
Evidence of Mr Thomson.................................................................. [191]
Respondent’s Evidence............................................................................... [192]
Affidavit Evidence of Mr Hall.......................................................... [192]
Oral Evidence of Mr Hall.................................................................. [193]
Affidavit Evidence of Mr Smith........................................................ [194]
Oral Evidence of Mr Smith............................................................... [194]
Applicant’s Submissions............................................................................. [195]
Respondent’s Submissions......................................................................... [201]
Applicant’s Submissions in Reply.............................................................. [203]
Consideration and Disposition................................................................... [204]
THE STROMLO SITE: 20TH JANUARY 2014................................................... [205]
Factual Summary......................................................................................... [205]
Summary of Contraventions....................................................................... [206]
Applicant’s Evidence .................................................................................. [207]Affidavit Evidence of Mr Crncevic.................................................. [207]
Oral Evidence of Mr Crncevic.......................................................... [212]
Affidavit Evidence of Mr McInnes................................................... [214]
Oral Evidence of Mr McInnes.......................................................... [217]
Respondent’s Evidence............................................................................... [222]
Affidavit Evidence of Mr Hall.......................................................... [222]
Oral Evidence of Mr Hall.................................................................. [224]
Affidavit Evidence of Mr Smith........................................................ [229]
Oral Evidence of Mr Smith............................................................... [230]
Affidavit Evidence of Mr Wade........................................................ [231]
Oral Evidence of Mr Wade................................................................ [232]
Applicant’s Submissions............................................................................. [233]
Respondent’s Submissions......................................................................... [241]
Applicant’s Submissions in Reply.............................................................. [246]
Consideration and Disposition................................................................... [251]
THE HARRISON SITE: 28TH JANUARY 2014................................................. [254]
Factual Summary......................................................................................... [254]
Summary of Contraventions....................................................................... [254]
Applicant’s Evidence .................................................................................. [255]Affidavit Evidence of Mr Azzopardi................................................. [255]
Oral Evidence of Mr Azzopardi........................................................ [257]
Evidence of Mr Hajdar...................................................................... [257]
Respondent’s Evidence............................................................................... [258]
Affidavit Evidence of Mr Hamilton.................................................. [258]
Oral Evidence of Mr Hamilton......................................................... [259]
Applicant’s Submissions............................................................................. [261]
Respondent’s Submissions......................................................................... [265]
Applicant’s Submissions in Reply.............................................................. [266]
Consideration and Disposition................................................................... [267]
THE HARRISON SITE: 11TH MARCH 2014.................................................... [268]
Factual Summary......................................................................................... [268]
Summary of Contraventions....................................................................... [268]
Applicant’s Evidence .................................................................................. [271]Affidavit Evidence of Mr Fox........................................................... [271]
Oral Evidence of Mr Fox................................................................... [273]
Affidavit Evidence of Mr Hajdar...................................................... [273]
Oral Evidence of Mr Hajdar.............................................................. [275]
Affidavit Evidence of Mr Azzopardi................................................. [276]
Oral Evidence of Mr Azzopardi........................................................ [278]
Respondent’s Evidence............................................................................... [279]
Affidavit Evidence of Mr O’Mara..................................................... [279]
Oral Evidence of Mr O’Mara............................................................ [281]
Affidavit Evidence of Mr Vitler........................................................ [286]
Oral Evidence of Mr Vitler............................................................... [287]
Affidavit Evidence of Mr Hamilton.................................................. [288]
Oral Evidence of Mr Hamilton......................................................... [289]
Applicant’s Submissions............................................................................. [290]
Respondent’s Submissions......................................................................... [297]
Applicant’s Submissions in Reply.............................................................. [300]
Consideration and Disposition................................................................... [302]
SEVENTH RESPONDENT UNION’S LIABILITY FOR CONTRAVENTIONS BY FIRST TO SIXTH RESPONDENTS.............................................................................................. [305]
Applicant’s Submissions........................................................................ [305]
Respondent Submissions....................................................................... [315]
Applicant’s Submissions in Reply......................................................... [317]
Consideration and Disposition.............................................................. [318]
Directions................................................................................................ [334]
ANNEXURES
Annexure A – List of Exhibits............................................................... [335]
REASONS FOR JUDGMENT
Introduction
1.These long-running proceedings concern a significant range of contraventions: 16 against the Union official Respondents, and further, consequential contraventions against the Construction, Forestry, Mining, and Energy Union (“the CFMEU” or “the Union”), following certain admissions by two of the Respondents (Messrs. Kivalu and Miller) and subject to the Court’s findings in relation to the contraventions pleaded against the other individual Respondents.[1] The litigation was initiated and conducted by the Commissioner of the Australian Building and Construction Commission (“the ABCC” or “the Commissioner”).
[1] The Union is now known as the Construction, Forestry, Maritime, Mining, and Energy Union (“CFMMEU”). However, for the purposes of these reasons, the references will remain to the CFMEU as the relevant entity at the time of the incidents involved.
2.The matters in issue involve alleged breaches of ss.494, 497, 499, 500, 501, 503, and 793 of the Fair Work Act 2009 (Cth) (“the FW Act”).
3.The contraventions are alleged to have occurred across three different building sites in Canberra, known as, and described in short-hand terms in these reasons as, the Nexus, Stromlo and Harrison sites, on specified dates between 21st August 2013 and 11th March 2014. Details of all such matters are detailed later in these reasons. It is perhaps helpful to record here that the Nexus and Harrison sites are located in the north of Canberra, while the Stromlo site is on the south side of the national capital.
4.On 12th May 2016, the matter was “specially fixed” for hearing for two weeks to deal with the issue of liability. All parties and the Court were engaged in very close “trial management” to ensure that the matter ran as efficiently as possible, not least because there were 20 witnesses who ultimately gave evidence. I need not detail here the various interlocutory hearings that occurred and the consequences of them in relation to “prosecutorial discovery” (in 2015), and the Applicant’s very late Application to transfer the matter to the Federal Court of Australia.[2]
[2] See Director, Fair Work Building Industry Inspectorate v Hall & Anor [2015] FCCA 2874 and Commissioner, Australian Building and Construction Commission v Hall & Ors [2017] FCCA 18.
5.Unless otherwise specified the following preliminary comments about the matter should not be taken as anything more than observations about some matters of evidence and the conduct of the proceedings generally.
6.For completeness, I should also note that at the time the Application and Statement of Claim was filed by the ABCC (as that body now is) in December 2014, the Second Respondent, Mr Kivalu, was a member of the Seventh Respondent, the CFMEU, and was legally represented by the lawyers who act for all other Respondents. Following certain findings made in the course of the Royal Commission into Trade Union Governance and Corruption, Mr Kivalu was prosecuted and convicted of certain offences. He is now no longer a member of the CFMEU, nor was he legally represented by the lawyers who act for the other Respondents to the current proceeding.[3]
[3] For ease of reference, and because (as noted) Mr Kivalu took no active part in the proceedings, hereafter any reference to “the Respondents” should be taken to refer to all of the Respondents who took part in the litigation except Mr Kivalu (the First and Third to Seventh Respondents).
7.Mr Kivalu has now formally admitted certain contraventions. However, he took no part in the hearing.
8.The Sixth Respondent, Mr Miller, also admitted the contraventions pleaded against him. He too took no part in the hearing. Mr Miller’s admissions form part of the Statement of Agreed Facts between the parties.
9.In relation to the contraventions admitted by Mr Kivalu and by Mr Miller, the Union has also admitted relevant breaches.
10.On 11th November 2016, the parties filed a Statement of Agreed Facts, which dealt with various matters, such as the legal identity of each of the parties, a brief overview of the building sites in question and the basal factual background to the contraventions. That document is reproduced below at [33].
Artisans v Union Officials
11.First, there was, in my view, a quite telling piece of evidence from one of the Applicant’s first witnesses, Mr Pothan, a concreting contractor who has been in the construction industry for 20 years or thereabouts. He has formal qualifications, such as relevant licences and a supervisor’s certificate, and a “High Risk licence to operate a boom pump…” He gave evidence on the second day of the hearing.
12.On one occasion (detailed later) he had the foresight to record on his mobile phone some of the discussions that took place with some of the Union officials on a certain day (also detailed later in these reasons). In relation to certain parts of the recorded conversations, towards the end of his oral evidence, there was the following exchange with Senior Counsel for the Respondents (emphases added):[4]
[4] Because a “running” transcript was produced for each consecutive day of the hearing, unless otherwise required Transcript references will simply by reference to the page number, here T 158 – 159.
Now you understand that, as a matter – Hall has got no power whatsoever to tell you [to] stop working, has he? We were under the impression he had all the power in the world to do that.
What, as a ? That we had – he had a – he said it like, “If you move, I will prosecute you.” We were all under the assumption that he had the power to prosecute us if we disobeyed him.
Well, he – having the power to launch a prosecution, you understand is different from having the power to impose the judgment? Okay. We are – you know, we’re concreters. We’re not lawyers. We don’t – we – and we hadn’t ever been in the situation before. So we were quite
You had to do – sorry ..... yes-? Sorry.
I don’t mean to cut you off. You go on with what you were saying? I was just saying we were quite intimidated at the time. We thought – and we were – because we didn’t want to do anything wrong. We don’t want to break the law.
May I just put something to you. I don’t think – you’re not being challenged about that. There’s no – no one is disputing that you had that concern, and no one’s disputing that you were saying, “We don’t want to do something that breaks the law”? But we did not know that we could say no and carry on.
You had Steve Fox standing there. He’s the health and safety chap? Yes.
And he had already told you he’s not stopping – they’re not stopping you? Yes. But, again
You weren’t sure? We weren’t sure.
No. I – that’s fine? And, you know, you’re being told one thing, you’re told another, and when you don’t know what’s right or wrong, we were too scared to make a move in case we did do the wrong thing.
13.Mr Pothan’s comments make plain that he is a specialist concreter, nothing more, nothing less. He was not a “lawyer” who had the wherewithal to challenge even the most general and sweeping statements made by a Union official, who generally has (and would usually be expected to have) a range of more specific knowledge and experience about regulatory compliance with safety standards and the like. Nor did Mr Pothan have relevant qualifications and experience in relation to the rights of Union officials on building sites.
14.Secondly, another witness, Mr Fox (who was a health and safety officer for one of the relevant construction companies, “Village”) said that he recognised (in my words) that there were no problems in dealing with some Union officials, while other officials were not so easy to deal with. He also said that one such official, Mr Hall, the First Respondent, was quite good to deal with “one on one”. The implication was, however, that in a larger group the personal “dynamic” was not quite, or always, so relaxed and comfortable.
15.All of this is to say, in a prefatory way, that many, if not most, construction workers (certainly most of those who gave evidence in the current proceeding) were not relevantly qualified or sufficiently experienced to deal with, let alone to challenge, various and sometimes sweeping statements by Union officials on matters of compliance with safety and other requirements, for example, the rights of permit holders. This may be a regulatory failure to consider later. However, in this instance, a number of “artisans” of long experience who were trying to earn a living were being challenged about their work and safety practices. They were ill-equipped to deal with, let alone to challenge, the often changeable, broadly-stated, claims made by Union officials on a building site. They were “artisans”, not lawyers.
16.And it should be said, in no critical way, that most of the Union officials also were not lawyers, although one in the current matter is a lawyer and another is a law student. However, they regularly spoke to these artisans with an authority and confidence, but usually without much precision - and conversely in wide sweeping statements regarding work and safety practices – which, in my view, to a non-lawyer would be, I suggest, either quite confusing and or intimidating. This was certainly the evidence of some of the Applicant’s witnesses.
17.This said, I accept that the general intention of the Union officials involved in the current matter was to protect the safety of workers on building sites. But just as the artisans were not well informed about regulations and the like, regarding for example certain “slings” used on a concrete pour, it often seemed that the level of information either known, understood and or communicated by the Union officials was, at least, “uneven” or widely variable. Confidence (or “swagger”) and or experience is important, but actual detailed knowledge of regulations, building codes (rather than general statements) is equally critical and appeared to be lacking, or at least not communicated, at times in the matters before the Court.
18.This “dynamic” between sweeping statements delivered with some force, on the one hand, and lack of understanding on the other, were common features of the evidence before the Court in relation to the manner in which the employees and officials of the Union often dealt with those encountered on the various building sites here, and which are the subject of the raft of contraventions pleaded by the parties. A particular example from the evidence of Mr Hall and Mr O’Mara, both of whom were senior officials of the CFMEU (ACT Branch) at the time, is illustrative of this dynamic.
19.In the course of his evidence, Mr Hall said that he and Mr O’Mara would often or generally “have a chat” about the relevant sections of the Act in question.[5] It was not immediately clear whether he was referring to the Fair Work Act2009 (Cth) or the Work, Health and Safety Act 2011 (ACT). It is not a criticism to state the fact that neither Union official is legally trained.
[5] See T 528.
20.Mr O’Mara gave evidence regarding his state of knowledge, which was the basis for his actions on a particular building site. He confirmed that he had 20 or more years of experience on building sites. Then there was the following exchange, which related to his concerns or objections to the “two person rule”, which limited the number of “visitors” who could be on one site, or at least who could be accompanied on site to two at a time (emphasis added):[6]
[6] T 612 – 613.
MS McDONALD: And is it – in your evidence that’s when Mr Azzopardi referred you to the amended site rule that talked about two – limited two ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ persons on site, is that the case?‑‑‑Sorry, I knew about – I went down there because I knew about the rule because they had been saying that to Mr Hamilton and the others. And that’s why they were only letting two on. I didn’t believe that was what the law catered for, so I went down in my position to try and straighten them out and make sure that, you know, that we were allowed to do what the law said we could do.
HIS HONOUR: Sorry, just to stop there – so when you say that the two person rule ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ didn’t accord with your understanding of the law?‑‑‑Yes.
Correct?‑‑‑Yes, with the Work Health and Safety Act.
Yes. How did you know that that was the law? Like, you know, did you check up on it or was it something that you knew from years of experience or did you check with someone else or what did you do?‑‑‑Yes. Look, this was a tactic that some of the builders that some of the builders had started to use over the last previous couple of weeks to stop more than two officials going on site. They got a – a safety consultant called David ..... to write them a risk assessment to say, under the guise of not being able to escort them safely, you can only have two officials on the job. So it was an issue that popped up and I wanted to go and address it and try and rectify it.
But in terms of your – what you say was your knowledge that this was not authorised procedure ‑ ‑ ‑?‑‑‑Yes.
I’m asking what was the basis of your knowledge, how did you acquire that knowledge? Was that just based upon your years of experience where (a) this had never been raised before or what was it?‑‑‑It had never been raised before, but the sections of the Act didn’t provide for any limit of numbers of authorised permit holders. So ‑ ‑ ‑
And how did you know that?‑‑‑I’ve read the Act. I think it’s ‑ ‑ ‑
What, every other day? Or, you know, you’ve had classes on it? Or what?‑‑‑Well, sorry, I’ve been for the last 20 years in some shape or form been doing things with regard to being a safety practitioner. So ‑ ‑ ‑
Well, that’s what I’m asking, that’s all?‑‑‑Yes. So I’ve got a reasonable working knowledge of the Act and I believe it’s section 7, you know, the entry notice, parts of 117, 119, it provides for what we can do and what we’ve got to do to get on. But certainly under the safety stuff, it certainly doesn’t provide for a limitation on a number of permit holders that can go on.
21.The sections to which Mr O’Mara generally referred were, implicitly, from the Work, Health and Safety Act 2011 (ACT). Section 7 simply provides the definition of “worker”. Sections 117 and 119 refer to the right of entry to inquire into suspected contraventions, and to the giving of “notice of entry.”
22.The main reason for mentioning this part of Mr O’Mara’s evidence is that, like many of the Respondents, it was very general such that it often obscured more than it revealed. The generality of the evidence and the sweeping statements made – in and out of the witness box – seemed to reflect the general approach of the Union officials when on site. I simply suggest that such general statements need to be checked before going on site, and preferably not with a fellow, legally untrained, Union official. Whatever his level of general experience on building sites, in my view, in the hustle and bustle of a building site, general statements that include passing references to specific sections of legislation tend to confuse rather than to illuminate or to clarify.
Documentary & Other Evidence
23.Many, if not most, of the incidents that were the subject of these proceedings were examined in miniscule detail. In many respects, this was both understandable and unobjectionable. However, in no critical way, again, I simply observe that quite a number of them would have actually taken only a matter of minutes on the site in question. However, when examined under the microscope of litigation, such relatively modest incidents can often assume an importance that they would not otherwise and not warrant such precise, fine tooth-comb analysis, or the criticism (on one or all sides) that is implicit in a number of the allegations.
24.That said, I understand the singular importance to ensure that building and construction workers are protected on building sites to the highest, reasonable degree possible. Equally so, artisans (and those who engage them) who know and practise their crafts well, ought not to be subject to undue interference (perhaps sometimes bordering on a less-than-subtle form of harassment) in making their living.
25.Further, the nature of the contraventions alleged and pleaded under the FW Act provides, unless specifically required, no scope or warrant for the Court (or anyone else) to attribute motive or intent to the actions of anyone involved in the litigation. The Court is simply required to assess the evidence in the light of the statutory requirements of the Act.
26.Finally, notwithstanding the large volume of documents filed with or provided to the Court (at last count, 20 Volumes which total just under 3300 pages), there was one particular evidentiary curiosity.
27.Regularly the artisan witnesses (if they may be so styled) referred to check lists (Mr Mende), diaries (Mr Azzopardi and Mr Northey), or “running diaries” (Mr Leeming), which were contemporaneous records of the events in question. Some of the Applicant’s other witnesses (e.g. Pothan, Northey) made digital recordings of certain conversations, incomplete though they were. A number of the Applicant’s witnesses prepared and signed statutory declarations quite proximate to the time of the incidents that have given rise to the current litigation. Such declarations were regularly annexed to their affidavits, which at least brought a degree of contemporaneity to the records. However, surprisingly (in my view), while copies of some extracts from diaries were annexed to affidavits, none of the original diaries were tendered into evidence.
28.And, by and large, apart from taking photographs, and making “rep reports” (explained later in these reasons) the Union officials seemed not to have taken any contemporaneous notes. Indeed, Mr Hall said that (a) he was not good with paper, (b) it was not easy to climb around or on building sites carrying a note book, and (c) he now used an iPad which he kept in the car. Only Mr Lomax referred to a diary he had, but which had been lost at, a building site. Given his utterly poor memory (on his own account) this was, to say the least, unfortunate. In some instances, there are CFMEU Reports attached to affidavits which were prepared relatively proximate to certain events in question. However, the lack of contemporary record-keeping by Union officials was curious if not surprising. Indeed, “unfortunate” would also be an apt description. On Mr Hall’s evidence, this lack of record-keeping seems to be changing, but this does not assist in relation to the multiple contraventions that are the subject of the current proceeding.
Matters of Construction
29.The Applicant regularly and consistently submitted the following as the appropriate construction (and application) of relevant sections in Part 3-4 of the FW Act that are the subject of this litigation. Because it was so regularly relied upon, and equally consistently resisted by the Respondents in their submissions, it is opportune to deal with the proper approach to the construction and application of relevant sections of the FW Act at the outset.
30.At pars.7 - 9 of the Applicant’s submissions, it is stated (emphasis added):
7) Section 480 of the FW Act indicates that the object of the Part 3-4 regime is to establish a ‘balance’ between, on the one hand, the rights of organisations to investigate suspected contraventions of State or Territory OHS laws (among other things) and, on the other hand, the right of occupiers and employers to go about their business without undue inconvenience.
8) As noted by the Full Federal Court in Maritime Union of Australia v Fair Work Commission Part 3-4 ‘fundamentally modifies common law rights’ in that it confers on permit holders extensive powers which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The legislature has concluded that it is necessary to confer such powers, but at the same time it has sought to strike a balance with those existing common law rights so that the powers are not ‘untrammelled’.
9) It has been said, therefore, that the provisions ‘should be construed so that encroachment is no greater than the statute allows, either expressly or by necessary implication’. The general approach to construction of the provisions in Part 3-4—or at least those provisions which impose restraints on right of entry powers—ought to favour the occupier or employer whose common law rights are being circumscribed by the right of entry regime.
31.I do not need to set out here the Respondents’ opposing submissions in this regard. They are outlined later in these reasons. For current purposes it is sufficient to note the following as the relevant interpretive principle to be applied.
32.In Maritime Union of Australia v Fair Work Commission, the Full Court of the Federal Court of Australia (North, Flick and Bromberg JJ) said, at [13] – [15] (emphasis in original; some internal citations omitted):
[13] Although the questions for resolution may be stated simply, it is important to recognise at the outset that Part 3-4 of the Fair Work Act fundamentally modifies common law rights.
[14] A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62 thus observed:
The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.
…
[15] Section 480, extracted at [8] above, sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56]; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful …
In the light of this Full Court authority, in my view, it will always be a question of “balance” between the competing rights, rather than a preferential treatment of one group of rights over another. Accordingly, I do not accept the Applicant’s submission that there should be a more favourable or preferential treatment of the rights of occupiers or employers over the rights of permit holders.
Statement of Agreed Facts
33.As noted earlier, the following statement was filed on 11th November 2016. The Statement (“SOAF”) set out the following foundational facts agreed between the parties:
Pursuant to s. 191 of the Evidence Act 1995 (Cth) the Applicant and the First, Third, Fourth, Fifth, Sixth and Seventh Respondents agree that the following facts are not disputed for the purpose of the proceeding:
The Parties
1) The Applicant (the Director) is entitled to apply in relation to the contraventions of the Fair Work Act 2009 (Cth) (FW Act) pursuant to ss. 10(d), 59A and 59C of the Fair Work (Building Industry) Act 2012 (Cth) (FWBI Act) and s. 539 of the FW Act.
2) At all material times each of the First, Third, Fourth and Fifth Respondents was:
(a)an employee, officer and/or agent of the Seventh Respondent for the purposes of s. 793 of the FW Act;
(b)an official of the Seventh Respondent for the purposes of s. 12 of the FW Act;
(c)in relation to the matters set out below, acting in his capacity and within the scope of his authority as an official, employee, officer and/or agent of the Seventh Respondent;
(d)a WHS entry permit holder under Part 7 of the Work Health and Safety Act 2011 (ACT) (WHS Act); and
(e)a 'permit holder' within the meaning of that term in s. 12 of the FW Act.
3) At all material times the Seventh Respondent was:
(a)an organisation of employees registered under the Fair Work (Registered Organisation) Act 2009 (Cth) (FW(RO) Act) and by reason of being so registered, a body corporate by reason of s. 27 of the FW(RO) Act;
(b)a body corporate capable of being sued in its registered name;
(c)an 'industrial association' within the meaning of s. 12 of the FW Act whose membership rules allow membership by persons whose employment consists of or includes building work; and
(d)a 'building association' and a 'building industry participant' within the meaning of s. 4(1) of the FWBI Act.
4) At all relevant times, Village Building Co. Ltd (Village):
(a)was the developer and construction manager of the Nexus project located at 293 Flemington Road, Franklin in the ACT, which involved the construction of 29 townhouses and an underground carpark (Nexus site), and thus a 'building industry participant' within the meaning of s. 4(1) of the FWBI Act;
(b)was the developer and construction manager of the Harrison project located at the corner of Wimmera Street and Mapleton Avenue, Harrison in the ACT, which involved the construction of 60 apartments and townhouses (Harrison site), and thus a 'building industry participant' within the meaning of s. 4(1) of the FWBI Act; and
(c)engaged sub-contractors who employed employees to perform work on the Nexus and Harrison sites (Village Project Workers).
5) At all relevant times, Village Project Workers were eligible to be members of the Seventh Respondent.
6) At all relevant times, the Nexus site and Harrison site were 'premises' for the purposes of Part 3-4 of the FW Act.
7) At all relevant times, Village was the 'occupier of the premises' for the purposes of Part 3-4 of the FW Act.
8) At all relevant times, Victory Homes Pty Ltd (Victory):
(a)was the developer and head contractor of the Stromlo Terrace Project at Max Jacobs Drive, Wright in the ACT, which involved the construction of 106 apartments (Stromlo site), and thus a 'building industry participant' within the meaning of s. 4(1) of the FWBI Act; and
(b)engaged sub-contractors who employed employees to perform work on the Stromlo Site (Victory Project Workers).
9) At all relevant times, Victory Project Workers were eligible to be members of the Seventh Respondent.
10) At all relevant times, the Stromlo site was 'premises' for the purposes of Part 3-4 of the FW Act.
11) At all relevant times, Victory was the 'occupier of the premises' for the purposes of Part 3-4 of the FW Act.
Background
12) The proceedings concern events that are alleged to have occurred across three construction sites in Canberra, being the Nexus, Harrison and Stromlo Sites, during the period August 2013 to March 2014.
21 August 2013 — Nexus
13) On the morning of 21 August 2013, the First Respondent (Hall), the Third Respondent (Lomax) and the Fourth Respondent (O'Mara) entered the Nexus site in exercise of their right conferred by the WHS Act to enter premises to inquire into' a suspected contravention of the WHS Act.
14) Hall and O'Mara produced their WHS permits to Azzopardi and Northey.
15) Hall and O'Mara walked onto the Nexus site.
16) Hall and O'Mara later left the Nexus site.
21 October 2013 - Nexus
17) On 21 October 2013 Lomax and Hall entered the Nexus site seeking to exercise their right conferred by the WHS Act to enter premises to inquire into a suspected contravention of the WHS Act.
18) While on site, Hall had a conversation with Michael Mende (Mende), a concrete pump operator, about whether the sling attached to the concrete pump was safe to use.
19) Lomax was nearby during Hall's conversation with Mende.
20) Mende subsequently left the site.
21) Hall and Lomax later left the Nexus site.
30 October 2013 - Nexus
22) On the morning of 30 October 2013 Hall and Smith entered the Nexus site in exercise of their right conferred by the WHS Act to enter premises to inquire into a suspected contravention of the WHS Act.
23) Northey met Hall and Smith at the Nexus site office. Hall and Smith produced their WHS permits.
24) Hall and Smith entered the site.
25) Hall and Smith later left the site.
30 October 2013 - Harrison
26) Hall and Smith walked over to the Harrison site.
27) Hall and Smith entered the Harrison site in exercise of their right conferred by the WHS Act to enter premises to inquire into a suspected contravention of the WHS Act.
28) Hall and Smith later left the Harrison site.
20 January 2014 - Stromlo
29) On 20 January 2014, Hall and Smith entered the Stromlo site in exercise of their right conferred by the WHS Act to enter premises to inquire into a suspected contravention of the WHS Act.
30) Hall and Smith approached the Stromlo site office. Crncevic requested that they show their permits and sign in the site register.
31) Hall produced his WHS permit and produced a reduced size photocopy of his FW Act permit.
32) McInnes then entered the Stromlo site office and requested to see Hall's permit. Hall said to McInnes words to the effect of "I have already shown it to Martin".
33) Hall and Smith entered the site.
34) Hall and Smith later left the site.
28 January 2014 - Harrison
35) On 28 January 2014, Hamilton entered the Harrison site seeking to exercise, his rights conferred by the WHS Act to enter premises to inquire into a suspected contravention of the WHS Act.
36) He later left the site.
11 March 2014 - Harrison
37) On 11 March 2014 Hamilton entered the Harrison site in exercise of his right conferred by the WHS Act to enter premises to inquire into a suspected contravention of the WHS Act.
38) Hamilton showed his permits to a Village manager.
39) Hamilton provided a form to a Village manager, believed to be Hajdar.
40) At a later time, O'Mara entered the Harrison site in exercise of his right conferred by the WHS Act to enter premises to inquire into a suspected contravention of the WHS Act.
41) Officers from the Australian Federal Police (AFP) attended the Harrison site.
42) Hamilton and O'Mara later left the Harrison site.
Overview of Contraventions
34.The following document was prepared by the parties at the request/suggestion of the Court. It provides, as its name implies, an overview of the contraventions pleaded, the parties and building sites involved, and the relevant sections of the FW Act “in play.”
| Overview of Contraventions | ||||
| DATE | SITE | ALLEGED CONTRAVENTION/S | APPLICANT WITNESSES | RESPONDENT WITNESSES |
| 21 August 2013 | NEXUS | First Respondent (Hall) & Seventh Respondent (CFMEU) (Contravention 1) | ||
| · s 497 (producing entry permit) · s 793 (liability of CFMEU) | Mark Azzopardi, Peter Northey | Dean Hall, Jason O’Mara, Anthony Vitler | ||
| Fourth Respondent (O’Mara) & Seventh Respondent (CFMEU) (Contravention 1) | ||||
| · s 497 (producing entry permit) · s 793 (liability of CFMEU) | Mark Azzopardi, Peter Northey | Dean Hall, Jason O’Mara, Anthony Vitler | ||
| 21 October 2013 | NEXUS | First Respondent (Hall) & Seventh Respondent (CFMEU) (Contravention 2) | ||
| · s 500 (permit holder must not hinder or obstruct) · s 793 (liability of CFMEU) | Stephen Fox, Mark Azzopardi, Michael Mende, Christopher Pothan, Ryan Drury, Bryan Leeming | Dean Hall, Garry Hamilton, Johnny Lomax | ||
| · s 500 (permit holder must not hinder or obstruct - acting in an improper manner) · s 793 (liability of CFMEU) | Stephen Fox, Mark Azzopardi, Michael Mende, Christopher Pothan, Ryan Drury, Bryan Leeming | Dean Hall, Garry Hamilton, Johnny Lomax | ||
| Second Respondent (Kivalu) & Seventh Respondent (CFMEU) (Contravention 2) | ||||
| · s 500 (permit holder must not hinder or obstruct) · s 793 (liability of CFMEU) | Perica Mioc | |||
| · s 500 (permit holder must not hinder or obstruct - acting in an improper manner) · s 793 (liability of CFMEU) | Perica Mioc | |||
| Third Respondent (Lomax) & Seventh Respondent (CFMEU) (Contravention 3) | ||||
| · s 500 (permit holder must not hinder or obstruct - aided and abetted the First Respondent) · s 550 (aid and abet) · s 793 (liability of CFMEU) | Stephen Fox, Mark Azzopardi, Christopher Pothan, Ryan Drury | Dean Hall, Garry Hamilton, Johnny Lomax | ||
| · s 500 (permit holder must not hinder or obstruct - acting in an improper manner) - was knowingly concerned in Frist Respondent's s 500 contravention · s 550 (knowingly concerned) · s 793 (liability of CFMEU) | Stephen Fox, Mark Azzopardi, Christopher Pothan, Ryan Drury | Dean Hall, Garry Hamilton, Johnny Lomax | ||
| 30 October 2013 | NEXUS | Fifth Respondent (Smith) & Seventh Respondent (CFMEU) (Contraventions 4 & 5) | ||
| · s 499 (comply with a reasonable OHS requirement) · s 793 (liability of CFMEU) | Peter Northey, Stephen Fox, Mladen Rogic, Jarrad Sibley | Dean Hall, Zachary Smith | ||
| · s 500 (permit holder must not hinder or obstruct - act in an improper way) · s 793 (liability of CFMEU) | Peter Northey, Stephen Fox, Mladen Rogic, Jarrad Sibley | Dean Hall, Zachary Smith | ||
| First Respondent (Hall) & Seventh Respondent (CFMEU) (Contravention 6) | ||||
| · s 503 (Misrepresentations about things authorised by this Part) · s 793 (liability of CFMEU) | Peter Northey, Stephen Fox, Mladen Rogic, | Dean Hall, Zachary Smith | ||
| · s 503 (Misrepresentations about things authorised by this Part - reckless as to whether impression given of doing a thing authorised by this Part) · s 793 (liability of CFMEU) | Peter Northey, Stephen Fox, Mladen Rogic, | Dean Hall, Zachary Smith | ||
| HARRISON | First Respondent (Hall) & Seventh Respondent (CFMEU) (Contravention 7) | |||
| · s 499 (comply with a reasonable OHS request) · s 793 (liability of CFMEU) | Stephen Fox, Mladen Rogic, Jarrad Sibley | Dean Hall, Zachary Smith | ||
| Fifth Respondent (Smith) & Seventh Respondent (CFMEU) (Contravention 8) | ||||
| · s 499 (comply with a reasonable OHS request) · s 793 (liability of CFMEU) | Stephen Fox, Mladen Rogic, Jarrad Sibley, Michael Thomson | Dean Hall, Zachary Smith | ||
| 20 January 2014 | STROMLO | First Respondent (Hall) & Seventh Respondent (CFMEU) (Contraventions 9, 10, 11 & 12) | ||
| · s 497 (producing entry permit · s 793 (liability of CFMEU) | Martin Crncevic, Donald McInnes | Dean Hall, Zachary Smith, Jason Wade | ||
| · s499 (comply with a reasonable OHS request) · s 793 (liability of CFMEU) | Martin Crncevic, Donald McInnes | Dean Hall, Zachary Smith, Jason Wade | ||
| · s500 (permit holder must not hinder or obstruct – acting in an improper manner) · s 793 (liability of CFMEU) | Martin Crncevic, Donald McInnes | Dean Hall, Zachary Smith, Jason Wade | ||
| · s 503 (misrepresentations about things authorised under this Part) · s 793 (liability of CFMEU) | Martin Crncevic, Donald McInnes | Dean Hall, Zachary Smith, Jason Wade | ||
| · s503 (misrepresentations about things authorised under this part – reckless as to whether impression given of doing a thing authorised under this Part) · s 793 (liability of CFMEU) | Martin Crncevic, Donald McInnes | Dean Hall, Zachary Smith, Jason Wade | ||
| 28 January 2014 | HARRISON | Second Respondent (Kivalu) & Seventh Respondent (CFMEU) (Contraventions 13 & 14)) | ||
| · s500 (permit holder must not hinder or obstruct – acting in an improper manner) · s 793 (liability of CFMEU) | Mark Azzopardi, Goran Hajdar | Garry Hamilton | ||
| · s 503 (misrepresentations about things authorised under this Part) · s 793 (liability of CFMEU) | Mark Azzopardi, Goran Hajdar | Garry Hamilton | ||
| · s503 (misrepresentations about things authorised under this part – reckless as to whether impression given of doing a thing authorised under this Part) · s 793 (liability of CFMEU) | Mark Azzopardi, Goran Hajdar | Garry Hamilton | ||
| 11 March 2014 | HARRISON | Sixth Respondent (Miller) & Seventh Respondent (CFMEU) (Contravention 15) | ||
| · s 494 (official must be a permit holder to exercise a State or Territory OHS right) · s 793 (liability of CFMEU) | Admitted by Sixth and Seventh respondents | |||
| Second Respondent (Kivalu) & Seventh Respondent (CFMEU) (Contravention 16) | ||||
| · s499 (comply with a reasonable OHS request) · s 793 (liability of CFMEU) | Stephen Fox, Goran Hajdar, Mark Azzopardi | Anthony Vitler, Jason O’Mara, Garry Hamilton | ||
| Fourth Respondent (O’Mara) & Seventh Respondent (CFMEU) (Contraventions 17 & 18) | ||||
| · s499 (comply with a reasonable OHS request) · s 793 (liability of CFMEU) | Stephen Fox, Goran Hajdar, Mark Azzopardi | Anthony Vitler, Jason O’Mara, Garry Hamilton | ||
| · s503 (misrepresentations about things authorised under this part – reckless as to whether impression given of doing a thing authorised under this Part) · s 793 (liability of CFMEU) | Stephen Fox, Goran Hajdar, Mark Azzopardi | Anthony Vitler, Jason O’Mara, Garry Hamilton | ||
The Nexus Site: 21st August 2013
Factual Summary
35.This contravention concerns an incident that involved two managers of the building company Village, Mr Azzopardi and Mr Northey, and the First and Fourth Respondents, Mr Hall and Mr O’Mara. It is alleged that these Respondents failed to provide their Federal entry permits – one of the two required permits to be produced for the purposes of entering a building site, for inspection upon request.
36.In general terms, the Commissioner alleged that of the two permits required to be produced, the Work Health and Safety permit (“the WHS permit”) and the Federal entry permit (issued pursuant to s.512 of the FW Act), Mr Hall (a) did not produce his federal entry permit, and (b) only produced a shrunken version of the WHS permit that was held up for the Village employees to inspect, rather than it being handed over for inspection.
37.Formally, as pleaded in the Further Amended Statement of Claim (“FASOC”), the Applicant contended that the First Respondent (Mr Hall) did not produce his Federal entry permit when requested to do so.[7] Mr Hall and Mr O’Mara both denied this, and said that they were not requested to do so.[8]
[7] See FASOC at pars.17 – 19.
[8] See Amended Defence at pars.17 – 19.
Summary of Contraventions
38.It was alleged that the First (Hall) and Fourth (O’Mara) Respondents failed to produce an entry permit at the Nexus site on 21st August 2013, in contravention of s.497. By virtue of this conduct, and by operation of s.793 of the FW Act, it was pleaded that the Seventh Respondent Union contravened the FW Act also.
39.Section 497 of the Fair Work Act 2009 provides as follows:
A permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer.
Note: This section is a civil remedy provision (see Part 4‑1).
40.Section 793 relevantly is in the following terms:
793 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Applicant’s Evidence
Evidence of Mr Azzopardi
41.Mr Azzopardi was relevantly employed at the time of the alleged contravening conduct by Village as the National Construction Manager, though he confirmed that he is now no longer employed by Village and no longer works in the Canberra region. He gave evidence in relation to four contraventions, including the circumstances that gave rise to the current contravention.[9]
[9] Mr Azzopardi’s affidavit, affirmed 5th February 2016, was filed on 18th February 2016. He dealt with the circumstances that give rise to the current contravention at pars.15 – 47. In those paragraphs he deposed, among other things, to Mr Hall and Mr O’Mara not showing their “Federal Permits”. He deposed further that Mr O’Mara said words to the effect that they only needed to show their WHS permit. He also deposed that the WHS permit produced by Mr O’Mara was shrunken, and that he could not read the writing on it.
42.Despite his position as National Construction Manager, Mr Azzopardi was somewhat unclear as to the specific site safety rules that were in place at the time the incidents occurred, though he confirmed he was aware that there were site safety rules in place at the time of the alleged incidents.[10] He was a somewhat diffident witness but otherwise gave his evidence in a straight-forward and fair manner. I have no reason to doubt his evidence. This general assessment of his evidence should be taken to apply to all other matters in relation to which Mr Azzopardi gave evidence.
[10] T 13. A copy of these undated Site Safety Rules is provided at annexure MAO2, pp.21 – 26 of his February 2016 affidavit.
43.Mr Azzopardi confirmed that he was aware of the entitlement of Union officials to enter sites upon the production of the proper permits.[11] He stated that he was not aware at the time that they were entitled to enter without notice.[12] He acknowledged that Union officials were required to form a reasonable suspicion of a particular breach or danger to workers on site, but denied inserting a further requirement that he too must satisfy himself of such a suspicion.[13] He confirmed that upon entry, permit holders had to be escorted on site.[14] He confirmed that he took the view that they had to be escorted to the breach that they suspected and to that breach only; this was his understanding at the time.[15] He denied characterising this as a ‘fishing expedition’.[16]
[11] T 14
[12] T 14
[13] T 14
[14] T 15
[15] T 15
[16] T 15
44.Mr Azzopardi confirmed that he was aware of the ‘two person rule’, as it was referred to, in the site safety rules.[17] He gave evidence that this rule was to prevent people wandering off on their own on an active, and consequently, potentially dangerous, building site.[18]
[17] T 15
[18] T 15
45.In relation to the first incident on 21st August 2013, Mr Azzopardi was somewhat, but perhaps understandably, vague on the details of the event, which occurred approximately 3 years prior, and agreed that he may be confused with other incidents.[19]
[19] T 16
46.He gave evidence that, on the date in question, Mr Hall and Mr O’Mara arrived onsite with Mr Lomax and Mr Hamilton. He recalled asking Mr Hall and Mr O’Mara for their permits.[20] He confirmed that the Master Builders Association had told him that he was entitled to ask for permits, and should this request be refused he was entitled to regard that person as a trespasser and to call the police.[21] He said that apart from a few early occasions, they (i.e Village management personnel) always asked for permits to be produced.[22]
[20] T 16
[21] T 18
[22] T 17
47.Mr Azzopardi confirmed that he had never seen Mr Hall’s federal permit but that he had seen his Work Health and Safety permit on approximately four previous occasions when these CFMEU officials had attended a worksite.[23] He also confirmed it was (and is) his understanding that the Union officials were required to show both permits when seeking to access a building site. He confirmed further that it is his understanding that if the Union official did not show both permits, he could regard them as a trespasser. He confirmed that on other occasions when permits had not been shown, he had called the police. He confirmed that the police were not called on the occasion of 21st October 2013. He said he was present when Mr Northey also made a request of Mr Hall and Mr O’Mara to provide their permits for inspection.
[23] T 17 – 18
48.Mr Azzopardi confirmed seeing a permit that was approximately the size of a credit card “like a business card”.[24]
[24] T 21. There was some discussion, following a demonstration by Mr Azzopardi, regarding how the reduced permit was in fact held by Mr O’Mara and the placement of his fingers over certain information on the card. See T 21 – 23.
49.Mr Azzopardi also confirmed that he told Mr O’Mara and/or Mr Hall that he was unable to read what was on “the card” (being the shrunken permit).[25]
[25] T 24
50.Giving detail regarding how Mr Hall and Mr O’Mara produced or provided their shrunken “permits” for inspection, Mr Azzopardi demonstrated the grip that Mr O’Mara had on a similarly-sized business card, which indicated that he had an obstructed view of the permit, the detail of which was difficult to see.[26] He said that he told Mr O’Mara and Mr Hall that he could not read what was on the card.[27] He said that Mr Hall and Mr O’Mara covered the dates on the permits that were produced; he said that he wanted to look at the dates, and that he wanted to take the card off them to do so, but they refused to hand their permits over for inspection. When asked why the dates were important, Mr Azzopardi said that he wanted to see that they were not out of time.[28]
[26] T 22
[27] T 24
[28] T 51
51.There was further clarification of Mr Azzopardi’s evidence (somewhat repetitiously) regarding the card being held by one or both of the Union officials (Mr Hall and Mr O’Mara). Mr Azzopardi said that on some occasions he was shown a [shrunken] permit/card with a thumb or finger covering relevant details and that it would be just “shoved in his face” and then the card would be put back in the Union official’s pocket. He confirmed that he asked both Union officials if he could have the opportunity to be able to look at the card without it being held.[29] He said he asked this of them on many occasions. He confirmed that some officials showed the shrunken permit or card simply with the [relevant] date covered up. He said he wanted to take the card off the union officials and have a look at it.[30]
[29] T 30
[30] T 30
Evidence of Mr Northey
52.The Applicant’s only other witness in relation to this contravention was Mr Peter Northey.[31] Mr Northey was a quite uncomplicated, straight-forward witness. I have no reason at all to doubt his evidence in relation to each of the incidents for which he gave evidence. Regarding the incident on 21st August 2013, his evidence was as follows:
(a)He could recall the incident and Mr Hall and Mr O’Mara holding their respective permits;
(b)Mr Northey confirmed that he asked Mr O’Mara for the permit card in order that he could see that it was still current;[32]
(c)He said the situation was ‘comic’ because they would not let go of the card so that it could be checked. He said that Mr Hall held the permit card in the same manner as Mr O’Mara. He also said that he was not the only person trying to inspect the card; Mr Azzopardi was trying to do the same;
(d)Mr Northey said that he asked Mr Hall and Mr O’Mara if their cards could be looked at. The response was that each of the Union officials moved to hand over their permits but then withdrew them and held on to them tightly;[33]
(e)He said that he had a clear recollection of the day and the events that occurred on it. He disagreed firmly with the proposition put to him that both of the Union officials in fact showed him their “federal permits” and that the dates of the permits were plainly visible;[34]
(f)He agreed however that if there was any doubt about the currency of the permits he would not have allowed the Union officials on to the site;[35]
(g)Mr Northey further said that on this occasion, he allowed the Union officials on to the site, did a “site walk” with them, noting that he did not wish to obstruct them, and finally, later that day, a car “came from nowhere” and handed the officials their federal permits (their size was noted as “A4”).[36] Later he confirmed that he was simply assuming that it was the federal permits that had arrived by car later that day (around 11.40am); they were not given to him but to someone else on the site. He never actually saw the “federal permits.”[37]
[31] Mr Northey’s affidavit, affirmed 17th February 2016, was filed on 18th February 2016. His very brief account of the events on 21st August 2013 at the Nexus site are set out at pars.6 – 9. Summarised, he deposed that he requested all of the CFMEU officials who were seeking to enter the site, including Mr Hall and Mr O’Mara, to provide their “permits.” He said that they produced their WHS permits, held on to them even when he attempted to take them to inspect, and kept their thumbs over the expiry date of the permit. He said that he had worked in the construction industry for over 35 years.
[32] T 89
[33] T 90
[34] T 91
[35] T 91
[36] T 92
[37] T 95 – 96
Respondent’s Evidence
Affidavit Evidence of Mr Hall
53.At all relevant times, Mr Hall was the ACT Branch Secretary of the Union. By virtue of that position he was centrally involved in the majority of incidents that give rise to the contraventions alleged in these proceedings. Because of his pivotal position, and otherwise, it is as well to make some observations regarding his evidence that has general application to all of the contraventions that are the subject of this litigation.
54.By way of background, Mr Hall is a well-educated person, with degrees in education and social work. He has wide experience across a number of fields. He was initially employed as a high school teacher and later moved (to speak generally) into the area of workplace health and safety in the construction industry.[38] He said he did so, in part, because of the number of fatalities and serious accidents on building sites, which led to his involvement with counselling families and workers in circumstances where, he said, there were no counselling or welfare and support services.
[38] Mr Hall’s work and related history is found in a number of places, such as T 383 – 384.
55.To anyone listening to Mr Hall’s account it was obvious that his over-riding concern is for the welfare of workers on building sites. To speak generally, and subject to specific matters detailed in relation to each of the incidents in question set out below, I took his evidence to be completely genuine and that his intention or object in going on to building sites in the instances recounted in these reasons was not to make life difficult for builders or contractors or workers, and still less simply to score political or other “points”, so to speak. It was indisputably out of concern for the safety and well-being of workers (and all others presumably) on site.
56.I found Mr Hall to be an engaging, candid and patient witness who was, because of his critical involvement with the Seventh Respondent Union, required to be in the witness box for considerable periods of time. His manner and demeanour accorded with comments by one or more of the Applicant’s witnesses, who commented on their generally fruitful and easy engagement with Mr Hall, certainly in “one on one” situations, but perhaps not quite as relaxed when in a group situation.
57.A little later in his evidence, Mr Hall agreed that when on a building site, he often (or usually) spoke in “short-hand” or abbreviated terms. He said that he typically “assumed” certain knowledge of workers and or management. He acknowledged, however, that often management and others do not have the knowledge of various safety and other requirements, which he said was very frustrating, and obviously potentially dangerous. This was especially so, in his view, for builders who he described as “third or fourth tier”, that is those who were not as accomplished or (in his view) as experienced and reliable as the larger, more prominent and experienced building companies.[39] He said: “So, yes, I would … summarise things and I assume knowledge and I probably, in the heat of the moment, it’s not the best thing and I should slow down and try to explain things to people better.”[40]
[39] See T 463 - 64
[40] T 433
58.Mr Hall’s acknowledged tendency to use abbreviated terms and to speak in a form of “short-hand” with harried and pressured management or contractors, while understandable, as well as his own intensity and concern to ensure that workers were not at risk, was, in my view, more likely to lead to obfuscation and or lack of precision with those persons. It was and is more likely that, if some extra time and patience was taken to explain a particular regulation or safety principle regarding the issues on the site in question, this would pay far better dividends than rushing to point out perceived problems, in abbreviated terms, and to seek to correct matters by Union intervention.
59.Mr Hall deposed his evidence (curiously stated to be both on “oath and affirm”, rather than one or the other) in two affidavits, filed respectively on 11th April 2016 and 16th September 2016.
60.In relation to the 21st August 2013 “shrunken right of entry – permit” contravention, his evidence was as follows.[41]
[41] The fundamentals of Mr Hall’s evidence in relation to this contravention are at pars.9 – 29 of his 8th April 2016 affidavit.
61.Mr Hall said that he was asked, by a person, who he now acknowledges (but did not know at the time) as Mr Northey, at the site office to show his “WHS permit.” He said that this permit was “credit card sized” and that he kept this permit in his wallet. He said that he could not recall the specifics regarding how he showed Mr Northey this permit, but confirmed that every time he enters a site he goes through the same process. This included, he said, holding the permit in front of the person for a sufficient period “until they are satisfied that I hold a valid entry permit.” (par.16)
62.On this occasion he said that he could not recall anyone saying words to the effect that “I can’t read the date on that.” He also said that generally he did not hand over his permit and he did not recall anyone trying to take his “state” permit from him. There was, he said, nothing that he recalled that made his entry on this day unusual. Nor could he remember putting his thumb over any of the smaller writing on the card. There was no reason for him to obstruct the view of his [ACT WHS] permit.
63.Mr Hall said that he could not recall if he was asked for his FW Act permit on this occasion. He said that if he had been asked he would have shown it without hesitation. (par.20) He said he kept this permit in the glove-box of his car.
64.He also said that, given his intention to get on to a site as quickly as possible so that he could address the relevant safety issue(s), it was illogical that he would not show his federal permit, especially since he understood that he was required to show such a permit when asked. On this occasion he had a valid federal permit, and as with every other occasion, he would have wished to get on to the site as quickly as possible. He did not recall any hostility this day on this site.[42]
[42] The remainder of this section of his affidavit (pars.24 – 27 & 29), Mr Hall set out the various safety issues he identified on the site. Copies of Mr Hall’s various ACT and federal permits are annexed at “DH1” and “DH12” of his original affidavit, filed 11th April 2016. See also Exhibits DH-A 1-4 being original and copies of various permits of Mr Hall, including the “shrunken” permits.
65.Mr Hall confirmed that he “shrunk” the federal permit to enable him to carry it in his wallet.[43]
[43] T 381
66.By way of observation only at this stage, the writing and other details on the “shrunken” federal permit were, in my view, if not illegible, at least extremely difficult to read. It rather begs the question (not to be answered here) why such permits were then not issued by the relevant authority in a legible and intelligible form akin to a standard driver’s licence. Be that as it may, in my view, most people would have some difficulty, under more relaxed and comfortable circumstances, to read the detail on the shrunken permit. To be able to readily check out such detail on a busy building site, at some distance while held by a Union official, would be exceedingly difficult and problematic.
Oral Evidence of Mr Hall
67.In his oral evidence, Mr Hall said (in the context initially of s.119 of the Work Health and Safety Act (ACT)) that it was often the case, or at least common practice on many sites, that no permit was asked for and Union officials went on site “in a collaborative way.”[44]
[44] T 477
68.Regarding the 21st August 2013 incident on the Nexus site, summarised, Mr Hall said:[45]
(a)He alternated between evidence that on this occasion he had the shrunken federal permit in his wallet with his WHS permit, or the larger, regular size Federal permit in his car. Further, he said that sometimes he had the larger permit with him, but folded, to enable him to carry it more easily. But generally, he said that he was unclear in his recollection of some aspects on this day;
668.Further, ss.494 and 499 of the FW Act each involve the expression (and in turn certain conduct by) “the permit holder”. That same expression is also found in s.500 of the FW Act. However, in relation to the pleaded contraventions under s.500, the Union says that it cannot be a “permit holder”, which (it says) leads to the conclusion is that it cannot be liable under s.793 of the FW Act.
669.In my view, it is illogical, in fact and in law, to contend that, for the purposes of ss.494 and 499 (both of which involve a “permit holder” and conduct by such a person) the Union is liable pursuant to s.793 of the FW Act but not for the purposes of s.500.
670.In my view, the comments of Charlesworth J in Robinson noted above at [661], which refer to the importance of the facts and the elements of the contraventions involved, actually assist the Applicant, precisely because the elements of each of the contraventions have been relevantly established against each of the individual Respondents, and there has been no disavowal of their conduct. Moreover, other decisions, noted below, in my view, clearly sheet home to their employer, the CFMEU, the established liability of each of the individual Respondents arising from their conduct.
671.For example, in the context of the action of a Union official regarding an enterprise bargaining agreement, and obviously also in a different legislative context, in A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union, Gyles J said, at [71] – [72]:[384]
[71] The next question is whether either or both of CFMEU and CFMEU NSW are liable for the conduct of Lane. The leading Full Court authority as to that question in relation to these provisions is Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530, particularly at [48]–[85]. It is not necessary to set that passage out. Lane’s conduct was within the scope of his employment and his inferred actual and apparent authority as an officer of CFMEU. He was not on a frolic of his own. He was accompanied by other officials. Meetings took place at the Union office. The objective of entering into an EBA with LGB was a normal Union objective. The position in relation to CFMEU NSW is not quite so clear. Lane is a conference delegate. The later correspondence with the State President of CFMEU NSW did not repudiate his authority and it described those concerned collectively as "our Wollongong officials". The draft EBA proffered by Lane was with the CFMEU NSW. I am satisfied that he represented both organisations.
[72] In my opinion, consistently with the reasons of the Full Court in Hanley (2000) 100 FCR 530, each of CFMEU and CFMEU NSW was liable for breach of s 170NC by reason of the actions of Lane, both under the general law and pursuant to s.349 of the Act. I am also satisfied that Lane and those organisations can all be liable. The reasoning of Merkel J in Seven Network (Operations) Ltd (2001) 109 FCR 378 at [45]–[47] to that effect receives support from the decision of the High Court in Houghton v Arms (2006) 225 CLR 553.
[384] A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2007) 165 IR 94.
672.In Australian Workers’ Union v Leighton Contractors Pty Ltd (“Leighton Contractors”), the Full Court of the Federal Court of Australia considered the operation and effect of s.793 of the FW Act. This was in the context of a challenge to the approval of certain enterprise agreements by the Full Bench of Fair Work Australia relating to construction work on certain mine sites in Queensland. At [82] and [84] – [90], Katzmann J said (McKerracher J agreeing; emphasis added):[385]
[385] Australian Workers’ Union v Leighton Contractors Pty Ltd (2013) 209 FCR 191 (“Leighton Contractors”).
[82] I agree with the Full Bench that, even if Mr Close did not have the authority to sign the agreements on the CFMEU’s behalf, s 793 of the FW Act would entitle the employers and the FWA to regard the signing of the agreements by Mr Close as the execution of the agreements by the CFMEU.
…
[84] The AWU submitted that s 793 did not apply for a number of reasons.
[85] First, it argued that the section was only concerned with making a body corporate vicariously liable for the conduct of its officers, employees or agents (presumably in the context of civil penalty or other proceedings arising out of contraventions of the FW Act).
[86] This submission must be rejected. In Trade Practices Commission v Tubemakers of Australia Ltd (1983) 76 FLR 455 at 475 Toohey J said of s.84(2) of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)) (which was in similar terms to s 793) that it did not seek to make a corporation vicariously responsible. Rather, its effect is to attribute to the corporation the conduct of the individuals referred to in the section. It is true that s.84(2) provides that the conduct shall be deemed (as opposed to “taken”) for the purposes of the Act to have been engaged in also by the body corporate. But that is a distinction without a difference. The words mean the same thing. Indeed, in Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 (“Hanley”) the Full Court said at [58] that s 349(2) of the WR Act (which is relevantly identical to s 793(1)) “in substance, deems conduct engaged in by the prescribed persons on behalf of the body corporate to be conduct also engaged in by the body corporate”.
[87] The starting point of construction must be the words of the section: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 (“K & S”) at 321. The text of s 793 suggests a broad operation. So does its textual context. It appears in Part 6–5 of the Act which is entitled “Miscellaneous”. Moreover, there is nothing in the legislative history to point to a narrow application. The predecessor of s 793 was s 826 of the WR Act (and s 349 before the Work Choices reforms). It was in substantially the same form, although the order of the subsections differed. The heading to s 826 (and s 349) was “Conduct by officers, directors, employees or agents”. There was no express reference to the liability of the body corporate and there were no subheadings. The legislative history does not suggest that the heading to s 793 was inserted with the intention of narrowing the scope of the section. In any event, in its ordinary meaning “liability for conduct” merely means the condition of being answerable for or bound by the conduct. Liability may be assumed or attributed. Indeed, that is what the law of agency is all about. Had Parliament intended to confine the operation of the section to cases involving contraventions of the FW Act, it could easily have said so.
[88] There is no doubt that Mr Close signed the agreements on the union’s behalf as he did so in the course of the affairs or activities of the CFMEU (see Walplan Pty Ltd v Wallace (1985) 8 FCR at 37). Although he purportedly signed them on behalf of the Divisional Branch, the evidence was that this was an error and the AWU appears to have accepted that. The negotiations were conducted on the CFMEU’s behalf. Mr Close’s signature was placed on the agreements to signify its consent, not (or not only) the consent of the Divisional Branch.
[89] But the AWU argued that s 793 does not operate to permit FWA to regard the signature of Mr Close as a signature on behalf of the union because the section contemplates that both the natural person and the corporation are taken to have engaged in the conduct as distinct from one being the act of another. There are two answers to this submission. In the first place, the section does nothing of the kind. Its factual premise is that the natural person has engaged in certain conduct. It then moves from that premise to attribute or assign liability to the body corporate in certain prescribed circumstances. The effect of the section is that Mr Close’s signature is also the signature of the CFMEU, provided, of course, that in signing the document Mr Close was acting within the scope of his actual or apparent authority. In the second place, the proposition is a non sequitur.
[90] The AWU also argued that, because s 794 speaks of the signature of an authorised officer and because the Organisation Act requires that the CFMEU make provision in its rules as to who that officer might be, s 793 cannot be interpreted in such a way as to “sweep away” the effect of those provisions by permitting an unauthorised person to be deemed to be authorised by the mere act of signing a document. But s 793 does not operate in this way. It is not merely the conduct that enlivens the operation of the section. There are three preconditions. First, the conduct must be engaged in on behalf of the body corporate. Secondly, the conduct must be engaged in by an officer, employee or agent of the body corporate. Thirdly, the officer, employee or agent must have been acting within the scope of his or her apparent authority.
673.A similarly expansive approach to s.793, also in the context of negotiating and executing enterprise agreements, was taken by the Full Court in Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd. At [121] and following, Buchanan and Jagot JJ said (Greenwood J agreeing at [64] – [66]):[386]
… the problem with these considerations is that they overlook the effect of s 793 and the scope that section provides for a corporation to be bound by the acts of its agent even if those acts are undertaken without actual authority, provided that the agent acts within the scope of his or her apparent authority.
[386] Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd (2014) 228 FCR 225 (“Kaizen Hospitals”).
674.The Full Court went on to consider, at [95] – [96], [122] and [129], the operation of s.793 in the context of long-standing authority in relation to the law of agency.[387]
[387] In particular the Full Court referred to, among other decisions, the High Court’s comments in Pacific Carriers Ltd v PNB Paribas (2004) 218 CLR 451 at [36].
675.For my part, one curious dimension (or consequence) of the Respondents’ argument, is that the comments of Charlesworth J in Robinson, as propounded by the Union, and obviously from its perspective, could lead to its officials acting with a degree of impunity, if not immunity, whereby their actions would carry no relevant consequence for their employer. This could, or would, create the potential for an inconsistency, if not a disjuncture, between the operation of s.793 for certain kinds of matters (e.g. for the negotiation and conclusion of enterprise agreements), but not for others (e.g. contraventions of the FW Act). In my view, it is important, as far as possible, that the sections of the FW Act operate consistently across all relevant areas, so as to avoid the uncertainty that inconsistency would inevitably bring.
676.An approach that is relevantly consistent in the application of provisions of legislation is not, of course, a novel proposition. For example, in the well-known decision in Project Blue Sky, the High Court said, at [70]:[388]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of those statutory provision.
[388] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
677.More recently still, in Tabcorp Holdings Limited v Victoria, the High Court again reiterated the important and basal principle regarding consistency of interpretation, saying, at [65]:[389]
A consistent meaning should ordinarily be given to a particular term wherever it appears in a suite of statutory provisions.
[389] Tabcorp Holdings Limited v Victoria (2016) 90 ALJR 376; (2016) 328 ALR 375.
678.Finally, if I am wrong in relation to the application in the present matter of the principles articulated by Gyles J in A & L Silvestri Pty Ltd, and by the Full Court decisions in Australian Workers’ Union v Leighton Contractors Pty Ltd and Kaizen Hospitals, in my view the decision of Flick J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union, is even more directly germane to the Court’s determination of the liability of the Seventh Respondent Union under s.793 of the FW Act.[390] At [51] – [58], his Honour said (emphasis added):
[390] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 (“ABCC v CFMEU 2018”). In my view, there is significant correspondence between the Full Court’s comments in Kaizen Hospital, and especially in Leighton Contractors, and those by Flick J in ABCC v CFMEU 2018.
[51] Section 793 of the Fair Work Act is not expressed in such simple terms as s.550. And the purpose of s.793 is different to that served by s.550. Section 793 is directed to identifying those circumstances in which a body corporate is to be “taken ... to have been engaged” in conduct pursued by (for example) “an officer, employee or agent”. The heading to that section is “Liability of bodies corporate”. It is thus a section clearly directed at sheeting home to a body corporate “liability” for the conduct of others. That section provides in relevant part as follows:
Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
...
(5) In this section, employee has its ordinary meaning.
Section 793, unlike s.550, is expressed in terms of identifying those circumstances in which a “body corporate” is “taken” to have been engaged in “conduct” engaged in on its behalf.
[52] A number of questions arise in respect to liability sought to be ascribed to a body corporate pursuant to either s.550 or s.793 by reason of the conduct of “an officer, employee or agent” and the liability which may be assumed by a principal for the conduct of another at common law.
[53] Of present concern are two interrelated difficulties, namely:
· whether an individual who contravenes a provision of the Fair Work Act can be found to be an accessory to the same contravention by reason of the vicarious liability of the CFMEU; and
· whether the CFMEU can be found liable pursuant to ss.550 and 793 of a contravention of a provision, such as s.500, which focuses on the conduct of an individual, being a permit holder.
[54] The former difficulty was addressed, albeit with reference to the legislative scheme set forth in the Trade Practices Act, in Wright v Wheeler Grace & Pierucci Pty Ltd [1988] FCA 129; [1988] ATPR 40-865. When considering s 75B of that Act French J, when sitting as a Judge of this Court, concluded that an individual could not be an accessory to the conduct of a body corporate whose liability arises solely by reason of the conduct of the individual. His Honour there concluded (at 49,376 to 49,377):
This raises a question whether a natural person can be accessory to a corporate principal whose liability arises from the act of that person. There could be a case where a natural person engages in preliminary conduct of an accessorial character followed by distinct conduct attributable to a corporation as principal. But where the conduct upon which liability is founded is the only relevant conduct, it is difficult to see how it can also bear that accessorial character. This difficulty was recognised by the High Court in Yorke & Anor v. Lucas [1985] HCA 65; (1985) 158 CLR 661. The point in issue there related to the requirement that a person involved in a contravention by reason of sec. 75B have knowledge of the essential matters making up the contravention. However, at ATPR p. 47,057; A.L.R. p. 313, in the joint judgment of Mason A.C.J., Wilson, Deane and Dawson JJ the following observation is found:
“It follows from what we have said that both the trial Judge and the Full Court were, in our view, correct in concluding that, upon the facts as found, Lucas was not a person involved in the contravention of s.52 constituted by the false representations and that he was, therefore, not liable in damages under s.82 We would only add, lest it be thought that it has escaped our attention, that the appellants may, even if knowledge were not necessary to involvement under para. (a) or under para. (c) as ‘party to’, have encountered difficulty in establishing that Lucas was involved within the meaning of sec. 75B in the contravention constituted by the making of the false representations, having regard to the fact that the representations, albeit made on behalf of the Lucas company, were made by Lucas himself. As Dixon J. observed in Mallan v. Lee (1949) 80 CLR 198, at p. 216:
‘It would be an inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts.’”
Section 75B of the Trade Practices Act is in similar terms to s.550 of the Fair Work Act in that both sections are concerned with what it means to be “involved in” a contravention.
[55] The liability of an individual as an accessory to a contravention by a body corporate whose liability arises by reason of the conduct of that individual being deemed to be the conduct of the body corporate was considered in the context of the Fair Work Act in Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528. Albeit in the context of an application for summary judgment, Bromberg J considered whether an individual (Davis) could be an accessory to the liability of the Australian Workers’ Union where the liability of the Union only arose by reason of Davis’ conduct being deemed to be the conduct of the Union pursuant to ss.363 and 793. In declining to strike out such a pleading, his Honour relevantly concluded:
[86] ... the only conduct relied upon by the FWO as conduct of the AWU is the conduct of Davis himself. As Davis submitted, relying upon ss.363(1)(b) and 793(1)(a) the ASOC alleges that the AWU is liable for his conduct by reason of his acting as an officer or agent of the AWU within the scope of his actual or apparent authority. In that context, it was contended that the conduct of Davis relied upon by the FWO to establish both the derivative liability of the AWU and the accessorial liability of Davis is one and the same. It was further contended that where Davis’ conduct as primary perpetrator is said to form the basis of the AWU’s derivative liability, there is no cause of action available against Davis for accessorial liability under s.550.
[87] Davis relied on an observation made by Dixon J in Mallan v Lee (1949) 80 CLR 198 at 216 as follows:
It would be an inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts.
...
[89] ... to my mind, the most relevant authority to which I was taken is Hamilton v Whitehead (1988) 166 CLR 121 where the Court (Mason CJ, Wilson and Toohey JJ) clarified the High Court’s reference in Yorke v Lucas to the observations of Dixon J in Mallan. At 129–130, their Honours drew a distinction between a contravention committed by a corporate contravener as a consequence of being vicariously liable for the conduct of its servant (a circumstance in which, following Mallan, the servant is not capable of being an accessory) and a contravention committed by a corporate contravener as a consequence of actions undertaken by a person whose conduct is deemed to be the conduct of the corporation (a circumstance where the person is capable of being an accessory). Although not expressed, the apparent logic which supports that dichotomy is that in the first case the servant is the principal contravener whilst in the second case the principal contravener is the corporation.
[90] Whether the conduct alleged against Davis falls into the first or second category is a contestable proposition which the submissions of the parties did not address. There is, I consider, force in the proposition that neither s.363(1) nor s.793(1) impose vicarious liability on a body corporate or an industrial association. The terms of those provisions operate to deem the conduct of the officer or agent to be the conduct of the body corporate or the industrial association. If that is correct, Davis’ asserted conduct is distinguishable from Mallan, and therefore Davis is capable of being held to have been an accessory to the AWU’s primary contraventions.
Thus contemplated was the liability of an individual as an accessory to the conduct of the Union which arose by reason of the individual’s conduct being deemed to be the conduct of the Union. The observations of Bromberg J, it is respectfully considered, are correct.
[56] As to the latter of the two difficulties, namely whether ss.550 and 793 can expose the CFMEU to liability for a contravention of s.500 of the Fair Work Act, different issues and difficulties arise. Not the least of these difficulties is the fact that s.500 is drafted in terms which expose a “permit holder” to liability if he (inter alia) intentionally hinders or obstructs any person. An argument that neither s.550 alone or in combination with s.793 can expose an entity such as the CFMEU – which cannot be a “permit holder” – to liability cannot be summarily rejected.
[57] The conclusion has previously been reached that the CFMEU may be found to have contravened such a provision: Australian Building and Construction Commissioner v Upton (2017) 270 IR 190 at 237 to 239. In explaining the route by which that conclusion was reached, and the authorities relied upon, Barker J there said:
[224] In my view, it is, in the end not necessary to consider all the alternative means by which the CFMEU might be held liable for Mr Upton’s contraventions of s.346(a), s.348 and s.500, because I find the CFMEU may be considered liable for Mr Upton’s conduct under s.793 of the [Fair Work Act] in respect of the contraventions of s.346(a) and s.348, and under s.550 and s.793 in respect of the s.500 contravention.
[225] The terms of s.793 have been set out above ...
[226] As I have found those contraventions proved, it follows that the CFMEU is taken to have been engaged in that conduct, and so also to have contravened s.346(a) and s.348.
[227] As to the liability of the CFMEU with respect to the s.500 contravention, in the recent decision of Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088, White J dealt with the submissions of the parties, not dissimilar to those outlined above, concerning the effect of s.793 in conjunction with s.550(2)(c) and the submission that thereby the CFMEU may be taken to have also contravened s.500 where an officer has been found guilty of contravention.
[228] At [32], White J found as follows:
In my opinion, the Represented Respondents’ submission should not be accepted. It overlooks that s.793 operates as a form of deeming provision ‘for the purposes of this Act’. Those purposes include s.500. Section 793(1) requires that the conduct to which it refers be taken to have been engaged in by the body corporate. In this case the conduct of Mr Huddy on 22 October 2013 is to be taken to have been the conduct of the CFMEU. Mr Huddy’s knowledge on 22 October 2013 may be taken to have been the knowledge of the CFMEU.
[229] The judge, at [33], then said that the only question remaining was whether that conduct, with that knowledge, was sufficient to make the CFMEU a person “involved in” the officer’s contravention of s.500. That was to say, the question was whether the CFMEU’s conduct (albeit constituted by its officer’s conduct), with its knowledge of the matters constituting the elements of that contravention of s.500 (albeit constituted by the officer’s own knowledge), meant that it had been knowingly concerned in, or a party to, that contravention.
[230] At [34], White J then stated:
In my opinion, the statutory fictions indicate that this question should be answered in the affirmative. The CFMEU, with its separate legal personality, is deemed to have carried out the same actions as did Mr Huddy on 22 October 2013. Because Mr Huddy was exercising a right of entry pursuant to s.484, his actions constituted a contravention of s.500. As the CFMEU had no right of entry, its actions did not contravene s.500 but, together with its deemed state of mind, indicate that it was knowingly concerned in Mr Huddy’s contravention. So much is apparent from Hamilton v Whitehead (1988) 166 CLR 121 at 128 in which the High Court regarded as ‘plainly right’ the submission that, because the imputed accessory was the actor in the conduct constituting the offences and had knowledge of all the material circumstances, he was “knowingly concerned” in the commission of the offences committed by the company constituted by his conduct.
[231] White J, at [35], agreed with what Charlesworth J said in Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 at [21], to the effect that it did not matter that the deemed physical acts of the secondary participant are the same acts in fact engaged in by the primary contravener.
[232] White J, at [36], expressly rejected the respondents’ submissions that, by legislative construct, the CFMEU had performed “the forbidden act” (the contravention of s.500). His Honour said that because it does not hold an entry permit, the CFMEU’s conduct cannot amount to an act forbidden by s 500 of the FW Act. However, that, he considered, was not a matter of consequence in the consideration of accessorial liability. A person may be involved as an accessory in a contravention by another even if the contravention is of such a nature that the accessory could not have contravened the provision as a principal, referring to Maroney v The Queen (2003) 216 CLR 31 at [11].
[233] His Honour added, at [37], that the case before him was not one in which the conduct of a person constituting a primary contravention by that person or by another whose liability arises from that conduct is then relied upon to establish the liability of the same person as an accessory. Thus, Mallan does not apply in this case.
[234] At [38], White J concluded:
In short, I consider that the statutory fictions established by s 793 mean that the conduct of an official of a body corporate may constitute a primary contravention by the official and accessorial conduct by the body corporate. I am satisfied that the CFMEU should be taken to have contravened s 500 by reason of it having been directly or indirectly knowingly concerned in Mr Huddy’s contravention of s 500.
[235] Understanding that I should apply this reasoning unless I consider it to be plainly wrong, it follows that the CFMEU should be taken to have contravened s 500 by reason of it having been directly or indirectly knowingly concerned in Mr Upton’s contravention of s 500, for the reasons contended for by the Commissioner as set out above.
Concurrence is expressed with the conclusions of both White J in Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 and Barker J in Australian Building and Construction Commissioner v Upton [2017] FCA 847; (2017) 270 IR 190.
[58] Thus, by this route, the CFMEU may be taken to have been “involved in” the contravention of a provision such as s 500 (s 550) where the state of mind of an “officer, employee or agent” is attributed to the CFMEU as being the state of mind of the CFMEU itself (s 793(2)).
679.Respectfully, I accept and adopt the comments of Flick J, and in turn the authorities cited by his Honour.[391] In my view, they are congruent with the general comments by the Full Court in Leighton Contractors, and equally so by the Full Court in Kaizen Hospital.
[391] See further Flick J’s findings of liability against the CFMEU at [299] – [300]. Perhaps somewhat curiously, the matter before his Honour also involved questions regarding, among other things, the safety and efficacy of a “sling” or certified “chain” on a hose at a concrete pour, rather akin to the factual circumstances that surround the contraventions pleaded here in relation to the Nexus site on 21st October 2013.
680.As already mentioned, in my view, for the purposes of certainty, if nothing else, it would be essential to have the most consistent interpretation and application of central sections of major legislation, such as s.793 of the FW Act. Here, in my respectful view, the Full Court decisions in Leighton Contractors and in Kaizen Hospitals, and the use of principles of long-standing and from the highest authority (e.g. Pacific Carriers v PNB Paribas) from the law of agency, provide a clear and straight-forward approach to the operation and application of s.793 of the Act. To adhere to the approach taken in those decisions would give a greater level of coherence, and therefore of certainty, to the application of s.793 to the actions of, for example, Union officials, regardless of whether or not a Union is capable of being a “permit holder.” And if more be needed to ensure that proper accountability and responsibility is taken by, for example, a Union in relation to the conduct of its officials and employees, the further and refined analysis of Flick J (and the authorities to which his Honour referred) in ABCC v CFMEU 2018 should, in my respectful view, be taken as instructive guidance for future matters.
681.Moreover, it would be anomalous (if not more) that, by reference to a Union not being able to be a “permit holder”, a Union (or other “body corporate” for the purposes of s.27 of the Fair Work (Registered Organisation) Act 2009 (Cth)) could escape any liability for the actions of its employees and officials. I have already quoted the clear observations by Katzmann J at [87] (McKerracher J agreeing) in Leighton Contractors earlier in these reasons, but their importance cannot be stressed enough, and therefore I repeat them (emphasis again added):
[87] The starting point of construction must be the words of the section: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 (“K & S”) at 321. The text of s 793 suggests a broad operation. So does its textual context. It appears in Part 6–5 of the Act which is entitled “Miscellaneous”. Moreover, there is nothing in the legislative history to point to a narrow application. The predecessor of s 793 was s 826 of the WR Act (and s 349 before the Work Choices reforms). It was in substantially the same form, although the order of the subsections differed. The heading to s 826 (and s 349) was “Conduct by officers, directors, employees or agents”. There was no express reference to the liability of the body corporate and there were no subheadings. The legislative history does not suggest that the heading to s 793 was inserted with the intention of narrowing the scope of the section. In any event, in its ordinary meaning “liability for conduct” merely means the condition of being answerable for or bound by the conduct. Liability may be assumed or attributed. Indeed, that is what the law of agency is all about. Had Parliament intended to confine the operation of the section to cases involving contraventions of the FW Act, it could easily have said so.
682.Relying then upon the decisions of Flick J in ABCC v CFMEU 2018, and the Full Federal Court in Leighton Contractors and Kaizen Hospitals, I find that the Seventh Respondent Union in the present matter is liable, pursuant to s.793, for those contraventions established against each of the individual Respondents.
683.Otherwise, I accept the submissions of the Applicant in relation to the liability of the Union.
Directions
684.Within 21 days, the parties are to provide to the Court an agreed Minute of the Declarations and Orders to be made that reflects the findings set out in these reasons.
685.In the same Minute, there is to be an agreed timetable for the procedural course regarding the determination of “penalties.”
I certify that the preceding six hundred and eighty-five (685) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 7th December 2018
Annexures
Annexure A – List of Exhibits
| No. of Exhibit | Description of Exhibit | Party who Submitted Exhibit | Witness who Proved Exhibit | Notes |
| Annexure PN1-A | Coloured-in site map Annexure PN1 to Mr P Northey’s affidavit at Tab 23 of Court Book B.2 | Applicant | Mr P Northey | |
| DM5-A | Coloured in site map as marked by witness | Applicant | Mr McInnes | |
| MR-1 | Hand-drawn outline of the site by Mr Rogic in witness box | Respondent | Mr Rogic | |
| JS-A | Site map of Nexus annotated by Mr Sibley | Applicant | Mr Sibley | |
| JS-B | Site map of Harrison annotated by Mr Sibley | Applicant | Mr Sibley | |
| SFA-1 | Site map annexed to Mr Fox’s affidavit 19 February 2016 | Applicant | Mr Fox | |
| MM - 1 | Email and it’s attachment of a Daily checklist from Mick Mende from the ACPA | Applicant | N/A | |
| HK-1 | Mr Kivalu’s permit issued by Fair Work Australia dated 22 November 2012 | Applicant | N/A | |
| B1 | Letters between WorkSafe and officials of the CMFEU Mr Hamilton and Mr Chipperfield | Applicant | N/A | 4 redacted letters to be provided by the Applicants on 6 February 2017 |
| DH-A 1- 3 | Three permits – one original and two copies 1 x WHS permit 1 x shrunken copy of federal permit 1 x A4 original of federal permit | Respondent | Mr Hall | Permits are now expired |
| A1 | Guidance Note from December 2015 in relation to entry on page 2 | Respondent | Mr Hall | Tendered re the ‘2 person rule’ |
| DH 4 | Two shrunken permits March 2010 May 2010 | Respondent | Mr Hall | |
| ZS-A1 | Three CMFEU letters from July 2014 through to November 2014 involving the employment of Mr Smith | Applicant | Mr Hall | Previously marked MF1-1 |
| JOM-A1 | Letter from the FWC to Mr Ball dated 22 July 2014 | Applicant | N/A | |
| DHA-5 | Annexure Amended PN-2 – corrected transcript with amendments by Mr Hall | Applicant | Mr Hall | Tendered as part of cross-examination with consent of the Respondents |
| Z-1 | Audio and video recordings taken by Mr Pothan | Applicant and Respondent’s joint tender | Including the video footage (not just audio). Includes a CD (which has video) and USB Includes an index of the audio files |
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